Hulett and Secretary, Department of Social Services (Social services second review) - [2023] AATA 4501

Hulett and Secretary, Department of Social Services (Social services second review) [2023] AATA 4501 (22 December 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4641
Re:Edward Hulett
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member Lee Benjamin
Date:22 December 2023
Date of written reasons: 7 February 2024
Place:Brisbane

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 10 May 2022. The Tribunal substitutes a decision that the Applicant gifted $233,090.32 for the purposes of section 1126AA of the Social Security Act1991 (Cth).
...............................[SGD].........................................
Member Lee Benjamin
Catchwords
SOCIAL SECURITY – Review of decision of Social Services and Child Support Division – where Applicant transferred proceeds of sale of property to his three children – where proceeds related to Applicant’s deceased partner’s share of family home - whether proceeds transferred as a gift or pursuant to a constructive trust – whether constructive trust exists at law – whether decision made to reduce Applicant’s rate of age pension correct or preferable – decision set aside and substituted
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Imam All Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413
Kintominas v SDSS [1991] FCA 437
Secretary Department of Social Security v Agnew [2000] FCA 59; (2000) 96 FCR 357
Slamkova and Secretary, Department of Social Services [2017] AATA 137
Sternberg and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 787
Thomas and Secretary, Department of Social Services [2022] AATA 2324
Tisdall v Webber (2011) 193 FCR 260
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Member Lee Benjamin
7 February 2024
WHAT IS THIS DECISION ABOUT?

Mr Edward (“Mick”) Hulett is an 81-year-old Age Pensioner. He and his wife, Mrs Margaret Hulett, owned, and lived together in, their family home at Buccan (home) from 1992 until Mrs Hulett passed away in August 2009. Mr Hulett continued to live in the home until May 2021 when, due to failing health, he decided to sell the home and elected to move in with Ms Barbara Gosson, one of his three daughters. Upon selling the home, and from the net sale proceeds of $713,819.38, Mr Hulett transferred $200,000 to Ms Gosson, and his other daughters, Ms Brenda Baker and Ms Carol Ann Edwards. Mr Hulett says that he was bound by, and honoured, an agreement with his late wife that upon selling the home, the deceased’s share of the sale proceeds be distributed equally between their three daughters.
Centrelink assessed (i) the net sale proceeds as an asset for Age Pension purposes; and (ii) the distributions to each of Ms Gosson, Ms Baker and Ms Edwards as gifts and subject to the gifting limits in the Social Security Act 1991 (Cth).[1] Mr Hulett’s Age Pension rate was reduced accordingly.
[1] Sections 1123 – 1127A.
The key question for the Tribunal is whether a constructive trust existed under which Mr Hulett held one half of the home sale proceeds on trust in favour of his daughters. In my view, the evidence substantiates that the answer to this question is yes.
WHAT HAPPENED?
Uncontroversial background facts
The following background facts appear to be uncontroversial.[2]
[2] The background facts have been extracted from the parties’ statements of facts, issues and contentions (Exhibits A1 and R1). Also see Transcript, p 7, lines 1-7.
Mr Hulett was born in 1941. He married Margaret in 1961.
Mr & Mrs Hulett had three daughters together: Carol Ann, Brenda Lee, and Barbara Joyce.
In 1992, Mr & Mrs Hulett purchased the home. Mr & Mrs Hulett held the property as joint tenants.
In December 1998, Mr & Mrs Hulett each made wills with Public Trustee assistance.
In August 2009, Mrs Hulett passed away.
In September 2009, Mr Hulett became the sole legal owner of the home.[3]
[3] Mr Hulett exclusively paid all expenses for the home associated with his living there, such as electricity and water bills. Mr Hulett says that he didn’t split the bills with his daughters because he (not his daughters) were living in the home (Transcript, p 24, lines 30-39).
In September 2021, Mr Hulett effected sale of the home. Mr Hulett received net sales proceeds of $713,819.38. He accepts that the proceeds vested in him. Mr Hulett retained $113,819.38 of the same.
In September 2021 and October 2021, Mr Hulett transferred $200,000 to each of his three daughters ($600,000 in total).
In December 2021, Mr Hulett advised Centrelink that he had (1) sold the home and (2) distributed $600,000 of the net sales proceeds to his daughters. Mr Hulett was advised by Centrelink that the distribution to his daughters would be assessed as gifting,[4] and would affect his age pension rate. Centrelink sent a letter to Mr Hulett outlining his new payment rate and the information used to calculate this. Mr Hulett requested review of the decision regarding his age pension rate. A Centrelink Authorised Review Officer (ARO) affirmed the decision with respect to Mr Hulett’s age pension rate.
[4] The Agency took into account an amount of $590,000 (being $600,000 minus the allowable $10,000) as being gifted for the purposes of the assets test, and thereby taken into account for purposes of the assets test under section 1126AA and cognate provisions of the Social Security Act 1991 (Act), in calculating Mr Hulett's age pension rate.
In January 2022, Mr Hulett applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT) (AAT1) for review of the ARO decision.
In May 2022, the AAT1 affirmed the ARO decision.
In June 2022, Mr Hulett applied to the General Division of the AAT for review of the AAT1 decision.
Mr Hulett accepts that the sale proceeds are capable of meeting the definition of an asset within subsection 11(1) of the Act.
In this case, there is no written agreement or express written trust. There is no suggestion that the home was part of the testamentary estate, nor is there any submission that the home was subject to any testamentary trust.[5]
[5] Transcript, p 48, lines 33-34.
Alleged agreement and alleged trust
Mr Hulett says that there was an agreement between himself, Mrs Hulett and their daughters that was made when Mrs Hulett was alive. He says that, under the same, if one spouse died before the other, that deceased spouse’s interest in the home would eventually be applied to the benefit of their daughters in equal shares, upon the surviving spouse being unable to live independently in the family home, and in exchange for the surviving spouse being provided with suitable accommodation and in-family aged care (Agreement).[6]
[6] Exhibit A2, para 2(a).
Mr Hulett says that, because of the Agreement, Mr Hulett held Mrs Hulett’s share of the home on trust for the benefit of their daughters after Mrs Hulett’s name was removed as a joint tenant from the title upon her death.[7] Mr Hulett contends that, upon selling the home, the equitable interest in one half of the net home sale proceeds was held separately to the legal interest in the same.[8] He says that that half net home sale proceeds ($356,909.69 being $713,819.38 divided by two)[9] was held on constructive trust in favour of his daughters.[10]
[7] Applicant’s supplementary submissions dated 21 August 2023, p 1, para 2.
[8] Exhibit A1, p 6, para 37.
[9] Respondent supplementary submissions dated 4 September 2023, p 1, paras 3 & 4.
[10] Applicant’s supplementary submissions dated 21 August 2023, p 1, para 1.
Alleged trust distributions
Mr Hulett submits that, pursuant to the constructive trust, he distributed $356,909.69 to his three daughters in equal shares ($118,969.89 being $356,909.69 divided by three).[11]
[11] Applicant’s supplementary submissions dated 21 August 2023, p 2, para 6.
Alleged “top up” payments to Mr Hulett’s daughters
Mr Hulett contends that, to reach a round figure of $200,000 to be paid to each of his daughters, he “topped up” what was a trust distribution of $118,969.89 to each daughter with a gift of $81,030.11 out of the half of the home net sales proceeds that he did not hold for them on constructive trust.[12]
[12] Applicant’s supplementary submissions dated 21 August 2023, p 2, para 7.
WHAT QUESTION NEEDS TO BE ANSWERED?
The ultimate issue for the Tribunal is whether the decision to reduce Mr Hulett’s age pension rate to its current rate is correct or preferable. This issue is addressed by determining the extent to which the assessment of Mr Hulett’s transfer of money to his daughters constitutes a gift for the purposes of section 1126AA of the Act. There is no dispute between the parties that this assessment turns on whether a constructive trust existed:[13]
MR COLDITZ: At heart, this is a quite simple case in which the tribunal is asked whether the evidence establishes the existence of a constructive trust over half of the proceeds of sale of the family home in which the applicant resided with his late wife, Margaret.
The half share corresponds with the interest of Margaret. During her lifetime she and her family members agreed that the share would be paid to the children of the marriage in equal shares upon the surviving spouse no longer being able to live independently, and that surviving spouse is the applicant, Mick.
In reliance upon this agreement, Mick’s children, all of whom are witnesses, undertook that they would provide accommodation and in family aged care for Mick and he performed the trust by paying to them the proceeds of the sale of the family home as agreed and in addition to that he topped up the amounts that he paid them so as to arrive at round figures.[14]
[13] Respondent supplementary submissions dated 4 September 2023, p 1, para 2.
[14] Transcript, p 6, lines 4-19.
The key question therefore is whether the Tribunal is satisfied that because of the Agreement between Mr Hulett, Mrs Hulett, and their daughters that was made when Mrs Hulett was alive, Mr Hulett held Mrs Hulett’s share of their home on trust for the benefit of their daughters after Mrs Hulett’s name was removed as a joint tenant from the title upon her death (i.e., is there is a common interest constructive trust?).[15]
[15] Applicant’s supplementary submissions dated 21 August 2023, p 1, para 2.
It is not customary to speak of an onus of proof in Tribunal proceedings. The Tribunal’s role is to carefully evaluate what the evidence adduced actually supports, or not, as the case may be. This underlies the point that there must be a body of evidence which might, reasonably, sustain the inference or fact found.[16] In the absence of independent contemporaneous evidence, the quality and credibility of written and oral witness evidence takes on primary importance. In this application, such evidence must safely establish the existence (or otherwise) of a constructive trust.
[16] Tisdall v Webber (2011) 193 FCR 260 at [127].
If the Tribunal finds that the evidence does not (or is insufficient to) support that a constructive trust exists, then Mr Hulett’s transfer of $600,000 from the net home sale proceeds to his daughters will be taken into account as an amount of $590,000 (being $600,000 minus the allowable $10,000) as being gifted. It would follow that $590,000 would be taken into account as an asset, in calculating Mr Hulett's age pension rate.[17]
[17] Exhibit R1, p 10, para 5.5. For the purposes of the assets test under s1126AA and cognate provisions of the Act.
If the Tribunal finds that the evidence does support that a constructive trust exists, then Mr Hulett will be taken to have held $356,909.69[18] on trust for his three daughters. Mr Hulett’s transfer of the same to his three daughters will be considered as a trust distribution (and not a gift). The balance of Mr Hulett’s transfer to his three daughters ($243,090.32) will be treated as a gift. After taking into account the allowable $10,000, the amount gifted for the Act assets test will be $233,090.32.[19]
[18] Applicant’s supplementary submissions dated 21 August 2023, p 1, para 4; Respondent supplementary submissions dated 4 September 2023, p 1, para 4.
[19] Applicant’s supplementary submissions dated 21 August 2023, p 2, para 10; Respondent supplementary submissions dated 4 September 2023, p 2, para 5.
WHAT IS THE ANSWER TO THE QUESTION?
In my view (and I find that) the totality of the evidence substantiates that there was a common intention constructive trust.
WHY IS THIS THE ANSWER TO THE QUESTION?
Legal framework
The legal framework for this matter is extracted from the Respondent’s Statement of Facts, Issues and Contentions[20] and appears at Appendix 1. There is no dispute between the parties as to the legal framework.[21]
[20] Exhibit R1, p 3-10, paras 4-4.19.
[21] Transcript, p 9, lines 21-24; p 9, lines 42-46.
What constitutes a constructive trust?
The Social Security Guide (Guide) at paragraph 4.12.3.51 describes a constructive trust as follows:
Constructive trusts are non-express trusts and can be imposed by a court irrespective of the intention of the parties. A constructive trust may be imposed by a court where the party with legal title has a fiduciary obligation to another, usually due to past events or actions by the parties. However, the most frequent constructive trust is a common intention constructive trust.
Mr Hulett contends, correctly in my view, that the Tribunal has the power to find legal and equitable interests for the purpose of the social security assets test.[22]
[22] See Kintominas v SDSS [1991] FCA 437.
It is common ground between the parties that Secretary Department of Social Security v Agnew[23] sets out the relevant common law principles as to the fundamental elements of a common intention constructive trust:
the three necessary elements for a constructive trust ‑ a common intention as to the ownership of the beneficial interest, acts to the detriment of the party claiming the beneficial interest, and that it would be a fraud on the claimant for the legal owner to deny that interest.[24]
[23] [2000] FCA 59; (2000) 96 FCR 357.
[24] The Secretary notes that there is some authority to the effect that a common intention is not strictly necessary to establish the existence of a constructive trust (see Agnew at [12], citing Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 613-614; see Exhibit R1, p 11, para 5.10).
Mr Hulett drew my attention[25] to the decision of Deputy President Sosso in Thomas and Secretary, Department of Social Services,[26] which provides a comprehensive commentary on Agnew and another case, Imam All Islamic Centre v Imam Ali Islamic Centre Inc,[27] in relation to common intention constructive trusts, which I respectfully adopt:
[25] Transcript, p 9, lines 22-27.
[26] [2022] AATA 2324.
[27] [2018] VSC 413.
It is preferable to turn to the Full Federal Court decision of Secretary, Department of Social Security v Agnew [2000] FCA 59; (2000) 96 FCR 357 (Agnew). This case helpfully sets out the general principles of law concerning constructive trusts, and provides a helpful example of direct relevance to this matter.
…
In 1995, Mr and Mrs Agnew formally retired from the business partnership, sold the farm to the trustee of their sons’ family trust, and released the trustee from payment of the balance of the purchase price.
Mr and Mrs Agnew applied for the Age Pension, but their claim was rejected under the assets test on the ground that, in the preceding five years, they had disposed of an asset for inadequate consideration.
Drummond, Sundberg and Marshall JJ found the farm had been held on a constructive trust by Mr Agnew for his three sons, and the trust came into existence when the conduct that gave rise to its imposition occurred, which was when the sons acted in reliance of the statement that the land was theirs. Finally, their Honours held that no amount was to be included in their assets under s 1125A of the Act, since the asset they disposed of in 1995 was the bare legal title to the land which had no significant value.
Their Honours made the following observations (362 – 365):
“11. Had Mr Agnew on his return from Western Australia asserted that Rosedene was his beneficially, his claim would have been rejected and the sons’ claim to beneficial ownership upheld on the ground that the land was held by their father on a constructive trust for them. In reliance on the father’s statement that the land was theirs, they improved it, doubled its capacity, turned stony land into arable land, extended the house on Rosedene and otherwise acted in reliance on the father’s statement that the land was theirs. Directing ourselves in accordance with Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566 at 584-585; [1998] HCA 59; 157 ALR 414 at 425-426 and Giumelli at 113; 476 we consider that a remedy that falls short of the imposition of a trust would be inappropriate in the circumstances of the case. Factors such as those that led to more confined relief in Giumelli — a still pending partnership action, improvements to the land by family members other than the claimant, and the fact that another son who was not party to the proceeding lived on the land with his family — are not present in the instant case.
12. One of the reasons the Tribunal gave for rejecting the claim to a constructive trust was that the sons had established no detriment. It took from Hohol v Hohol [1981] VicRp 24; [1981] VR 221 what it called the three necessary elements for a constructive trust — a common intention as to the ownership of the beneficial interest, acts to the detriment of the party claiming the beneficial interest, and that it would be a fraud on the claimant for the legal owner to deny that interest. As the primary judge said, it is no longer necessary to show a common intention: see Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 613-614. However, for ease of identifying the type of constructive trust involved in the present case, we will use the description ‘common intention constructive trust’. There are many cases and commentaries in which, as in Hohol, it is said that the claimant must have acted to his detriment.
…
14. Whatever the differences between the two doctrines (as to which see, for example, Pawlowski, The Doctrine of Proprietary Estoppel (1996), pp 10-16), they share the aim of frustrating unconscionable conduct: Yaxley v Gotts [1999] EWCA Civ 3006; [1999] 3 WLR 1217 at 1227. Thus the notion of detriment common to both should have the same content. That is, one should not look for an act that can be seen to be to the claimant’s detriment when done, but for an act done by the claimant in reliance on the conduct of the legal owner in circumstances where detriment would be suffered if the owner were permitted to depart from the assumption that induced the reliance. As Dixon J said in Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at 674:
‘...it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it.’
Sir Owen Dixon’s understanding of detriment in the estoppel context has been adopted in some constructive trust cases. In Higgins v Wingfield [1987] VicRp 59; [1987] VR 689 at 695-696 McGarvie J, with whom Murray J agreed, having set out the passage from Grundt quoted above, said:
‘The required nature and quality of the acts capable of amounting to detriment and their relation to the common intention have not been settled. However, where acts constitute a sufficient detriment to raise a trust, there is no reason for regarding them as having a rationale different from that explained by Sir Owen Dixon in the passage quoted above as the rationale of acts of detriment which will found an estoppel. ...
... no case has been drawn to our attention where the marriage case principles have been regarded as giving rise to a trust without the claimant having done acts which would be acts detrimental to the claimant's interest if the claimed beneficial interest were denied.’
See also per Marks J at 700. The same view was taken in Thwaites v Ryan [1984] VicRp 7; [1984] VR 65 at 90-92. And see Ong, Trusts Law in Australia (1999), p 467. Accordingly we think that in the passage we have set out in par 8, the Tribunal erred in law in literally applying the second criterion in Hohol with a view to discovering whether the acts done by the sons were detrimental to them when done.
15. The primary judge was correct in his treatment of detriment, which is consistent with what we have said in [14]. His Honour said that if Mr Agnew had attempted to renege on his contract, his sons would have rightly complained that a refusal to transfer legal title to them ‘would have been a detriment because it would mean that they would not gain their rightful proprietary interest in the land’.
16. The other reason the Tribunal gave for refusing to impose a trust was that at the time Mr Agnew departed for Western Australia he did not intend to transfer the whole of the beneficial title in Rosedene to his sons ‘at this time’. In par 32 of its reasons the Tribunal said that it regarded Mr Agnew and Peter as honest witnesses, and accepted the ‘factual content’ of their evidence as true, with one exception. That would lead one to expect that the exception would be an aspect of their evidence that the Tribunal rejected. But that is not the case. Rather, the Tribunal accepts the evidence in par 40, namely that Mr Agnew, speaking of the land, told the sons ‘it's yours now’, which led Peter to understand that the land was theirs ‘then in 1980’. We agree with the primary judge that it was not open to the Tribunal, having accepted that evidence, to hold that this was not ‘the reality of the situation’.
17. In any event, the Tribunal immediately went on to make a further error of law, and in so doing indicated that it did not understand the nature of a trust. Thus it said in par 42 that when Mr Agnew told his sons the land was theirs, it was not his intention to divest himself of ‘all rights as legal and beneficial owner, ie to create a trust in favour of his sons’. If Mr Agnew had divested himself of his legal and beneficial interest (that is, by transferring the land), there would of course have been no trust in the sons’ favour. The Tribunal repeated the error when it went on to say that there were specific purposes behind the ‘preservation of legal title in Mr Agnew's name’. The retention of legal title was not in question, and to search for reasons why Mr Agnew retained it shows that the Tribunal regarded a positive decision to retain legal title (that is, not to transfer the land outright) as fatal to the existence of a trust. It is true that in par 42 the Tribunal was dealing with an express trust. However, in par 47, when dealing with a constructive trust, it repeated the ‘findings’ it had made in par 42. The erroneous understanding of trust law disclosed by the express trust discussion permeates the constructive trust discussion, because the earlier express trust ‘finding’ was used by the Tribunal to show that the first Hohol element was not present. That is to say, there was no common intention that the sons should be the beneficial owners of the land. Thus, in addition to the error of law identified by the primary judge, the Tribunal erred in law in its understanding of the duality of ownership inherent in a trust.”
The Tribunal’s attention was also drawn to the Victorian Supreme Court case of Imam All Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413. Her Honour, McMillan J, provided the following helpful summary of the law governing constructive trusts:
“396. The term constructive trust is used in various manners to identify a remedy provided by a court of equity. Some variations of constructive trusts create proprietary interests while some merely impose a personal liability. The chief motivation of the courts of equity in imposing a constructive trust over property is to ensure that, ‘when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee’.
397. The imposition of a constructive trust over property is a serious measure. A court will consider whether there is an appropriate equitable remedy that falls short of the imposition of a constructive trust. Although the catalyst for the imposition of a constructive trust may be unconscionability by a party in the assertion of a legal interest free of equitable encumbrance, the construction of such a remedy must be determined by reference to established equitable principles and not a vague notions of fairness or justice. In particular, mere unjust enrichment is not a sufficient basis for the award of a constructive trust.
398. There are a variety of recognised categories of constructive trusts. These categories are not closed. The principles governing some of the key categories of constructive trusts for the purposes of the current case are explained as follows.
…
Common intention constructive trust
402. The second class of constructive trust is a common intention constructive trust, .... The court will construe a common intention constructive trust where:
‘(a) there is an actual or inferred common intention of the parties as to their beneficial interest in a property;
(b) there has been detrimental reliance on that common intention by the claimant; and
(c) it would be an equitable fraud on the claimant to deny his or her interest in the property.’
The onus of proving such a trust lies on the party asserting the beneficial interest against the legal owner.
403. The parties’ intentions can be found or inferred from the party’s contemporaneous words and conduct, also having regard to the surrounding circumstances and context in which they were uttered or performed. The relevant intention may arise after the property has been acquired. The intention to be established need not designate a specific share of the property; it is sufficient that the claimant should have a beneficial interest.
404. The cases considering this form of constructive trust have commonly concerned persons in a domestic relationship, but the principle can be applied to disputes between parties to a commercial relationship.
405. A common intention constructive trust creates substantive rights and is not merely a remedy that arises when a court makes a declaration to that effect. The trust will generally take effect from the moment at which the conduct giving rise to its imposition occurs. The interest created may, however, be deferred in accordance with principles governing priority between competing equitable interests.
There is considerable doctrinal debate on how a common intention constructive trust should be appropriately characterised. Some say it is more appropriately characterised as an express trust because it is based upon the parties’ intentions. Others say it is more accurately characterised as an aspect of equitable estoppel. The classification of this form of trust as a constructive trust admittedly does not sit comfortably with the observation of Deane J in Muschinski v Dodds that constructive trusts differ from other forms of trust in that they arise regardless of intention. It has nonetheless been observed that ‘[t]here is ample authority that a constructive trust may be based on the common intention of the parties’. Despite the evident taxonomical confusion, it appears from the authorities that a common intention constructive trust has a role to play distinct, albeit not always mutually exclusive, from a joint endeavour constructive trust and a constructive trust arising from equitable estoppel. The common intention constructive trust will enter centre stage where the formalities for a contract or express written trust are not satisfied, and the other paths are either not pleaded or are not satisfied.”[28]
[28] Para [59]-[66] (emphasis added).

The Guide at paragraph 4.12.3.51 encapsulates the principles in Agnew and provides that a constructive trust will exist if the following elements are present:
(a)that there must have been a common intention between the legal owner of the property and the beneficiary, regarding the beneficiary's beneficial ownership of the property;
(b)this common intention is to be inferred as a fact from the words or conduct of the parties;
(c)the beneficiary must be able to show that they have acted to their detriment on the basis of the common intention as to the beneficial ownership of the property; and
(d)it must be a fraud on the beneficiary for the legal owner to assert that the beneficiary did not have the beneficial interest in the property.[29]
[29] Exhibit R1, p 11, para 5.9.
In approaching whether the forgoing elements exist, the Secretary directed me to Senior Member Toohey’s decision in Slamkova and Secretary, Department of Social Services[30] about certain matters to be kept in mind in considering the question of whether a trust exists: [31]
... there must be something of real substance to support a claim that a property of which a person is the registered owner of 100 per cent, is in fact held on trust for another.
[30] [2017] AATA 137.
[31] Exhibit R1, p 11, para 5.11.
The Secretary says that, to similar effect, the comments of Senior Member Taylor in Sternberg and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[32] should be considered: [33]
The importance of evidence of obligation, and particularly obligation attaching to the property itself, is exemplified by decisions involving “precatory” trusts. These arise where the property transfer is accompanied by expressions of confidence, belief, expectation or discretion, in relation to benefits being conferred on third parties. The critical matter to decide is whether those expressions or expectations indicate the imposition of an enforceable obligation, or whether they are confined to mere expectation or moral obligation: see Jacobs Law of Trusts in Australia 7th ed at [503]. For example, in Dean v Cole (1921) 30 CLR 1 the High Court held that no trust was created by a testamentary gift to a wife “trusting to her that she will at some time during her lifetime or at her death” divide the property equally between her children. Similarly a gift made “in the fullest trust and confidence” that the donee would confer a benefit on her daughter was held not to constitute a trust: Re Williams [1897] 2 Ch 12 at 27. Where the circumstances of the gift occur in the context of family relationship and appear to rely on mere expectations of moral or familial obligation and generosity, particular care is exercised before accepting that those expectations give rise to enforceable obligations in relation to the property: Re Follone and Secretary, Department of Social Security (1987) 11 ALD 477 at 481. No trust will arise from equivocal expressions of intended familial generosity in the absence of explicit conduct indicative of actual obligation. Even an avowed intention to confer a benefit on another person in relation to the property is not sufficient to give rise to a present trust: Dineen v Secretary, Department of Social Security (1988) 17 ALD 91. This is so unless the stated intention either evidences the creation of an subsisting actual obligation: Olsson v Dyson (1968)120CLR365 at 375; Secretary, Department of Social Security v James [1990] FCA 150; (1990)95ALR615; or it induces reliance that requires the intention to be fulfilled: Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137; Re Holden and Secretary, Department of Social Security [1995]AATA77; (1995) 37 ALD 783.
[32] [2008] AATA 787 (at [82]).
[33] Exhibit R1, p 12, para 5.12.
I accept the Secretary’s submissions about (1) the matters to be kept in mind in assessing whether a constructive trust exists; and (2) the necessary level of prudence to be exercised in reviewing family arrangements. In other words, where one is considering whether a constructive trust is established in the context of a family relationship, one must tread very cautiously.
What the witness evidence says
I had the benefit of receiving written evidence from Mr Hulett, as well as his three daughters, Ms Edwards, Ms Baker, and Ms Gosson. All four persons also provided evidence in person at the Tribunal. As such, I was able to observe the witnesses, especially during cross-examination by the Secretary’s solicitor.
Mr Hulett presented as an elderly, frail and quite vulnerable gentleman. Respectfully, he displayed a lack of sophistication about legal matters, and was a bit confused about the technical legal implications of certain terms. These matters do not, however, detract from the credibility or force of his evidence. I formed a positive view of his and his daughters’ honesty and candour. There were some inconsistencies in their evidence, but I suspect that these may be put down to the passage of time and an unfamiliarity with legal concepts. The thrust of their evidence was generally straightforward, and it appeared to me that they attempted to answer the questions posed by the Secretary’s solicitor to the best of their knowledge and recollection.
Mr Mick Hulett
Witness statement & evidence in chief
Mr Hulett provided a comprehensive witness statement that offered a snapshot of his difficult childhood (including living in an orphanage), challenging early life experiences, working history and family life. Mr Hulett described his marriage to Mrs Hulett as an equal partnership:[34]
44. From the day we got married up to the day she died everything was 50 percent down the tubes with the two of us.
45. All our accounts and loans and assets were in both names. I didn’t get fish n chips unless she got half.
46. It had to be done that way, if you don’t do things 50/50 with your spouse you don’t go anywhere.
47. We had paid off houses and cars by doing things together and to be truthful we even raced greyhounds together.
…
50. When we died and the other couldn’t look after herself and the 3 acres, well the house was going.[35]
[34] Exhibit A1, p 2.
[35] Exhibit A5, p 5.
In relation to estate planning, Mr Hulett describes the process and approach he and Mrs Hulett adopted as follows:
53. It became clearer that our daughters were not all getting along. Each of them were married with their own families.
54. Margaret and I sat down and decided to get wills sorted.
55. We were concerned how the kids were going to get along if either of us should die.
56. We were busting our bellies to get the house paid off but we still had debt.
57.The kids were not going to be able to get loans for themselves because they are all spendthrifts.
58. We thought, well, see what happens, the house is not going to be worth much they will get about $60 000 each.
59. We started thinking about how we could get the money to them.
60. Margaret said 'look I've got me rings, and a necklace and a watch', ask the kids what they want.
61.We mumbled around a lot between us and Margaret said if we can get more for the house, we should wait until both of us die or if either of us can't manage anymore then if we can't manage any mor even if we are still alive together we will get a small place and split the money up for the kids.
62. If there is only one of us, she suggested we could go and live with the kids.
63.'That's not a bad idea,' I said.
64. We agreed that when the house was sold if the kids needed education or hospitalisation they would be given it but the money out of her share of the sale of the house has to go to the kids to buy a house for themselves if they don't already own one.
65. We went to Center/ink, Beenleigh together after this discussion. I can recall this particular visit. I remember standing in line waiting to be served. We were moving up and Gary, who worked at Centrelink and knew us, looked over and spotted us. He said 'Hey Mick, come over', when I got there he said 'what are you doing here, trying to get aloan?, 'Five hundred should do me!', I said 'that will do us'.
66. Gary asked how we were travelling and I said we were getting there, we started talking about our house. Gary knew me well. I told him the plan, that when our house was sold, the kids would get the money and we would keep a bit for ourselves.[36]
[36] Exhibit A3, p 3.
Mr Hulett says he and Mrs Hulett communicated their plan to their daughters:
69. After [visiting centrelink], when the girls visited, Margaret said 'this is the plan, this is what we want, but Barbara gets the rings'. Carol said' I like the watch I’ll have that, so that leaves the necklace for Brenda.
70. Margaret told each daughter what was going to be. She explained, 'that this is my stuff and this is how I want it to be done'. I said 'you are not only going to get that (meaning the jewellery), but if we can', I said,' you are going to get money out of the house as well', and they were happy about it.[37]
[37] Exhibit A3, p 7.
The nature and extent of Mr and Mrs Hulett’s discussions with, and common understanding among, his family, that the surviving spouse would have a home with their daughters after any home sale, was explored in Mr Hulett’s evidence in chief:
[In discussions about the agreement] Everybody had their two bobs worth. The house was to be sold, I could live in it until I couldn’t anymore (or Margaret), then when it was sold it would be split up and Margaret’s share would go to the girls and if more than that at my discretion. Margaret was always in amongst everything. We discussed with the girls that we would live with one of them. The three of them all agreed that they would take us in if we needed, or one of us if one of us had died and we were too old to keep living by ourselves.[38]
[38] Exhibit A3, p 3, paras 3; Transcript, p 14, lines 30-45; p 15, lines 102.
MR COLDITZ: When Margaret was alive, do you remember having a discussion with her and your children about the family home?
MR HULETT: Yes, many times.
MR COLDITZ: And what was discussed?
MR HULETT: Well, we discussed it how the children would get something that we never had in the beginning and the house, when it was sold, had to go to their inheritance but to split up for them in their inheritance so they could buy themselves a house when either me or whichever one of us come first because we made two wills and they read – both read identical, so I don’t know if I brought them or not – I hope I did. And it all says that once they did it – if they don’t own a house – that we’d appreciate if they would buy one, you know, buy one for themselves and you know, that would be very helpful for them. In fact Margaret always wanted that because – well both of us come out of a poor family and we’ve had to belt out – you know, work our way up and pay and everything else and that was the only reason it was or – inheritance for them.
MR COLDITZ: Were there any other parts of the agreement?
…
MR HULETT: Yes, well I know that we had to – Margaret’s share had to go to the kids…
…
MR COLDITZ: And in the discussions that you had with Margaret, were your daughters present?
MR HULETT: Sometimes, yes.
MR COLDITZ: And were your daughters going to do anything in exchange or in relation to what had been agreed?
MR HULETT: Yes, so they were going to put us up for the rest of our life, you know when – when they bought a house, you know, for themselves they were going to take us in...
MR COLDITZ: Was there discussion about that situation where one of you or Margaret would die and the other would continue living in the family home?
MR HULETT: Yes, we could live in the family home until we couldn’t live there any more due to illness or death.
MR COLDITZ: So what was agreed with you and Margaret and the children about what would happen in the circumstances where you can no longer live independently…?
MR HULETT: Well, when I had to sell…So they – so when they told me that I couldn’t live in the house any more due to the illness, that’s the thing that we discussed quite well and Margaret was to do the same if she was told she couldn’t live in the house due to illness or death – whichever one – we had to sell and distribute to the kids for their – you know, for the inheritance… Yes, so that had to go into inheritance. [39]
[39] Transcript, p 15, line 4-26, 38-44; p 16, lines 3-6, 14-16, 22-29.
Mr Hulett says that upon Mrs Hulett falling ill, there was no further discussion about the future arrangements:
83. Margaret went to the Logan hospital because she couldn't breathe in late 2009. She passed on while in hospital. I had thought I would be taking her home. I said to one of the nurses, 'she is not that bad, she wants to go home' and was told it's too late for that.
84. We didn't talk about what was to happen at that point as our plans had all been decided and were all in concrete.[40]
[40] Exhibit A3, p 7.
Mr Hulett says that after his own health started to fail, he brought his family together to determine which of his daughters he would live with:
96. During that time, I had a heart attack. I was transferred to the PA where a surgeon debrided my leg.
97. I had a hole in my leg and was told by the doctors that I needed to live with someone else. The options were to live with a relative or a friend or go to live in a nursing home.
98. I was dragging the chain, couldn't keep up with everything and hence the sale of the home and hence.the fact that the kids are entitled to their money.
99. After I was discharged, I went to stay with Barbara and I was getting home visits from health staff.
100. I made up my mind that I needed to have a discussion with all three daughters at the same time.
101. I was already at [Barbara’s] and Carol and Brenda came over.
102. I told them what the hospital doctors had said, that I had three options as to where I would now live. I wasn't going to be able to live on my own.
103. I let the girls take it up. The girls said I would have to pick one of them.
104. I said to them well, 'carol, you've got more people coming and going, its like central station (at her house) and Brenda, your house is too small for an extra one like me'.
105. That left Barbara. I was already staying with her. Everyone was settled that I would be staying on with her.
106. I have been living with…Barbie ever since then.[41]
[41] Exhibit A3, p 8-9.
In relation to selling the home, Mr Hulett says that after settlement, he effectuated what had been agreed with his wife:
110. I honoured my wife's wishes. I set out share the nett proceeds of the sale to each of my daughters.[42]
[42] Exhibit A3, p 9.
Again in evidence in chief, Mr Hulett elaborated on the nature and scope of the distribution of net home sale proceeds:
MR COLDITZ: The agreement – what has happened recently which you have described to the tribunal. Did that happen because of what had been talked about when Margaret was alive, with you daughters?
MR HULETT: Yes, we – we talked about all that sort of stuff – the whole lot – true. And you know, I’d come up with a crazy idea and she’d come up with another one, but it took us a long time to work out what we could do and what we couldn’t do and the kids were there, you know, getting their inheritance
MR COLDITZ: And that was something that you had agreed when Margaret was alive, wasn’t it?   As in what’s happened in relation to the payments was something that you spoke about when Margaret was alive?
MR HULETT: That the kids were to get their house money.
MR COLDITZ: That’s right?
MR HULETT: Yes, they were to get their house money and as I said, there’s [their] money.
…
MR COLDITZ: And if I could just finally clarify, when you said the kids were to get the house money, could you tell the tribunal more about what you meant by that?   They’d get their house money?
MR HULETT: That’s right, … When the house was sold they were to get their inheritance. Now, I don’t know what everybody else wants to call it but that’s what we discussed, the word ‘inheritance’ and I know I am still alive, but Margaret is the deceased one.[43]
Cross-examination
[43] Transcript, p 17, lines 32-38, 46-47; p 18, lines 1-5, 12-19.
The Secretary’s solicitor initially focused on Mr Hulett’s repeated use of the word “inheritance” and how Mr Hulett understood by the same, particularly in the context of Mrs Hulett’s will:
MR McLAREN: …do you see the money that you gave your daughters to, in effect, be giving them their inheritance while you are still alive?
MR HULETT: No…[Mrs Hulett] had a will and we made the will before, you know, and that was the thing was wanted them to have. It says on the bottom of the will. … With my part of the money that should be split down the middle bit, right? That she should – want the kids to buy themselves a house with it – if they don’t already own one.[44]
[44] Transcript, p 19, lines 40-43; p 20, lines 1-5.
The Secretary’s solicitor put to Mr Hulett that his recollection/understanding of what happened was wrong and that Mrs Hulett’s will in fact provided for Mr Hulett to inherit her share of the home:
MR McLAREN: …you understand, don’t you, that what actually happened was you received the entirety of your wife’s property excepting for the three pieces of jewellery and watches?
MR HULETT: Stop there. Stop there.
…
MR McLAREN: Okay, and do you understand then that your will provided – that Margaret’s will provided that everything else was yours. Well, that’s what it says?
MR HULETT: That’s not – that’s not how we said it.
MR McLAREN: I might take the tribunal to the will.
…
MR McLAREN: … the crux is the following page, page 2 of the will.
MR McLAREN: …And then it says that;
The residue of my estate to my husband, Edward Michael Ronald Hulett.
MR McLAREN Now, you appreciate that – or do you understand…that what that means is that but for the three pieces of jewellery that are referred to, everything else was yours, do you understand that?
MR HULETT: No, not really, but I think you’re wrong.[45]
[45] Transcript, p 20, lines 7-9, 17-21; p 21, lines 10-11, 16-26.
It was put to Mr Hulett that his evidence about Mrs Hulett’s will was incorrect:
MR McLAREN: I am just looking at literally what is written in black and white and signed by Margaret?
MR HULETT: Everybody looks at everything else but the bottom one. The bottom line states that ‘The money – her share of the money, when the house was sold, has to go to kids or their – to buy a house if they don’t already own one and that is the part where everybody is jumping – jumping in defence of.
MR McLAREN: No, but Mr Hulett, it doesn’t say that. It expressly states, ‘I express a wish without recreating any binding trust or legal obligation that my daughters used their share of my estate to purchase a home for themselves if they presently do not own a home.’ Mr Hulett, if what you are saying is accurate, wouldn’t you have been required to provide the money – Margaret’s share of the property – to your daughters immediately upon Margaret’s passing?
MR HULETT: Yes.
MR McLAREN: Why didn’t you do so?
MR HULETT: …I didn’t sell the house. I was to live in it until such time as I either died or couldn’t do it anymore.[46]
[46] Transcript, p 21, lines 28-44.
In re-examination, Mr Hulett clarified that his answers about his daughters being given his wife’s half share of the property were references to the agreement when she was alive (not her will):
MR HULETT: I couldn’t think of that word.
…
MR COLDITZ: When you said, ‘My daughters were given my wife’s half share of the property’ that was because of the agreement you had with your wife and your daughters when your wife was alive?
MR HULETT: Yes.
MR COLDITZ: And not because of the will?
MR HULETT: No. It had nothing to do with [will]…but the agreement was the thing that we had and as I – one question that the chap said about, you know, that I didn’t agree with, is one of them, because I mucked myself up because I lose words. Didn’t – whoosh – it’s gone – five minutes later it comes back. I also have something wrong in my brain, a mal – or some – something or other.
MR COLDITZ: When you said, ‘My daughters were given my wife’s half share of the property’ you were referring to the agreement when she was alive?
MR HULETT: That was an agreement that we had, yes. I couldn’t think of that word.
…
Mr HULETT: Sorry about if I’ve mucked you up [47]
[47] Transcript, p 26, line 33; p 27, lines 1-8, p 28, line 3.

Mr Hulett denied that he and Mrs Hulett had ever considered or had an intention to sell their home while both were still alive and to distribute the home sale proceeds to their daughters:
MR McLAREN: [was] the intention between yourself and Margaret …whenever the home was sold you would give the proceeds to your daughters, whether or not either or both of you were alive at that point?
MR HULETT: No, that’s not how it – you see, look, we – we chucked so much stuff around about what we could do and what we couldn’t do, right, and how – how we could, you know, try and help them to get – you know, get on their feet, right.
MR HULETT: …Now, what this means here is we can live in a place until we – sickness or death…
MR HULETT: … Then the place got sold, then the kids got their inheritance out of it, right? Now, if we were to have it only when we did I’d be answering it that way – but I’m not – I’m answering it the way that it’s meant to be.[48]
[48] Transcript, p 22, lines 41-46, p 23, lines 1-7.
It was put to Mr Hulett that one of his daughters would have taken him in even if there was no promise to give them the money from the home sale. It was also put to him that his being taken in was never contingent on him giving his daughters money before he died. His response to these propositions were quite nuanced:
MR HULETT: Well, actually yes, because the rents, as you know, like the houses, have gone up tenfold and therefore you wouldn’t be able to put me in a house and cover my expenses on the same – on the same situation, if you had to own – you had to own.
MEMBER: Mr Hulett, are you saying that you believe that your daughters would have taken you in even if there was no agreement in place for you to distribute…?
MR HULETT: Yes, I think so, yes. You know, a matter of fact I’m pretty sure but at the same token it’s not just if they would’ve – when they would’ve but it’s the fact that they knew that they were getting this money from the sale of the house. They knew it was coming because we told them.
MR HULETT: Well, if – if they wouldn’t have got it I don’t think I’d have lasted long because it would’ve been too much expense, you know, the – the rents alone going up. I wouldn’t have been able to afford to pay them anything.[49]
[49] Transcript, p 25, lines 23-46; p 26, lines 1-9.
Ms Barbara Joyce Gosson
Witness statement & evidence in chief
Ms Gosson says that Mr and Mrs Hulett had always impressed upon her the value in purchasing a home:
4. I have always grown up with my parents talking about the importance of buying a house.
5. My first clear memory about this was when I was going out with my first boyfriend when I was 17 and living at home. My Mum and Dad said to me 'you should buy house'. l don't recall thinking about home purchasing before that given I was focused on school and on my friends. The issue of home ownership was not on my mind.
9. lt was clear from the way they spoke and comments they made that it was very important to my parents that their three daughters should own their own home.[50]
[50] Exhibit A4, p 1.
Ms Gosson says that she has a clear recollection of the Agreement:
10. Much later, before my Mum was sick, I remember sitting at their kitchen table when they explained that they had sorted out their wills.
14. Mum also said that if one of them was to pass away the person surviving would live in the house but when they got to the point where they had to sell the house because of illness age or whatever else the money would be split between us three girls.
16. Mum explained that the idea was for the other two, my sisters, to buy a house with the money and hopefully my share would help pay out my mortgage.
17. After that my parents made passing comments about what was to happen when they aged and sold their home according to what they had announced earlier to me, but neither of them were at that point facing death.
18. My view from then on was that it was always clear that one of us was going to have to look after the parent that survived and that each of their daughters would get an equal share when the house was sold.[51]
[51] Exhibit A4, p 2.
Ms Gosson’s evidence in chief about the Agreement was of a similar compass:
MS GOSSON: …So they said that they had an agreement that if they were to pass away…together, the house was to be sold and divided amongst us three girls. If, for instance, someone was to pass away…, the surviving person would live in that house until – they would live in the house until they could no longer live there by themselves and then they agreed that the house would be equally sold and equally shared amongst us three girls.
MR COLDITZ: And what else?
MS GOSSON: Gee, it was such a long time ago, but I do remember the house. I do remember the – I do remember getting the ring, I do remember that but yes, the agreement was to basically sell the house if – but the person that was living was to live in the house until they could no longer live there.
MR COLDITZ: What about when the person could no longer live there?
MS GOSSON: Yes, when the person could no longer live there they were to – well, it was never really decided which person they would live with out of us three girls. That was never actually decided at the time but when they sold the house – the surviving person sold the house, that they would divide the property between us three.
MR COLDITZ: And you mentioned the surviving person living with one of the three girls?
MS GOSSON: Yes.[52]
MR COLDITZ: Was the agreement that you spoke about at the beginning of your evidence in relation to the earlier conversation that you had with your mum and dad about what would happen when one of them could no longer live independently?
MS GOSSON: Yes. I mean, the agreement was that yes, we would look after the other surviving person. I mean, at the time you don’t really thing that your parents are ever going to pass away, you think they’re indestructible, but yes, so the agreement was to look after them and that’s exactly what I’ve done. I mean I – he has given, you know – well, my parents – with the agreement – have given us the money. If you can look at the time when I was given the money to when I bought a house, that was a very short period. I stuck to the agreement, I did what I was told. I was – it was installed in me, it was drummed in me, ‘Buy the house – buy property’ and that’s exactly what I’ve done. I’ve stuck to the agreement. I’ve stuck to the agreement…[53]
[52] Transcript, p 31, lines 3-24.
[53] Transcript, p 33, lines 22-35.
After Mrs Hulett’s death, and while Mr Hulett continued to live in the home, Ms Gosson says he reminded his daughters of the Agreement terms:
20.When Mum died, Dad stayed on living on his own at the house at …, Buccan.
21. He said that when he got to the point where he could not live by himself anymore it was both Mum and Dad's plans to sell the house and divide the money between us three.
23. He would make passing comments consistent with my parent's intentions about sharing the sale proceeds once he moved out of the home.
25. My understanding was that all of the sale proceeds would be split between the three of us if Dad decided to sell the home.
26. Dad would mention that each of us would get an equal share of the sale proceeds of the house but despite us asking, he would not tell us which of us he would want to live with.[54]
[54] Exhibit A4, p 2.
At the point that Mr Hulett could no longer live in the home independently, Ms Gosson says that he told her and her sisters that he would proceed to sell the home in line with the Agreement:
31. He said then that he was going to sell the house. We all lived not too far away. He then said that he wanted to respect mum's wishes and he wanted to sell the house and divide the money between the three of us so that we could all get a property.[55]
[55] Exhibit A4, p 3.
Ms Gosson says, pursuant to the Agreement, she took Mr Hulett in and he now lives with her:
MR COLDITZ: Now, if I could ask you about what has happened since the agreement was reached, could you explain to the tribunal what has happened recently? For instance who Mick lives with at the moment and things like that?
MS GOSSON: He does live with me. What happened was he went to hospital, he fell through his veranda… So where we’re living now I did buy – I did purchase property. When I was looking to buy a house I actually took my dad with me when I was searching for properties… I’m in now, it’s a one storey house, he has his own room and, you know, he seems to enjoy it and like it but I have recently just had rails installed on the toilet. I’ve also had to have a new shower sort of – the head, I guess, the shower placed in there. He’s also had to have – or we’re waiting on the shower chair to come. I mean, as you can tell, he’s getting a little bit more frailer now so in the way as he’s using his walker a lot more, so I have to now organise some sort of rails, like ramps and stuff for him to get in and out of the house, so there is a lot that I am doing now, with him living with me, to make sure that he is as comfortable as he can be.
MR COLDITZ: And these things have happened because of the agreement that was reached when Margaret was alive?
MS GOSSON: Yes…[56]
Cross-examination
[56] Transcript, p 31, lines 41-45; p 32, lines 32-34, 39-46; p 33, lines 1-5.
The Secretary’s Solicitor focused on Ms Gosson’s recollection of how the home sale proceeds would be distributed to her and her siblings:
MR McLAREN: What was your understanding that effectively, upon the sale all of the [home] proceeds would be given to you?
MS GOSSON: No, I – due to the conversation I had when my mum was alive and we had the agreement to split the proceeds, on me personally, in my mind, I guess I never thought he would give the whole lot because that would, you know, he still has to buy petrol and you know, there’s still things you have to pay and things like that so I never thought that he was just going to give the whole lot away but I knew that there was an amount that was going to be coming my way.[57]
[57] Transcript, p 35, lines 36-44.
In relation to post home sale living arrangements, Ms Gosson conceded that it fell to her to take her father in because it was impractical for her other sisters to do so:
MR McLAREN: You dad, I think said, effectively that there were reasons that he couldn’t live with either of your sisters, one had too small a house, one had too many people there, so it sort of fell to you ultimately as the last cab off the rank?
MS GOSSON: Yes. Yes.[58]
[58] Transcript, p 36, lines 6-9.
Ms Gosson accepted the proposition that, notwithstanding the Agreement, she would still have taken Mr Hulett in:
MR McLAREN: If your father hadn’t have given you the money would you have still taken him in?
MS GOSSON: Yes.
MR McLAREN: You would?
MS GOSSON: That was the agreement that was – like was asked by Mum and yes, I would have.
MR McLAREN: So your caring for your father was never contingent on you receiving the money?
MS GOSSON: No.[59]
[59] Transcript, p 36, lines 15-25.
In re-examination, Ms Gosson further addressed the foregoing contingency point in the following terms:
MR COLDITZ: …when you agreed that your caring for your dad was not contingent upon receiving the payment, it was nevertheless part of the agreement that you would receive the payment, wasn’t it?
MS GOSSON: Yes…[60]
[60] Transcript, p 36, lines 40-42.
Finally, it was put to Ms Gosson that, as a matter of fact, after receiving the payment, she did look after her father:
MR COLDITZ: And having received the payment you are looking after your father?
MS GOSSON: And I am looking after my father. So whether I had the money or I didn’t have the money I was still always going to look after my father. But I received the money and, like I said, due to the agreement that was made all those years ago and that was installed in me, I went and bought a property.[61]
[61] Transcript, p 37, lines 1-6.
Ms Brenda Lee Baker
Witness statement & evidence in chief
Ms Baker says that Mr and Mrs Hulett had wanted their children to buy their own home:
3. I understood that they wanted to make sure we were able to buy our own place or something similar to that such as house or land.
16. I can recall that while Mum was alive Dad would say to me that he wanted me to buy a house. He wanted us (Colin and I) to have something for our children.[62]
[62] Exhibit A5, p 1 & 2.
Ms Baker’s recollection of the Agreement was expressed thus:
13. …they told me that if it came to the point where they had to sell the house, whoever was left and couldn't look after the property would sell it. The money from the sale after their home was sold would be split between us, the three daughters.[63]
[63] Exhibit A4, p 2.
Ms Baker confirmed that she recalled discussing the Agreement with her parents and her siblings, when Mrs Hulett was alive, specifically what would happen to the home,[64] and that the surviving parent would live with one of the daughters.[65]
[64] Transcript, p 38, lines 39-41, p 39, lines 1-6.
[65] Transcript, p 39, lines 2-3.
After the home sale, Ms Baker says that Mr Hulett gave her her share of the home sale proceeds:
21. He sold his house and he told me that the money would be divided between the three of us girls.
22.Dad gave me my share of the money...
23. I have bought a 30 acre block at Tara…[66]
[66] Exhibit A4, p 2.
Ms Baker indicated that she and her other siblings all offered Mr Hulett to move in with them. However, Mr Hulett chose to live with Ms Gosson.
Cross-examination
Under cross-examination, Ms Baker said:
·She had provided a caring role to Mr Hulett by taking him to hospital appointments[67] etc. but he had never lived with her;[68]
·She remained open to looking after Mr Hulett and having him living with her in the future;[69] and
·She accepted that she would have looked after and taken in Mr Hulett if he had no money and was not able to distribute money to her.[70]
[67] Transcript, p 39, lines 27-29.
[68] Transcript, p 39, lines 31-33.
[69] Transcript, p 39, lines 35-38.
[70] Transcript, p 39, lines 44-47; p 40, lines 4-5.
Ms Carol Ann Edwards
Witness statement & evidence in chief
Ms Edwards says that Mr and Mrs Hulett had wanted their children to buy their own homes:
20. I knew my parents battled and always tried to improve. They always gave us a sense that they wanted to buy a home and have that security. All of us knew they valued that.
36.The main thing was that the money we received was for us to get a house.
37. Even in conversations before that time there was a push that you've got to get your own house. That was because they had not been able to get ahead and have their own house for a long time. It was part of that whole picture.[71]
[71] Exhibit A6, p 2, 3.
Ms Edward’s evidence was that she remembers being called to Mr and Mrs Hulett’s house and having a conversation with them and her siblings about the Agreement:
MS EDWARDS:…Dad talking first and I remember them saying that, you know, if they died that of course the house, you know, would get divided between the three of us and – but if, you know, one person died and then if they would, you know, basically, you know, that if they – if they were the only living person, if they could no longer live in the home then, you know, then it would be divided from there, that that was part of the agreement, so, yes. That was – yes.
…
MS EDWARDS:… if Dad wasn’t able to live by himself any more or Mum wasn’t able to live by herself any more that then the home would be divided between the three of us, so the sale of the home.[72]
MR COLDITZ: At that planned meeting were any agreements reached?
MS EDWARDS: Well, it was agreed between Mum and Dad that if they both died, that the house would be sold and then divided up between the three of us and then if one remaining person, you know, was left behind and then they couldn’t live in the house any more that yes, it would be sold and that that would be divided between the three of us, so yes, that was the agreement that was discussed at the table when asked to come over after, you know, they had done their wills and their business.
MR COLDITZ: And when that agreement was made did you assume that the house could be sold and the funds from the sale of the house paid to the children because whoever was the last parent still alive would stay with you and our siblings?
MS EDWARDS: Yes, yes.
MR COLDITZ: But you understood – you reached the agreement on the basis that you or one of your siblings would look after the surviving parent?
MS EDWARDS: Yes, yes, definitely, yes, definitely, yes.[73]
Cross-examination
[72] Transcript, p 42, lines 2-8, 11-13.
[73] Transcript, p 43, lines 18-29, 41-43.
Under cross-examination, Ms Baker accepted that she would have looked after and taken Mr Hulett even if he had no money and was not able to distribute money to her.[74]
[74] Transcript, p 45, line 45; p 46, line 6.
Summary
In my view, there are several central and relevant threads to the witness evidence.
The first point is that each of the witnesses spoke of Mr and Mrs Hulett’s desire that each of their daughters purchase their own house, because both parents wanted for their daughters the stability and security implicit in homeownership. This appears to be a function of Mr and Mrs Hulett’s challenging life and financial history.
The second point is that each of the witnesses spoke of their being in family discussions and clear communications between Mr and Mrs Hulett and their daughters (while Mrs Hulett was alive) about future arrangements in the event that one or both passed away.
The third point is that there appears to have been a common understanding between Mr and Mrs Hulett and their daughters about the scope of the foregoing future arrangements - with certain enough terms. I say this because each of the witnesses was able to articulate (1) that there was a common understanding; and (2) what its terms were - if one spouse died before the other, that deceased spouse’s interest in the home would eventually be applied to the benefit of the daughters in equal shares. It was understood that upon the surviving spouse being unable to live independently in the family home, the surviving spouse would be provided with suitable accommodation and in-family aged care.
The fourth point is that all of the witnesses indicated that, after Mrs Hulett passed away, Mr Hulett lived alone in the home until ill health made it impossible for him to continue to do so. After this, Mr Hulett discussed with his daughters which of them would take him in and provide the agreed in-family aged care. It was apparent that all three were willing to do so, however, Mr Hulett (for his own reasons) chose Ms Gosson.
The fifth point is that each of the witnesses effectively agreed that, following Mr Hulett receiving in-family aged care with Ms Gosson, Mr Hulett sold the home and, from the net sale proceeds, distributed Mrs Hulett’s share, together with a top-up gift, equally between the three daughters.
The sixth point is that while it is the case that only Ms Gosson has provided in-home aged care to Mr Hulett, there remains a willingness on the part of Ms Baker and Ms Edwards to provide agreed in-home aged care to Mr Hulett.
The seventh point is that Mr Hulett repeatedly referred to the terms of Mrs Hulett’s will and the notion of his daughters’ “inheritance” from the home sale, as being the basis for the distributions to his daughters. It appears that, as addressed in Mr Hulett’s re-examination, such references were erroneous. Mr Hulett clarified that he meant to refer to the Agreement.
The eighth point is that Mr Hulett’s daughters accepted that they would have looked after and taken in Mr Hulett if he had no money and was not able to distribute the home sale proceeds to them.
Parties’ contentions
Secretary
At its heart, the Secretary’s position is that this case should be approached and understood as being purely a gifting case[75] in that Mr Hulett gave an early inheritance to his daughters[76] while he was alive. The Secretary contends that, properly characterised, Mr and Mrs Hulett and their daughters had, at best:
…an informal family arrangement that ‘If ultimately one of us passes before the other, one of us is to continue living in the property for as long as we can and someone is going to have to care for me after the fact.’ That is an understandable common style of family arrangement that may exist.
The evidence that has been given by each of the witnesses today was to the effect that ultimately the care that would be provided to the applicant – and, of course, it ought to be kept in mind that only one of the daughters is providing that care, the care that would be provided to the applicant would have been provided regardless of whether or not they were to receive money from him prior to his passing. What would have been their inheritance upon his passing they have said that, effectively, that was inconsequential to their understandable love and affection and caring responsibilities for their ageing father.[77]
[75] Transcript, p 52, lines 15-16.
[76] Exhibit R1, p 15, para 5.25.
[77] Transcript, p 53, lines 4-18.

On the Secretary’s submission, the Tribunal cannot be satisfied, on the evidence before it, that a constructive trust existed. In particular, the Secretary says that:
·the circumstances outlined by Mr Hulett and his daughters should not be accepted to be sufficient to establish that there was a common intention at law in relation to the distribution of the home sale proceeds;[78]
·there was no obligation (at law) that required Mr Hulett to distribute at least part of the home sale proceeds to his daughters;[79]
·the question that is of most significance is whether Mr Hulett’s daughters (as beneficiaries) have acted to their detriment[80] on the basis of the common intention as to the beneficial ownership of the home, and that it would be a fraud on the beneficiary for Mr Hulett (as the legal owner) to assert that the beneficiaries did not have the beneficial interest in the home – on this question, the Secretary says that no act was done by Mr Hulett’s daughters (as beneficiaries) in reliance on Mr Hulett’s conduct;[81]
·notwithstanding the foregoing point, the Secretary says that the only possible 'detriment' that would have been occasioned to Mr Hulett’s daughters should they have not been provided a share of the money received following the home sale, was non-receipt of the money to which they were not entitled from the Applicant at the time of the sale;[82]
·the purpose of a constructive trust is to preserve a beneficiary's interests if they would suffer through some act of unconscionability on the part of the legal owner. Here, no such unconscionable act or fraud on Mr Hulett’s daughters is alleged, nor would such an unconscionable act or fraud have occurred had Mr Hulett not given his daughters an amount of $200,000 each following the receipt of the home sale proceeds;[83]
·Mr Hulett became the sole registered legal owner of the home following Mrs Hulett's death - this outcome was in line with her will. Save for certain items, the residue of her estate, which included her share of the home, passed in full to Mr Hulett. While Mrs Hulett (like Mr Hulett) expressed a wish that her daughters use their share of Mrs Hulett’s estate to purchase a home for themselves if they do not presently own one, this was explicitly stated to be a wish without creating any binding trust or legal obligation;[84]
·Mr Hulett asks the Tribunal to ignore the factual and legal reality of the circumstances, to subvert both the terms and intention of the provisions in the Act dealing with the treatment of the disposal of assets for social security purposes.[85]
[78] Exhibit R1, p 13, para 5.16.
[79] Exhibit R1, p 12, para 5.13.
[80] See paragraph [34] above.
[81] Exhibit R1, p 13, para 5.16-5.17.
[82] Exhibit R1, p 14, para 5.19.
[83] Exhibit R1, p 14-15, para 5.22-5.23.
[84] Exhibit R1, p 14-15, para 5.24.
[85] Exhibit R1, p 15, para 5.25.
Mr Hulett
Mr Hulett says that I should find, as a matter of fact, that the Agreement existed. He further says that, because of the same, there was a common intention constructive trust and that the payment of Mrs Hulett’s share of the net home sale proceeds to her daughters was a trust distribution and not a gift. In particular, Mr Hulett says that:
·there was an agreement with adequately certain terms that was an oral agreement that was a common understanding between all of the family members and one feature of that agreement or common understanding was that care would be provided to Mr Hulett;[86]
·the witnesses were, in their recollection point, quite consistent in there having been an agreement to which Mrs Hulett was a party by which a payment would be made corresponding with her interest in the home, to her daughters and that is actually what has happened;[87]
·the witnesses perhaps were not of a degree of legal sophistication so as to appreciate the relevance of the will and the way that, because the home was held under a joint tenancy, it did not form a part of the testamentary estate and was not subject to any testamentary trust. Instead, any trust in relation to Mrs Hulett’s share in the home had to arise under an agreement that happened during her lifetime independently of her will[88] - the evidence of what is in the will – that is the terms of the will – are not inconsistent with the existence of a common assumption – a common agreement about what would happen with Mrs Hulett’s share of the property.[89]
·the Secretary has focused on what would have happened if there had not been an agreement in relation to Mr Hulett’s care and whether or not his family members, out of love and affection, would have provided him with the same care anyway. Mr Hulett says that, that is not the correct question as to the element of detriment because the detrimental reliance that the constructive trust beneficiaries have to place on the agreement in order for the trust to be applied or inferred, relates to the disadvantage to them and not the disadvantage to Mr Hulett who, after all, was the trustee of the constructive trust and not a beneficiary of the constructive trust.[90]
·Mr Hulett’s daughters would suffer detriment if Mr Hulett had attempted to renege on the Agreement - they would have been able to complain that they had not gained their rightful interests under the Agreement;[91]
·if Mr Hulett had avoided distributing Mrs Hulett’s share of the net home sale proceeds to his daughters, they would have been deprived of the benefit of the Agreement that Mr Hulett says he was honour bound to comply with - being honour bound and having that obligation is enough for the element of unconscionability that would make it unconscionable in terms of the undertakings that were given to Mrs Hulett during her lifetime.[92]
[86] Transcript, p 49, lines 14-17.
[87] Transcript, p 48, lines 24-28.
[88] Transcript, p 48, lines 30-36.
[89] Transcript, p 49, lines 1-3.
[90] Transcript, p 49, lines 20-29.
[91] Transcript, p 49, lines 31-33.
[92] Transcript, p 49, lines 37-41.
Consideration
It was put to me by Mr Hulett that, there are no particularly novel or complex points of law that arise in this case. Rather, it is the factual situation that is complex and the question for the Tribunal is whether Mr Hulett has satisfied the Tribunal of the existence of the trust by adequately evidencing to the Tribunal’s satisfaction the necessary elements of the trust. I accept this submission and the other submissions proffered by Mr Hulett as set out above.
I have already summarised my finding about the witness evidence. I need not repeat them here. It suffices to say that, in my view:
·the witness evidence supports that there was an oral agreement between Mr Hulett, Mrs Hulett and their daughters that was made when Mrs Hulett was alive. Accordingly, I find that the Agreement exists;
·The Agreement substantiates a common intention at law, and an obligation on Mr Hulett, to distribute Mrs Hulett’s share of the home sale proceeds to their daughters; and
·As a matter of fact, Mr Hulett did make trust distributions to his daughters in equal share from Mrs Hulett’s component of the net home sale proceeds.
On the issue of detrimental reliance, the Secretary says that no act was done by Mr Hulett’s daughters (as beneficiaries) in reliance on Mr Hulett’s conduct. I do not accept this. Mr Hulett’s daughters each made their homes available (and continue to make their homes available) to Mr Hulett for in-home aged care. That Mr Hulett chose to live with Ms Gosson does not detract the same. Even if I am wrong about this, had Mr Hulett attempted to renege on the Agreement, then this would have given rise to unconscionability.
On the basis of the foregoing, I am satisfied the evidence substantiates that the necessary elements of a common intention constructive trust exists in this case.
Finally, as is evident from the foregoing findings, I do not see this case as purely a gifting or early inheritance case. To the extent that the witnesses erroneously referenced Mrs Hulett’s will or used the term, inheritance, in their evidence, I accept that such references arose due to a lack of legal sophistication as to the same, rather than “letting the cat out of the bag” as to their intention or understanding. I should also say that I see no deliberate mischief on Mr Hulett’s part to subvert the provisions in the Act dealing with respect to the treatment of the asset disposals for social security purposes. Mr Hulett’s actions (and those of Mrs Hulett and the daughters) in reaching the Agreement, can properly be understood in the legitimate context of their historical financial and social circumstances, and the desire to cement a firm arrangement in relation to family housing security and in-home aged care.
DECISION
The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 10 May 2022. The Tribunal substitutes a decision that the Applicant gifted $233,090.32 for the purposes of section 1126AA of the Social Security Act 1991 (Cth).
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
..............[SGD].....................
Associate
Dated: 7 February 2024
APPENDIX 1 LEGAL FRAMEWORK[93]
[93] The legal framework is extracted from the Respondent’s Statement of Facts, Issues and Contentions (Exhibit R1, p 3-10, paras 4-4.19.). There is no dispute between the parties as to the legal framework (see Transcript, p 6, lines 21-24.
Legislation and Policy
The relevant legislation is set out in the following instruments:
(a)Social Security Act 1991 (Act); and
(b)Social Security (Administration) Act 1999 (Administration Act).
Relevant policy is set out in the Social Security Guide (Guide), and should generally be applied in the absence of cogent reasons to depart from its application (see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645).
Qualification and payability of age pension
Age pension is means tested.
Section 43 of the Act sets out the general qualification for age pension.
Subsection 55(a) of the Act provides that, where a person is not permanently blind, their age pension rate is worked out using Pension Rate Calculator A contained at section 1064 of the Act.
Paragraph 1064(1)(a) of the Act provides that the rate of age pension is, subject to subsection (2) (which is not relevant), to be calculated in accordance with the Rate Calculator at the end of the section.
Section 1064-A1 provides for the overall rate calculation process (called the 'method statement'). Relevantly, after calculating the 'maximum payment rate' (see Step 4):
(a)Step 5 provides for the application of the ordinary income test using Module E in section 1064-E1 to work out the income reduction, following which the subtraction of the income reduction from the maximum payment rate results in the 'income reduced rate' (see Step 8);
(b)Step 9 provides for the application of the assets test using Module G in section 1064-G1 to work out the reduction for assets, following which the subtraction of the reduction for assets from the maximum payment rate results in the 'assets reduced rate' (see Step 10);
(c)Step 11 provides for a comparison of the income reduced rate and assets reduced rate, and provides that the lower of the two rates (or the income reduced rate if the rates are equal) is the provisional annual payment rate; and
(d)Step 12 provides for the obtaining of the rate of age pension.
In short, the rate of age pension payment is calculated under both the assets and income tests. The test that results in the lower rate (or nil rate) will apply. Paragraph 4.2.3 of the Guide explains how the 'pensions assets test' applies:
Pensions assets test
The pensions assets test applies to all pensions. The assets test is only applied where a person's assets exceed the assets free areas for full pension. If assets exceed the assets free areas, pension entitlement is assessed by:
·calculating the rate payable under the assets test, and
·comparing that with the rate payable under the income test.
The assets test only applies if it produces a lower rate of payment than the income test.
Value of assets
Step 1 of the method statement at Module G of section 1064-G1 is to 'work out the value of the person’s assets'.
In subsection 11(1) of the Act, 'asset' is defined to mean 'property or money (including property or money outside Australia)'.
Disposal of assets
Division 2 of Part 3.12 of the Act deals with the disposal of assets.
Subsection 1123(1) of the Act provides as follows:
Disposal of assets
(1) For the purposes of this Act, a person disposes of assets of the person if:
(a) the person engages in a course of conduct that directly or indirectly:
(i) destroys all or some of the person’s assets; or
(ii) disposes of all or some of the person’s assets; or
(iii) diminishes the value of all or some of the person’s assets; and
(b) one of the following subparagraphs is satisfied:
(i) the person receives no consideration in money or money’s worth for the destruction, disposal or diminution;
(ii) the person receives inadequate consideration in money or money’s worth for the destruction, disposal or diminution;
(iii) the Secretary is satisfied that the person’s purpose, or the dominant purpose, in engaging in that course of conduct was to obtain a social security advantage.
Section 1124 of the Act provides that the amount of the disposal or disposition is as follows:
Amount of disposal or disposition
If a person disposes of assets, the amount of the disposal or disposition is:
(a)if the person receives no consideration for the destruction, disposal or diminution—an amount equal to:
(i) the value of the assets that are destroyed; or
(ii) the value of the assets that are disposed of; or
(iii) the amount of the diminution in the value of the assets whose value is diminished; or
(b)if the person receives consideration for the destruction, disposal or diminution—an amount equal to:
(i) the value of the assets that are destroyed; or
(ii) the value of the assets that are disposed of; or
(iii) the amount of the diminution in the value of the assets whose value is diminished;
less the amount of the consideration received by the person in respect of the destruction, disposal or diminution.
The effect of such a disposal for an individual is set out in section 1126AA of the Act, which provides relevantly as follows:
Disposal of assets in income year—individuals
Disposals to which section applies
(1) This section applies to a disposal (the relevant disposal) on or after 1 July 2002 of an asset by a person who is not a member of a couple at the time of the relevant disposal.
Increase in value of assets
(2) If the amount of the relevant disposal, or the sum of that amount and the amounts (if any) of other disposals of assets previously made by the person during the income year in which the relevant disposal took place, exceeds $10,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the person's assets for the period of 5 years starting on the day on which the relevant disposal took place:
(a) the amount of the relevant disposal;
(b) the amount by which the sum of the amount of the relevant disposal and the amounts (if any) of other disposals of assets previously made by the person during the income year in which the relevant disposal took place, exceeds $10,000.
…
Section 1126AB of the Act provides that, for individuals, there is a disposal limit of $30,000 over a five-year period:
Disposal of assets in 5 year period—individuals
Disposals to which section applies
(1) This section also applies to a disposal (the relevant disposal) on or after 1 July 2002 of an asset by a person who is not a member of a couple at the time of the relevant disposal.
Increase in value of assets
(2) If:
(a) the sum of the amount of the relevant disposal and the amounts of any previous disposals of assets made during the rolling period by the person;
less
(b) the sum of any amounts included in the value of the person's assets during the rolling period under section 1126AA, 1126AB or 1126AC or any previous application or applications of this section;
exceeds $30,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the person's assets for the period of 5 years starting on the day on which the relevant disposal took place:
(c) an amount equal to the excess;
(d) the amount of the relevant disposal.
…
Rolling period
(4) For the purposes of this section, the rolling period is the period comprising the income year in which the relevant disposal took place and such (if any) of the 4 previous income years as occurred after 30 June 2002.
In summary, the following principles apply to the disposal of assets by a person who is not a member of a couple at the time of the relevant disposal:
(a)a person disposes of an asset if they dispose of some or all of an asset and do not receive adequate consideration for the disposal (section 1123 of the Act);
(b)if the person receives no consideration for the disposal, the amount of the disposal or disposition is the value of the asset that was disposed of (subsection 1124(a) of the Act);
(c)the amount in excess of $10,000 disposed in an income year is included in the value of the person’s assets for a period of 5 years following the disposal (section 1126AA of the Act); and
(d)there is a disposal limit of $30,000 over a 5 year period (section 1126AB of the Act).
Paragraph 1.1.A.55 of the Guide states as follows in relation to adequate financial consideration in relation to assets:
For adequate financial consideration to be received, the person must receive value in the form of money or assets (1.1.A.290). Adequate financial consideration can be accepted when the amount received reasonably equates to the market value (1.1.M.40) of the asset. It may be necessary to obtain a valuation from a professionally qualified valuer appointed by Centrelink.
Paragraph 4.1.1 of the Guide states as follows with respect to general provisions of deprivation:
Disposing of an asset or income
For deprivation provisions to apply it MUST be shown that a recipient has destroyed or diminished the value of an asset (1.1.A.290), income, or a source of income.
A recipient disposes of an asset or income when they:
…
·engage in a course of conduct that destroys, disposes of or diminishes the value of their assets or income, AND
·do not receive adequate financial consideration (1.1.A.55) in exchange for the asset or income.
…
Disposal of a non-farm asset to a family member
An asset IS disposed of IF a recipient:
·transfers an asset to a family member, AND
·does NOT receive adequate financial consideration in return.
Adequate financial consideration is NOT accepted when a recipient disposes of an asset or income to a family member:
·for the promise of future accommodation, OR
·in recognition of work done by the family member which is carried out as part of the 'natural love and affection' within a family, or is carried out merely as a moral obligation. Work carried out as part of a moral obligation is NOT consideration.
Example: Activities that would fall into these 2 categories would include the running of errands from time to time, or the occasional transport of a relative to shopping venues or to medical appointments.
Exception: Adequate financial consideration MAY be accepted IF a recipient:
·transfers money or valuable consideration (1.1.V.25) for a granny flat, OR
·transfers a farm to a close relative in recognition of past contributions, OR
·pays a family member for a substantial amount of work, or a substantial one off task which is outside that which would be required by the family member's normal love and affection or moral obligation.
Example: A recipient pays their son $14,000 to paint their house inside and out. This is around the market price for this work.

Paragraph 4.12.3.51 of the Guide also states as follows with respect to constructive trusts:
Constructive trusts
Constructive trusts are non-express trusts and can be imposed by a court irrespective of the intention of the parties. A constructive trust may be imposed by a court where the party with legal title has a fiduciary obligation to another, usually due to past events or actions by the parties. However, the most frequent constructive trust is a common intention constructive trust.
Common intention constructive trusts
A common intention constructive trust is created to enforce a promise and/or a gift. The following elements need to be demonstrated to establish the existence of a common intention constructive trust:
·there must have been a common intention between the legal owner of the property and the beneficiary, regarding the beneficiary's beneficial ownership of the property,
·this common intention is to be inferred as a fact from the words or conduct of the parties,
·the beneficiary must be able to show that they have acted to their detriment on the basis of the common intention as to the beneficial ownership of the property, and
·it must be a fraud on the beneficiary for the legal owner to assert that the beneficiary did not have the beneficial interest in the property.
Assessment of a constructive trust
Generally the private trust and companies rules are to be applied to constructive trusts. Generally, because of the nature of a constructive trust, the operation of the trusts and companies rules will not change the attribution of the property of the trust from that which would have applied in the event that the trust and companies rules did not apply, that is in most cases the beneficiary should be the 100% attributable stakeholder in regard to the assets of the trust. However, it is important to note that, notwithstanding the fact that the ultimate result may not be changed by the application of the trust and companies rules, it is still important to give effect to these rules when making a decision in regard to this sort of trust. This is irrespective of when the constructive trust was created.
Explanation: A constructive trust arises where an individual can establish that in spite of being the legal owner of an asset, that they only hold this asset on behalf of someone else.
APPENDIX 2 – Exhibit Register

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

TR1. Section 37 T-Docs (T1-T16, 171 pages) - 04.07.2022

A1. Applicant’s Statement of Facts, Issues and Contentions 10.05.2023 12.05.2023

A2. Applicant’s Reply 11.08.2023 11.08.2023

A3. Statutory Declaration of Edward Hulett 10.05.2023 10.05.2023

A4. Statutory Declaration of Barbara Gosson 22.07.2023 03.08.2023

A5. Statutory Declaration of Brenda Baker 19.07.2023 03.08.2023

A6. Statutory Declaration of Carol Edwards 21.07.2023 03.08.2023

R1. Respondent’s Statement of Facts, Issues and Contentions 27.07.2023 27.07.2023

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
TR1.	Section 37 T-Docs (T1-T16, 171 pages)	-	04.07.2022
A1.	Applicant’s Statement of Facts, Issues and Contentions	10.05.2023	12.05.2023
A2.	Applicant’s Reply	11.08.2023	11.08.2023
A3.	Statutory Declaration of Edward Hulett	10.05.2023	10.05.2023
A4.	Statutory Declaration of Barbara Gosson	22.07.2023	03.08.2023
A5.	Statutory Declaration of Brenda Baker	19.07.2023	03.08.2023
A6.	Statutory Declaration of Carol Edwards	21.07.2023	03.08.2023
R1.	Respondent’s Statement of Facts, Issues and Contentions	27.07.2023	27.07.2023