In the matter of the Bankruptcy Act 1966 and in the matter of an application for declarations re Ronald James Masters ex Parte Masters, Jeanette Margaret v the Official receiver

[1977] FCA 79

No. I<T.S.N. 29G of 1972

I n the matter of THE BiQ1;RUPTCY ACT

--

- 1966

llnd i n =he matter of -

IW APPLICATION FOR DECLAFATIONS IG? -

ROIGLD JAIiES fiI&S'i'EHS -

E x parte: Jeanette Narcjaret hiastsrs

A p p l i c a c t

T h e Official R e c e i v e r

R e s p o n d e n t

J U I C E K!AKl.I?G ORDER: R l l e y J.

D?!PE OF ORWr'K 2 5 October 1977

WERE i4ADE :	Syd?ey
THE COURT ORDERS THAT:	T h e appl lcat ion be dlsmissed.
A p p l i c a n t t o pay  Of f i c i a l Recelver's
taxed costs of  the appl lca t ion .

CATCHYIORDS

Bankruptcy - House and car bought by husband and wife -

Registered i n j o i n t names - Bankruptcy of husband - Whether

husband ' s l ega l m'cerests h e l d on t r u s t for v 7 1 f e .

REASONS FOR JUDGHEMT

h s e q u e s t r a t i o n o r d e r was made a g a i n s t t h e estate of

l Ronald James Masters on 22 June 1972. T h l s a p p l i c a t l o n , made on

7 J u l y 1977 by h i s b7ife Jeane'cte Margaret Masters, seeks

d e c l a r a t i o n s t h a t t h e b a n k r u p t h o l d s i n t r u s t f o r h i s w i f e

(a) h i s legal i n t e r e s t i n t h e h o u s e and land known a s

9 Marden Street , George's Hall and

( b ) h i s l e g a l i n t e r e s t i n a 1 9 7 1 Ford Falcon Sedan car.

The Off ic ia l Fsce iver as t r u s t e e o f t h e b a n k r u p t ' s estate has

f i l e d a not lce o f oppos i t ion which , as amended by leave, opposes

r

t h e making of t h e d e c l a r a t i o n s s o u g h t on the grounds t ha t neither

t h e b a n k r u p t ' s i n t e r e s t i n t h e h o u s e and land nor h i s I n t e r e s t

i n t h e c a r were e v e r h e l d i n t r u s t by t he bankrup t fo r t he

app l i can t .

Evidence was given only by the appl icant and the

bankrupt. The appl icant swore two a f f i d a v i t s , a n d e m e r g e s t h e b a n k r u p t

one, and both gave oral evidence. The s t o r y t h a t from

a c o l l a t i o n of. t h a t e v i d e n c e is as fo l lows .

llr. Masters (who was then a d ivo rcee ) and t he app l i can t

I	were marr ied	on	31 March	1 9 6 7 .	A t a l l r e l e v a n t	times	from
I

abou t 1965 un t i l h i s bankrup tcy M r . Mas ters car r ied on bus iness

,.-

a s a wholesa le r of l i g h t f i t t i n g s . Be had an account

(No. 380466) with the Commonwealth Trading Bank a t Beverley Hil ls ,

which I s h a l l c a l l h i s b u s i n e s s a c c o u n t . It had been opened

wi th an ove rd ra f t of $4,000 guaranteed by two f r i e n d s . A t no

! r e l e v a n t time has it e v e r b e e n i n c r e d i t , and it has on most

occasions been overdrawn by more than $4,000.

Both be fo re and f o r a time a f t e r h e r m a r r i a g e Mrs.

Masters was i n employment a s a r e s u l t of which she had saved

money tha t she pu t in to var ious sav ings and o ther bank accounts

i n h e r own name. She says tha t in October 1 9 6 6 , be fo re he r

marr i age , he r pa ren t s l en t he r fu tu re husband $4,000 f o r t h e

purpose of paying bus iness debts which he owed. I s h a l l

r e t u r n t o t h i s matter.

E I r . and Mrs. biasters began their marr ied l i f e b y l i v i n g

w i t h a sister of h i s , b u t d e c i d e d t o l o o k f o r a block o f l and

on which they could build a house of t h e l r own.

A t a b o u t t h i s stage, it is s a i d , t h e y came t o a n

agreement between themselves. M r . Masters needed fo r t h e

purposes o f h i s bus iness any money tha t he had . H i s wife had

some savings and a job. She would be providing a t l eas t as

much as she could of t h e f i n a n c e f o r b u y i n g t h e l a n d a n d

bu i ld ing t he house . She s ays ( t r ansc r ip t 15 /16 ) t ha t , because

I

her husband had previously been married and divorced and

"although it is n o t a n i c e t h i n g t o t a l k a b o u t it, it can always

happen aga in" , t hey ag reed t ha t t he re fo re t he l and and house

would belong t o h e r t h o u g h , i n order t o ob ta in bank f i nance , t he

t i t l e would be r e g i s t e r e d i n t h e i r j o i n t names. The evldence

of Vx. Masters d i d n o t a p p r e c i a b l y s u p p o r t h i s wife's on t h i s

matter, and he exp la ined t he j o in t r eg i s t r a t ion mere ly as be ing

"genera l p rocedure wi th	a	husband	and	wife"	( t r a n s c r i p t 38).
They	d id no t ment ion tha t agreement	t o	t h e	so l ic i tor	who

ac ted for them wlien, as will appear , they bought some l a n d , o r

t o t h e a u t h o r i t y when bank when o b t a i n i n g a b u i l d i n g l o a n , o r t o t h e r e l e v a n t

seeking a home g ran t f rom the Commonwealth, o r

t o anyone bankrup tcy ( t r ansc r ip t i n a n o f f i c i a l c a p a c i t y u n t i l after the husband ' s

4 3 ) .

Mrs. Masters says tha t it was a l s o ( b u t l a t e r ) agreed

t h a t as t h e p r o p e r t y would belong t o her a lone , her husband

would have t o pay her ren t , f rom which she in tu rn would make

repayments for money borrowed from the bank, and payments of

c o u n c i l ra tes and water rates, "so t h a t t h e h o u s e i s s t i l l

m i n e " ( t r a n s c r i p t 3 5 ) . Her husband concurs, though he say;

t h a t " t h e a c t u a l w o r d s	were,	it	would	be	a	fo rm o f r en t "
( t r a n s c r i p t 4 2 ) .

They searched for land, and sav7 b l o c k s c o s t i n g up to

$10,000. Ofi 26 October 1967 Mrs. Masters drew $1,500 from one

-

of her savings accounts and paid it i n t o her husband's buslness

account, so t h a t i f they found a su i tab le b lock he would be

a b l e t o hand over a cheque f o r a deposit w i thou t de l ay . Then

they found, and decided to b u y , t h e s u b j e c t l a n d a t 9 Marden

St ree t , George ' s Ball, for $3,800. Mr. Xasters p a i d t h e

deposit of h i s w i fe had opened w i th t he $380 by cheque drawn on his business account. He and

Commonwealth Trading Bank a t

Beverley H i l l s an account (" the land purchase account")

(No. 380642) i n t h e i r j o i n t names. There were b u t f o u r sums of :

money e v e r d e p o s i t e d i n t h a t a c c o u n t . A p p a r e n t l y it was

opened with a d e p o s i t by Mrs. Masters on about 15 March 1 9 6 0

of $336 -- drawn from one of h e r own accounts . On about 1 8 March

1968 she deposi ted i n the land purchase account $1,100 drawn

--

from another of her accounts and her husband depos i ted in It

$200 drawn from h i s bus iness accoun t . k cheque fo r $3,432.37

was dravm on the l and purchase account on 3 May 1968 t o pay

f o r t h e b a l a n c e of t h e moneys payable on the purchase of the l and . '

The	drawing	of	t h a t c h e q u e p u t t h e a c c o u n t i n d e b i t , a n d	it	so
remained	u n t i l t h e d e b i t b a l a n c e	was	reduced	t o n i l by	payment

i n t o it of t h e f o u r t h d e p o s i t , a cheque for $1,940.47 drawn by

Mr. Masters on h i s bus iness accoun t on 1 9 May 1 9 6 9 .

Mrs. M a s t e r s s a y s t h a t s h e c o n t r i b u t e d t o the purchase

of the l and t he fo l lowing aitlounts mentioned above:

$1,500

336

1,100

$2,936

She also says t h a t t h e t o t a l cost or' the land&,i including interesL

and bank charges debited to the land purchase account , vas

$3,956.47, and t h a t t h e d i f f e r e n c e of $1,020.47 between t h a t

amount and $2,936 was a l s o c o n t r i b u t e d b y h e r , as it came

f rom the $4,000 which her parents had lent her husband and which

her husband, she says, was bound t o s a y t o her. The l e g a l

costs and disbursements and stamp duty were paid by her husband

o u t of h i s bus iness accoun t . The re i s no evidence as t o

the amounts o f those charges , but Mrs. IVIasters s a y s t h e y were

covered by money provided by her .

The n e x t e v e n t was t h a t on 1 9 December 1 9 6 6 t h e

Commonwealth Trading Bank a t Beverley H i l l s announced i t s

approval of a loan (No. SN/2-057621-05) of $8,000 t o h e l p w i t h

the b u i l d i n g of t h e h o u s e t h a t now s t a n d s a t 9 Marden S t r e e t .

The c o n t r a c t p r i c e t h a t h a d b e e n o b t a i n e d f o r t h e b u i l d i n g vas

$9,236,	so t h e d i f f e r e n c e	of	$1,236	had	t o be	provided.	On
31 March	1 9 6 9	t h a t amount	was	p a i d	t o	t h e c r e d l t o f l o a n	No.

SN/2-057G21-05. It had been drawn from a j o i n t home savings

account (No. 20222) which Mr. and Firs. Masters had opened with

t h e Conunonwealch Trading Bank wi th t he ob jec t , wh ich t hey d ld

n o t a c h i e v e , o f o b t a i n i n g a home g r a n t from t h e Commonwealth

Government.	It h*ad b e e n p a i d	i n t o	t h a t	a c c o u n t	by	Krs.	Masters
a n d r e p r e s e n t e d p a r t	of	he r	pe r sona l	s av ings ,	Her	husband	did

n o t e v e r c o n t r i b u t e a n y t h i n g t o t h e home savings account No.

20222, and she therefore claims t h a t s h e c o n t r i b u t e d a f u r t h e r

$1,236 to t h e b u i l d i n g of the house.

The house was b u i l t , a n d t h e bank paid the $8,000

towards i t s cost. That loan of $8,003 now had t o be repa ld w l th

i n t e r e s t . The arrangement with the bank was t h a t t h e bank would

automatlcal	ly	draw f	rom the husband's	business	account	each
month	t h e	amount	of	the month ly ins ta lment	of	p r i n c i p a l a n d
i n t e r e s t .	U n t i l	O c t o b e r	1974	t h a t amount v7as	$56	and

t h e r e a f t e r it became $64 . To cover such drawings, there were

p a i d ir?to the husband's business account on 8 February 1 9 7 0

an amount accounts, of $700 drawn by Mrs. Masters from one of her personal ,

-

and on 1 2 May 1970 an amount of $550 dravm from t h e

-

j o i n t home r ema in ing i n t ha t accoun t . savings account N o . 20222, be ing t he ba l ance t hen

That errangement with the bank continued up to t h e

time of the monthly payments have been husband's bankruptcy on 22 June 1 9 7 2 . T h e r e a f t e r t h e ,

made t o t h e bank i n c a s h by

Mrs. Masters, wi th money g iven her by her hushmd f rom h is

I

ea rn ings -

The f i r s t q u e s t i o n f o r d e c i s i o n i s whether the

a p p l i c a n t i s s o l e l y e n t i t l e d , t o the exc lus ion of her husband,

t o the land and house of which the two of them are r e g i s t e r e d

as p r o p r i e t o r s . From t h e f a c t t h a t t h e y are so r e g i s t e r e d

the re f l ows a presumption of co-ovnership, and the burden of

r e b u t t i n g t h a t p r e s u m p t i o n l ies on t h e a p p l i c a n t . I n my

op in ion she has f a i l ed t o d i s c h a r g e t h a t b u r d e n .

Her case depends en t i r e ly on the evidence of her husband

and h e r s e l f , which is independent ly supported only as t o some

i n c i d e n t a l matteys, such as t h e movements i n bank accounts.

I was not impressed by t h a t e v i d e n c e . I n h e r a f f l d a v i t o f

15 September 1977 t h e a p p l i c a n t ' s c l a i m was cast d i f f e r e n t l y

from	t h e way	i n which	it was	cast	i n h e r a f f i d a v i t o f	22	June.
The	c o n t r i b u t i o n s s a i d	t o	have been	made	by her	to ta l	$ 9 , 4 2 2

i n t h e earlier a f f i d a v i t and $13,192.47 i n t h e l a t e r . The

consti tuent amounts of $1,500, $336, $1,100 and $1,236 are

common t o b o t h ; b u t t h e earlier amount of $4,000 representing

I

the loan f rom the parents becomes $1 ,020 .47 i n t h e later

a f f i d a v i t , and the two sums of $700 and $550 i n t h e earlier

appear t o be absorbed. i n t h e t o t a l of $E ,000 € o r t h e bank loan

i n t h e l a t e r .

The appl icant and her husband (who c l e a r l y Lad an

i n t e r e s t i n s u p p o r t m g h e r e v i d e n c e ) were not convinc ing

wi tnesses .	In my	view Mrs.	Masters was	b e t t e r aware	t h a n h e r
husband	t h a t	it	might be sugges ted tha t the amounts	she	pa id

i n t o h i s bus iness account were i n f ac t so p a i d f o r t h e p u r p o s e s

of the bus iness , and t he re was accord ingly some d iscrepancy

be tween	cer ta in	answers	tha t	they	gave .	Each was	asked
whether,	when	the $1,500	vas	t r a n s f e r r e d b y h e r	t o her	husband’s	’

bus iness accoun t , t ha t accoun t was overdrawn. She said she

dFd	n o t knov	-	“I have	no knowledge and nothing	t o do with	my
husband‘s	business	account .	-..	I never knew any th ing	abou t	t he

! cond i t ion of h i s a c c o u n t o r a n y t h i n g t o d o w i t h t h e b u s m e s s or

a n y o t h e r overdravm a t t h a t time: m a t t e r ( t r a n s c r i p t 2 0 ) . H e s a i d h i s a c c o u n t was

it was always overdrawn and h i s v i fe

knew about it ( t r a n s c r i p t 3 9 ) .

I have come t o t h e c o n c l u s i o n t h a t t h e e v i d e n c e t h a t

t h e r e was an agreement tha t the husband should pay ren t is n o t

t r u e . I t h i n k it was an i nven t ion ( la te r i n o r i g i n t h a n t h e

i

a f f i d a v i t o f 22 June 1 9 7 7 , i n which it is not ment ioned)

designed	t o	dea l w i th t he p rob lem o f t he paymen t s ,	after	t h e
husband became bankrupt,	of	instalments	due under	the mortgage.

It was so poor ly fixed i n t h e a p p l i c a n t ’ s mind t h a t i n h e r

oral ev idence , bo th when examined i n c h i e f by h e r own counse l

( t r a n s c r i p t 15/16-17) and when cross-examined by counsel for

t h e Official Receiver ( t r a n s c r i p t 35-36) as to the payments

she made on each occasion after her husband’s bankruptcy, her first thought

was t o s a y t h a t t h e y were made o u t of moneys

he pa id he r In d i scha rge of an ob l iga t ion , and it was only

!

af ter p romptmg tha t she spoke of an agreement t o pay r e n t .

I
I

Her husband seemed s i m i l a r l y c o n f u s e d ( t r a n s c r i p t 41 -42) . ir:

is inherent ly Improbable that such an agreement was made, m d

I do no t accep t t h e evldence t ha t It was.

The u n r e l i a b i l i t y of t h e witnesses a s t o t h a t n a t t e r

colours the whole of the i r ev idence , and I do no t accept t h e n

s to ry a purpor ted to have s t o t he ag reemen t abou t owner sh ip . The applicant

a p r e c i s e r e c o l l e c t i o n o f t h e r e l e v a n t c o n v e r -

sa . t ion, but her memory was vague as t o o t h e r d e t a i l s , and r h e

support g iven to her evidence by her husband was n e g l i g i b l e .

In my opin ion the ev idence on t h i s m a t t e r f a i l s t o i n d i c a r e a

t r u s t .

Then it was s u b m i t t e d t h a t a t r u s t a r o s e f rom the f ac t

t h a t t h e a p p l i c a n t p a i d t h e w h o l e of the purchase money f o r

land and house . But tha t fac t i s no t e s t ab l i shed by t he

evidence.

It is necessary now t o r e t u r n t o t h e s u b j e c t o f t h e l o a n

of	$4,000	sa id to have been	made	t o	Mr.	Masters by the parenrs
of his f i ancee	( a s	she	t hen	was) i n 19GG.	The sum	of $ 4 , 0 0 0

was lodged t o t h e c r e d i t o f h i s b u s i n e s s a c c o u n t on 1 7 October

1 9 6 6 . Mrs. M a s t e r s s a i d i n h e r a f f i d a v i t of 22 June 1 9 7 7

t h a t t h e p u r p o s e of t h e l o a n i7as to enable her husband to pay

I

o u t s t a n d i n g d e b t s . I n h e r o r a l e v i d e n c e i n c h i e f s h e s a i d t h a t

" t h e $4,000 even tua l ly r epa id by t he which they had or ig ina l ly l e n t t o my husband was

bad debtor he had" ; and , having re fer red -

t o t h e sum of $1,020.47 mentioned above, said that the balance

($2 ,979 .53 bu t	r e f e r r ed t o	as	$2,980)	"was t o be	used	to
con t inue pay ing o f f t he l oan	and	a t t h e	time	of	my	husband

becoming bankrupt that amount was s t i l l owing t o me because my

pa ren t s had given m e t h a t money a s a g i f t " . The " loan" t he re

mentloned was c l e a r l y t h e bank loan of $8,000, because she t h e n .

s a i d t h a t t h e amount of $ 2 , 9 8 0 "vas used towards the house,

towards the mor tgage repayments". Of t :hat amount she sald

$409 was p a i d i n t o t h e j o i n t home savings account and the

remaining $2,571 was used "as repayments on the house mortgage".

In cross-examinat ion Nrs. blasters s a i d ( t r a n s c r i p t 2 9 ) ,

of "the $4,000 my p a r e n t s had l e n t my husband i n 1 9 6 6 " ,

" t h a t money was f lowing back in f rom h is bad debtor and ,

knowing it was flowing back In I Ire approached my

p a r e n t s t o u s e t h i s money for the purchase o f a home,

t o vrhlch they agreed. None of t h a t money was ever

r e p a i d t o my p a r e n t s a n d t h i s i s why: they had given

my b r o t h e r a sum of money and he was buying a house

a n d t h e y d e c i d e d t h a t r a t h e r t h a n t r y t o g e t u s t o

repay that $4,000 they would give it t o m e as a

s t r a i g h t o u t g i f t l i k e they gave my bro ther and I

d i d n o t owe them any more than t h a t $4,000. It was

a n o u t r i g h t g i f t t o me".

She a lso gave t he fo l lowing ev ldence ( t r ansc r ip t 31/33) :

"Q. A r e you a b l e t o say whether your husband in fact

p a i d t h e	sum	of $4 ,000 t o your pa ren t s a f t e r
t h a t l o a n	was	made?

A. My parents have never rece ived any of tha t $4 ,000

back. T h i s is why I have s ince s a id t o you tha t

they have given m e t h a t money, because there was

l i t t l e l ike l ihood o f them e v e r g e t t i n g ( a n y t h i n g )

back under the c i rcumstances which have ar isen

s i n c e t h e y made t h a t l o a n .

a. Dld t h e y p h y s i c a l l y g i v e pou $4,000?

A. They t r a n s f e r r e d t h e amount d i r e c t l y i n t o my

husband ' s bus iness account a t t h e time t h a t t hey

gave m e t he	l oan .	Tha t	was	I	b e l i e v e	i n October
1 9 6 6 . "

It will b e o b s e r i e d t h a t Mrs. Biasters is t h e r e r e p o r t e d as

speaking of the $4,000 as be ing a loan made t o h e r , n o t t o

Mr. Masters. I t h i n k however t h a t h e r words a c t u a l l y were

' I . . . a t t h e time	they	gave	h im the
- l oan" . N o submission ~ 7 9 s

based on her having said otherwise, and	I	t h i n k t h e t r a n s c r i p t
h e r e	i s	i n e r r o r .
I have r e f e r r e d a b o v e t o t h e d e b i t b a l a n c e o f t h e l a n d

pu rchase accoun t be ing r educed t o n i l on 19 May 1 9 6 9 by t h e

d e p o s i t of a cheque for $1,940.47 drawn by M r . Masters on h i s

bus iness account . In cross-examination Mrs. Masters was asked

whethe r t he who le o r pa r t o f t ha t amount of $ 1 , 9 4 0 . 4 7

r ep resen ted moneys t h a t s h e had t r a n s f e r r e d i n t o t h e b u s i n e s s

account . She rep l ied ( t ranscr ip t 30) :

"Part of it was	from	t h e	$1,500 a t t h a t s t a g e	i	had
t r ans fe r r ed , and t he ba l acce	was	from	t h e	$ 4 , 0 0 0	loan

t h a t my p a r e n t s had extended as my husband got the

money back from h i s bad deb-cor. ..."

But,	as	I	have sa id ,	she	claims	t h a t t h e	sum of	$2,936
con t r ibu ted	by	her	(which	included	the	$1,500)	was	s h o r t o f

t h e t o t a l c o s t o f t h e l a n d	by $1,020.47 and that the	l a t t e r
amount came	from t h e $4,000.	Thus it is d l f f i c u l t t o see how
any p a r t bus iness account	of	the $1,940.47 provided from her husband's

on 1 9 May 1 9 6 9 , a y e a r a f t e r t h e l a n d had been

p a i d f o r , c o u l d r e p r e s e n t p a r t o f t h e $1,500.

i f t h e c o n t e n t i o n is t h a t t h e p a r e n t s ( n e i t h e r of whom

gave ev idence ) a s s igned t o t he i r daugh te r t he deb t owed them

by her husband, the ev idence in my view i s I n s u f f i c i e n t t o

e s t a b l i s h an assignment.

I am the re fo re unab le on t h e e v i d e n c e t o c o n c l u d e t h a t

the appl icant ' s husband was u n d e r a n o b l i g a t i o n t o h e r i n

I

r e l a t i o n t o , o r t h a t s h e was e n t i t l e d t o receive, any p a r t o f

t h e $4,000. It f o l l o w s t h a t i n my opin ion she cannot clalm t h a t

any payment made from the $4,000 i n r e s p e c t o f t h e l a n d a n d

house was made by he r .

The a p p l i c a n t c l a i m s t h a t s h e p r o v i d e d :

( a )	moneys pa id	i n to	he	r	husband ' s	bus	iness
account :

I '

1 ,500

700	(appl ied	in	mortgage repayments)
11 ,I ,I )2,750

550 ( "

(b)	moneys pa id	i n to	t he	l and	pu	rchase	accoun t :
336

1,100 1,436

(c) moneys p a i d i n t o t h e home savings account 1,236

5,422

(d) f rom the $4,000 l e n t by he r pa ren t s 1 , 0 2 0 . 4 7

(e) mortgage repayments s ince her husband's

ban1:ruptcy on 2 2 June 1 9 7 2 .

From what I have said above it f o l l o w s t h a t c l a i m (d)

must f a i l .

C l a i m (e) must f a i l a l s o . It is based on t h e

p ropos l t i on t ha t t he paymen t s i n ques t ion	were	made	from moneys
which her husband pa id the appl icant pursuant to	a	claim	by him

t o pay he r r en t (o r some payment i n t h e n a t u r e o f r e n t ) , o r

because he owed money t o h e r , o r by way of g i f t . T h e r e 1s no

ev idence o f g i f t . I h a v e s a i d t h a t I do n o t a c c e p t t h a t

t h e r e was any such agreement t o pay r e n t , o r t h a t t h e h u s b a n d

owed a n y t h i n g i n r e s p e c t of t h e $4,000 l e n t by t h e a p p l i c a n t ' s

pa ren t s . On the ev idence t he re i s no way In which her husband

could be sa id t o have owed t h e a p p l i c a n t money o therwise than

by h a v i n g f a i l e d t o a c c o u n t f o r t h e t o t a l o f $ 2 , 7 5 0 p a i d by he r

i n t o h i s b u s i n e s s a c c o u n t . The app l i can t has no t p roved t ha t

he did so f a i l , s ince he pa id t he fo l lowing amounts o u t of

h i s bus lness accoun t :

l and (1) depos i t on 380 .00

( 2 ) pa ld in to l and purchase account 200 .00

I, I , , 1 , 9 4 0 . 4 7

(3) "

2 ,520 .47

(4 ) t h e u n p r o v e d t o t a l o f t h e l e g a l c o s t s and

disbursements and stamp duty	on	the pu rchase
o f t he l and .

(5) $56.00 a month un t i l t he bankrup tcy ( t owards

t h e t o t a l of which t h e app l i can t p rov ided

$700 + $550 = $ 1 , 2 5 0 ) .

I t h e r e f o r e d i s m i s s t h e a p p l i c a t i o n as f a r as It

concerns the bankrupt ' s in terest in the l and and house .

The c a r t o wh ich t he app l i ca t ion s econd ly r e fe r s r r a s

bought on h i r e p u r c h a s e . It c o s t a to t a l o f $3 ,237 . In he r

a f f i d a v i t of 2 2 June 1977 t h e a p p l i c a n t said tha t she bough t

it i n t h e names of her husband and herself . She a lso sald In

e f f e c t t h a t $2,007.64 vas pa id by her as follows:

1.     Deposit

(a) Allowed on t r ade - in o f a car

her owned by 637

(b) From her savings from wages 500

From her cheque account __- 100 600 1,237

2 .      Repayments

(c) From moneys paid weekly t o

her by her husband in

repayment of a loan 210

(d) Prom money she earned by sewing 200

(e) From savings of housekeeping

360.64 money from husband 770 .64

2 , 0 0 7 . 6 4 '

Fur the r , she s a id t ha t " the ba l ance o f t he r epaymen t s on t h e

v e h i c l e i n the sum of $1,229.36 was paid by my husband". In

h i s a f f i d a v i t of 22 June 1 9 7 7 Nr. Masters s a i d "I s a y t h a t t h e

only payments made by m e i n r e s p e c t o f t h e (car) have been

repayments total l ing $1,229.36 out of t h e t o t a l costs of the

I

vehicle	of	$3,237".
In ev idence before me Mr. M a s t e r s s a i d ( t r a n s c r i p t )

44-45) t h a t it was he a lone who e n t e r e d i n t o t h e h i r e p u r c h a s e

agreement:  h is wife was n o t a p a r t y t o it. ( I n c i d e n t a l l y ,

I

h i s a p p l i c a t i o n form s t a t e d t h a t h e was buying "my home". )

I He gave i n c h i e f b e f o r e no o ther o ra l ev idence about the car . In her ev ldence

m e Mrs. Masters r a d i c a l l y d e p a r t e d from t h e i r

e a r l i e r a f f i d a v i t e v i d e n c e t h a t h e r husband paid the $1,229.36.

She now swore t h a t t h a t amount was pa id by her , by cheques

drawn on her account . Asked how moneys g o t i n t o t h a t a c c o u n t

s h e r e p l i e d ( t r a n s c r i p t 1 7 ) :

I

“Jly husband t:as che only one working. H e would b r i n g

home 111s money and I would p u t moneys i n t o t h a t cheque

accoulri f rum his wages to cover b i l l s and t h e car payments. A t t h a t p o i n t o f tjme of p u r c h a s e , t h a t

car was mine because he stlll had another vehickle I n t h e

bus iness . The t r a d e - i n was mine and the Falcon was

t o be mine. A t t h e t i m e t h e receiver t o o k t h e v e h i c l e

from	t h e b u s i n e s s ,	my	husband had no vehicle	so	i
ag reed he coa ld con t inue d r iv ing	my	car	and	make	the

repayments for the use of t h e c a r . ”

And la ter s h e s a i d ( t r a n s c r l p t 1 8 ) : i

”Q. I f it i s c o r r e c t , as yoa contend , tha t the

car be longs t o you , why d i d some o f t he funds

used t o pay Nu-Ford come from your husband’s

weekly pay envelope?

A. Because he had t o have a v e h l c l e t o go t o work

and as t h e car was mine I said, ‘You may u s e t h e

car b u t you may pay m e f o r t h e u s e of it’. I n

t h e e v e n t , I p u t the money which he paid me f o r

use of t h e v e h i c l e for use for the repayments“ .

Here a g a i n t h e e v i d e n c e d o e s n o t e s t a b l i s h t h e e x i s t e n c e

of an agreement t h a t t h e a p p l i c a n t s h o u l d b e t h e owner o f t h e

p r o p e r t y i n q u e s t i o n ; a n d a g a i n , i n my o p i n i o n , t h e r e is an

invent ion . I do n o t b e l i e v e t h e a p p l i c a n t ’ s o r a l e v l d e n c e as

t o the	payment	of	the	$1 ,229 .36 .	The	a p p l i c a t i o n	as	t o t h e	car
f a i l s .

I d i s m i s s t h e a p p l i c a t i o n , a n d s h a l l h e a r counse l on

t h e ques t ion o f costs.

b

..--	. I	rwvw:;:;	PO!:	~ - I I : L ~ : E N T
-.

I

l

i	l\	s e q u e s t r a t i o n	o r d c r	v7as	made	a g a i n s t t'nc .es'iaix	02
l

Ronald Janies Ihstcrs on 2 2 June 1 9 7 2 . T h i s a p p l i c n t i o n , irt.'.de oi,

7 J u l y 197'7 by h i s v-LEe Jeanettc €5argarct Plasters, seeks

d e c l a r a t i o n s t h a t t h e banlcrupL-. hold- in t r u s t f o r h i s wife

(a) h i s l e g a l i n t e r c s t i n the house and land know? 2s

9 Iblarden Street , George' S H a l l and

(b) h i s l c g a l i n t c rc s t i n a 1971 Fo rd l~a l con Sedan c x .

The 0 f f j . c i z I . kce ive r as trustee of thc 1~anl;rupt' S e s t a t e has

f i l e d a notice of opi3osit ion r4lich, a s axended by leave, oppose:

t h e mahtng of the decl .&ratSons soaght on t he grounds tha? nciki-

t he bankrup t ' S interest i n t h e h o u s e a n d l a n d nor h i s intcr.-cst

i n t h e car were	ever h e l d	in	t r u s t bp t he bankrup t	for	t h e
a p p l i c a n t .

Evidence vas given on ly by t he app l i can t and the

banlrrupt . The appl icant s!'ore t i ro e f f i d a v i t s , a n d t h e 1~23 '~1 -~~:2~

one, and both gave oral evidence. The story t ha t emerges frcz

a c o l l a t i o n of that evidence is as follows.

Mr. Hasters (who was t h e n a d i v o r c e e ) a n d t h e a p p l i c a n t

were marr ied on 31 blarch 1 9 6 7 . At a l l r e l e v a n t times from

about 19G5 unti1. his bankruptcy Mr. Xasters carr ied on business

as a who lesa l e r of l i g h t f i t t i n g s . He had an account

(No. 380466) w i t h t h e Commonvealt'n Txading Bank a t Bcverley Hi1

which I s h a l l c a l l h i s b u s i n e s s account. It had been openeci

w i t h an o v e r d r a f t of $4,000 guaranteed by two f r i e n d s . A t no

r e l e v a n t time has it ever been i n c r e d i t , a n d it has on most

occasj.ons been overdrawn by more t han $ 4 ,000.

Both be io rc and f o r a L i k a i t c r her marriage IWS.

Nastcrs was in crnpl.oyment as a r e s u l t of which she had saved

money t h a t she p u t i n t o v a r j o u s s a v i n g s a n d other bank accocnt!

j.n llcr 0 ~ 1 name. She says t l ~ a t i n October 19GG, bCiol:c: hp*-

n n r r ~ . a g c , h e r p a r e n t s l c n t h e r f u t u r e husbzlnd $ 4 ,003 for t h s

purpose of pzping bu;. iness debts ~ 4 n c h h e owed. I s h a l l

r e t u r n t o t h i s matter.

I

Mr. and Mrs. llasters begm their marr ied l i f c by l i v i n

!

w i t h a sister o f h i s , b u t dec ided t o l o o k f o r a block of l a n d

on which they could bu i ld a house of t h e i r own.

A t a b o u t t h i s s t a g e , it is sa id , khey came t o an

agreement between themselves. NK- Wasters needed for t h e

I

purposes of h i s b u s i n e s s a n y money t h a t he had. His wife had

some savings and a job. She would be provj.ding a t least a s

much as she could of t h e f inance f o r buy ing t he l and and

bu i ld i i l g t he house . She s ays ( t r ansc r ip r 1 5 / 1 6 ) t h a t , becnuse

her husband had prev ious ly been marr ied and d ivorced and

." although it is n o t a n i c e t h i n g t o t a l k a b o u t it, it can alwa.

happen aga in" , t hey ag reed t ha t t he re fo re t he l and and house

would belong t o h e r t h o u g h , i n o r d e r t o ob ta in bank f i nance ,

I t i t l e would l ~ e r e g i s t e r e d i n t h e i r j o i n t names. The evidence

i 1 , of M r . blasters d i d n o t a p p r e c i a b l y s u p p o r t h i s wife's on t h i s

i I mattcr, and he e x p l a i n e d t h e j o i n t r e g i s t r a t i o n m e r e l y as b e i n $

"gene ra l p rocedure w i th a husband and wife" ( t r a n s c r i p t 381,

They d i d n o t m e n t i o n t h a t a g r e e m e n t t o t h e so l ic i tor who

a c t e d for them &n, as will appear , they bought some l a n d , or

to t h e bank when o b t a i n i n g a b u i l d i n g loan , o r t o t h e r e l e v a n t

a u t h o r i t y when	seek ing a	home	g r a n t from t h e Comnonwealth,	o r
t o anyone	i n an	o f f i c i a l c a p a c i t y u n t i l	a f t e r	t h e h u s b a n d ' s

b a n k r u p t c y ( t r a n s c r i p t 4 3 ) .

Mrs. tlastcrs s a y s t h a t it was a l s o ( b u t l a te r ) agreed

t h a t as the p roper ty would be long t o he r a lone , he r husband

would have t o pay he r rent, from whj ch she i n turn would nlake

repayments for	moncy	borrowcd	from	the	bank,	and payments	of
c o u n c i l	rates	and water	r a t e s ,	"so	t h a t t h e h o u s e	j s	still

( t r a n s c r i p t $ 2 ) -

Thcy scz.rcheu f o r land , and saw bloclcs cos.cing 11p t o

$10,000. 01'1 26 Octol,c~- 1367 W::. !<asters drew $1,500 - from one

of hcr savulgs accounts and pa id il; i n t o h e r h u s b a n d ' s busllless

account ,	so t1la.l:	i f t h e y f o u n d	a	suita1,l.e	+>lock he	woldd be
able t o hand over a cheque	fo r	a	d e p o s i t	w i t h o u t	d e l a y .	Then

they round, and decided to buy, t h e s u b j e c t Land a t 9 Marden

Street , Georcje's Hall , i3r $3,800. Xr. Masters p a i d the

d e p o s i t of $350 by chequc drawl on h i s business account .	11s	an
his vxfe 1123 opened with t!?c Coz~a3!w.:sal.th Tca3.111~ fianl; G'C

Beverley Rills an accoun t ( " the l and pu rchase account")

(No. 300642) i n t h e i r j o i n t names. There were b u t f o u r s m s of

money e v e r d e p o s i t e d in tha t accoun t . Apparen t ly it m 5

opened with a d c p s i t by Krs. Ilasters on about 15 Iiarch 1 9 6 8

of $33G drawn frox one of h e r oxn accounts . On ebout 18 i.iz~-ch

1960 she depos i t ed i n t he Land purchase account S1,lCO drawn

I --

from another of her accounts and hcr husband depos i ted 111 it

$200 drawn from h i s b u s i n e s s a c c o u n t . fi cheque fo r $3,432.37

was drawn on the l and purchase account on 3 Hay 1968 t o pay

for t h e b d a n c e &E the moneys payab le on t he pu rchase of t h e la:

The drawing of t h a t cheque put ' ihc account in d e b i t , a n d i t so

remained u n t i l t h e d e b i t b a l a n c e was reduced to n i l by payment

i n t o it o f t h e f o u r t h d e p o s i t , a cheque for $1 ,940 .47 d ram by

Mr. ]<asters on h i s b u s i n e s s a c c o u n t o n 1 9 blay 1 9 6 9 .

Mrs. ltastcrs s a y s t h a t s h e c o n t r i b u t e d t o t h e p u r c h a s e

of t h e land t h e fol.low.ing amounts nlcntioned above:

$1,500

336

$2,936

Shc c L ~ ; o says tht t he t o k l cost: of Lh? ~ ~ l ~ l c l , . ~ : l c l ~ l c ~ ~ ~ ~ . ; >r,i-p:*L :

-- _ -

and 13mk ch :~~-ges d>b i t cd t o thc 1 anci purchase account, wzs

I $3,956.47, and t l m t the d iELerencc of $1.,020.4 7 fJetv;ec!l C!;zt

amount 2nd $2,93G was also coatr ibuL-ed by her, as it came

from thc $ 4 ,000 v h i c h h e r ~x ren t s had lent her husbaad aad ~ h l :

h e r h u s b m d , s h c says, was bound t o pay to he r . The l e g a l

costs and d i sbu rccxen t s anci stamp duty were p a i d by h e r huci,a~:c

o u t of h i s bus iness accoun t . The re i s no evidence as t o

the amounts covered by lnoney provided by h e r . of t h o s e c h a r g e s , b u t birs. 14astcrs s a y s t h c y were

The n e x t e v e n t was that on 1 9 Dccember 196s the

Colmon!;calth Trzding Eanl; a 2 &vcr ley Hills announced LCS

approval of a l o a n (No. SN/2-057G21-05) of $8,000 t o h l l p v i t h

the b u i l d i n g of t h e h o u s e t h a t now s t a n d s a t 9 l h r d e n S t r ee t .

The c o n t r a c t price t h a t had been obtained for the hui l i l lac_l was

$9,236,	so t h e d i f f e r e n c e	of	$1,23G	had	t o be prow-dcd.	on
--

31 March 1 9 6 9 t h a t amount !:as paid t o t h e credit of 10,n p ? ~ .

I

SN/2-057621-05. It had been drawn from a j o i n t home sav ings

account (No. 20222) x?hich 13r. and r I r s . blasters had opened v;i:h

..

the Colraonwealth Trading Bank \:it11 t h e object, which they d id

not	ach ieve ,	of	o b t a i n i n g	a	hone gran t	f rom the	Conmon!:c>it!>
..

Government. It h'ad b e e n p a i d i n t o t h a t a c c o u n t by Nrs. Masters

I

a n d r e p r c s e n t e d p a r t of h e r p e r s o n a l s a v i n g s . Her husbnnd did

n o t ever c o n t r i b u t c a n y t h i n y t o the horne sav ings account KO.

i 20222, and she therefore cl.aims t h a t s h e contrj.buted a f u r t h e r

l $1,236 t o the l>u i ld ing of the house.

The housc was b u i l t , and t h e bank pa id t he $8,000

towards its cost . That loan of $S,OOO now hail t o he r e p J l d wit

in t c rc s t . The arrailgement with the I~ank was t h a t the I>ank v o u l C

automnt j ca l ly d raw from t11c husband ' S hus iness accoun t each

I month the amount of the month ly ins ta lment of p r i n c i p a l a n d

j n t c r s z t . I111til Octobcr 1 9 7 4 Lkat alnoun:: vas $ 5 6 and

t11crcaLt~r i t became $ 6 4 . T'o cover such dravrj.ngs, t k r c ~ , Y . : ~ ~

p a i d into thc husba1d's b,usine:-c accounk on 8 F c b x s r y 1 9 T d

an axount o f	y700 ?.raw1 by	1.il-s. ikstcrs	from	one of	h e r psr so;:%
-

accounts ,	and on 12	Play	l 9 7 0 an amount of	$550 drawn	from	t h e
-

j o i n t home savings account 1'10. 20222, be ing the ba lance thcn

remaining ~n a c c o u n t . t h a t . .

D

T'hat arrangement with the bank cont inued "13 t o t h e

time of the husband's banl;r'q~:-.cy on 22 June 1972 . The rea f t e r :

monthly payments have been made t o t h c bank i n cash by

Mrs. Nasters, w i t h money g iven he r by her husband from h i s

e a r n i n g s .

The flrst q u e s t i o n f o r d e c i s i o n i s w h e t h e r t h e

a p p l l c a n t is s o l e l y e n t i t l e d , to the e x c l u s i o n of her husband,

t o t h e land and house of which t h e two of them are req is ' i e rzd

as ' p r o p r i e t o r s . Prom the fact t h a t t h e y a r e so r e g i s t e r e d

t h e r e f l o m a presumption of co-ownership, and the burden of

r e l x l t t i n g t h a t p r e s u m p t i o n l i e s on t h e a p p l i c a n t . In my

o p i n i o n s h e h a s f a i l e d t o d i s c h a r g e t h a t b u r d e n .

Her case d e p e n d s e n t i r e l y o n t h e e v i d e n c e of her h ;~sban

and	l ~ e r s e l f ,	which is independent ly	suppor ted	on ly as t o some
i n c i d e n t a l nat'iCqs,	such	as	t h e movements	i n bank accounts .

I was n o t impressed by t h a t e v i d e n c e . I n h e r a f f i d a v i t of

15 Sep tember 1977 t he app l i can t ' s claim was cast d i f f e r e n t l y

from t h e m y in ~ 7 h i c h it was cas t i n h e r a f f i d a v i t of 2 2 June.

The c o n t r i b u t i o n s said to havc been made b y h e r t o t a l $ 3 , 4 2 2

i n t h e e a r l i e r a f f i d a v i t a n d $ 1 3 , 1 9 2 . 4 7 i n t h e l a te r . The

const i tuc-nt amounts of $l.,SOO, $>3G, $1,100 and $1,236 a r e

colnmon t o b o t h ; ],ut the car l icr amount of $ 4 ,000 r c p r e s e n t i n q

l

t h e l o a n f r o m t h e p z r c n t s I>ecomcs $1,020.47 i n t h e l a t c r

a f f i d a v i t , a n d t h e two sums of $700 and $550 i n t h e e a r l i e r

e

-G-

a p p c n r t o he abso1:L~4 i n tllc k o h l of $ 3 ,000 ~ O J - i l l 2 I x t ~ ? . , . lmr!-,

i n the 1-atcr.

'rhc a p p l i c z n t a n d her husband (who c lear ly had an

intereslr . in suppor t iny her ev idence) r e r e not convinc inq

witnesses. I n my v i e v Pfrs. h1a;cters was better aware than 112r

husband that it might be sugges ted that the amounts she paid

. .

i n t o his business account were i n f a c t so pa id for t h e purposes .

of t h e business, and t h e r e was a c c o r d m g l y some discrepa:>cy

between	ccr ta in	a n s w e r s	t h a t	t h e y	gave.	Each was asked
whether,	when	t h c $1,500	was	t r a n s E e r r e d by	h e r	t o h e r hush -~n? '

business	a c c o u n t ,	t h a t	a c c o u n t	vas	o v e r d r a m .	Shc	s a i 5 chc
d i d	no t	know	-	"I have no knoxledge and nothing to	do	with	ny

husband ' s bus iness account . . . . I never knew a n y t h i ~ g a b o u t t:

c o n d i t i o n o f h i s	account	o r a n y t h i n g	t o	do	w i t h t h e	busi::ess	or
any o the r ovcrdrasn a t t h a t t h e :	matter	( t r a n s c r i p t 2 0 ) .	I ie	s a i d	h i s	a c c o u n t	wrls

it was a l v a y s o v e r d r a m an6 h i s .,.ice

knew about it ( t r a n s c r i p t 3 9 ) .

I have come t o t h e c o n c l u s i o n t h a t t h e e v i d e n c e that.

t h e r e was an a g r e e x e n t t h a t t h e hus1;and should pay r e n t is n o t

t r u e . I t h i n k it was an i n v e n t i o n ( l a t e r i n o r i g i n than 'ihe

a f f i d a v i t of 22 dune 1977, i n which it i s not ment ioned)

des.igned to dea l w i th t he p rob lem of t h e payments, a f t e r -,he

husband became bankrupt , of instal lnents due under the nzr tgage.

It was so poo~:l.y f i x e d i n t h e a p p l i c a n t ' s ~ n i n d tha t i n h?r

o ra l cv idence , bo th vhen examined in ch ie f by her own c c u n s e l

l ( t r a n s c r i p t 15/1G-17) and when cross-examined by counse l fo r

the O f f i c i a l Iiecciver ( t r a n s c r i p t 35-36) as to t h e payrs;lts

she made after her husband ' S bankruptcy , her i i r s t thoug:-.t

on each occas ion was t o s a y t h a t they wcre made o u t of ; w e y s

he p a i d h e r i n d i s c h a r g e of an o h l i y a t i o n , and it: was o n l y

a f t e r p r o ~ n p t i n g t ha t she spoke of a n aqrecment to pay rc-4;.

-

- -f -

.l

e

a I I e r husband spcn1c.d si.~!~i.l.arlv confused ( t r a n s c r i p t 4 1 - 4 2 ) . 11:

/- _ -

is i n h c ~ - c ~ l z l y 3 ~ 1 l > ~ o b < j b i e t h a t s u c h m agree~lcr~ t vas lnadc>, 2nd

1 dv not a c c e p t t1,c evJ.?c.nce t h z t i t was'.

I The u n r e l i e b i l i t y oC thc witnesses as t o t h a t nwttcr

col ours the v:hole or' t l i e i r e v i d e n c e and I do n o t a c c e p t t h e i r

s t o r y a s t o the ag r semcn t about ox:ler.-ship. The appl icani -

purpor ted t o have a p r e c i s e r e c o l l e c t i o n of the r e l evan t - ccnve r

-

s a t i o n , b u t h e r n n n o r y was vague as t o o t h e r d c m i l s , a n d ;he

suppor t g iven t o h e r e v i d e n c e by her husl~ancl vlas n e g l i g i b l e .

I n my	op in ion t he ev idence	on	t h i s matter	f a i l s	t o i n d i c d t e	a
t r u s t .

Then i t was s u b m i t t e d t h a t a t r u s t a r o s e fron +!?c f x t

t h a t the a p p l i c a n t p a i d the whole of the pu rchase money f o r

l a n d 2nd house. B u t t h a t fac t i s n o t e s t a b l i s h e d b y t h e

evidence.

It i s n e c e s s a r y n o x t o r e t u r n t o t h e subjec t of the lozi

of	$4,000 s a i d t o havc	been	mde t o I l r .	Kastcl-s	by	the	p,,s~-enr;s
of h i s fiancee (as she	t hen	was	)	i n	1 9 6 6 .	The s m of	$4,000

was lodged t o the c r e d i t of h i s b u s i n e s s a c c o u n t c n 1 7 October

1 9 6 6 . Mrs. 1 . l a s t e r s s a i d i n h e r a f f i d a v i t of 22 June 1 9 7 7

that t he pu rpose of t h e l o a n vas t o e n a b l e her husband to pay

o u t s t a n d i n g d e b t s . I n h e r oral e v i d e n c e i n c h i e f s h e s a i d t h a t

" the $4 ,000 which they had or iq ina l1 .y l en t t o my husband vas

e v e n t u a l l y r e p a i d by t h e bzd debtor he had" ; and , having r e f e r r r

t o the sum of $1,020.47 ment joned above, sa id that the balance

($2 ,979 .53 bu t r e f e r r ed t o a:; $2,980) "was to be used t o

cont inuc paying off t h e l o a n and a t the t ine of my husband

becoming bankrupt tha t amount was stil.1. owing t o me I ~ c c z u s e my

pa ren t s had Q ivcn me Chat mondy as a g i f t . " , The "loan" t h e r e

mentioned was c l e a r l y t h e Imnlc loar: of $0,000, bccause shc t h c a

s a i d t h a t	thc	amount	of	$2,900	"was used - towards	the house,
tovzrcis	the ~mr tyaqc !	r c p c ~ y ~ ~ n i s " .	O f t l ~ t	~UTLOZII	t	she zai t l

$CO9 was 1xIci i-nho the ~ o i n t ho;uc savimqs account and :he

remail?ing $?,S71 was used "as repay~nents on the house r~ortcgrq~e'

In c ross -examinat ion 14rs. Masters s a i d (transcript 2 9 ) ,

of " t h e $4,000 in:{ parents hacl l e n t my husband i n 19EG",

" t h a t money was f lowing back i n from h i s b a d d e b t o r a ~ d ,

Ix~owing j t 'was Flowil?y back i n , r&'approaclled n y

p a r e n t s t o uc.e t h i s mmey for t he pu rchase of a home,

t o which they agreed. Nsne of t h a t money was e v e r

L-epajd t o my p a r e n t s and t h i s i s why: t h e y hac? g5:ren

my ln-o t l~er a sum of money and h? was l ~ u y i n g a house

and they dccidod t h a t r a c h c r t h a n t r y t o ge r u s t o

repay that $4,000 t h e y :v.oulc! g i v e i t t o m e a s a

s t ra ig! I t o u t y j f t l ike they gave m y b r o t h e r and I

d i d n o t owe them m y molx t h a n t h a t $4,000. i t v-as

a n o u t r i q h t c:j Zt t o xe" .

She also gave t h e f o l l o w i n g e v i d e n c e ( t r a n s c r i p t 31/33) :

"Q. A r e you a b l e t o say whe the r your husband i n f ac t

p a i d the	sum of	$4,000 t o y o u p a r e n t s after
t h a t l o m ?	was	made?

A. My paren t s have nc17er r e c e j v e d a n y o f t h a t $ 4 ,003

back. Thls is vhy I h a v e s i n c c sa id t o you t133t

t hey have given m e that n:oncy, because t h e r e V ; ~ S

l i t t l e li;:el~.hood of t hex ever g e t t l l ? g (?z;ch~;!q)

I

back Under the c i rcumstances	w h i c h	h a v e a r i s e n
s i n c e t h e y	made	t h a t l o a n .

Q. Did t h e y p h y s i c a l l y give you $ 4 ,OOO?

A.	They	t r a n s f e r r e d	t h e	zmount d i r e c t l y	i n t o O c t o b e r	my
husband ' s	bus iness	accoun t	a t	t h e	time	t h a t t h e y

gave me	the loan.	Thai: was I b e l i e v e	i n
1 9 6 6 . ' '

U

It vi11 be observ'ed t h a t Mrs. IIasters i s t h e r e r e p o r t e d a s

spcaking of	t h e $4 ,000 as be ing a	l o a n made	t o h e r ,	not	t o
14r. Ihsters. I think	however	that h e r	w o r d s	a c t u a l l y	were

". . . a t t h e time they gave _. him t h e l o a n " . No submission t7as

Imsed on her having said o t h e m i s e , a n d I t h i n k t h e t ~ a n s c r i p t

h e r e i s i n error.

I h a v e r e f e r r e d above t o ' t h e deb i t ba l ance of t h e l a n d

purchase account be ing reduced to n i l on 1 9 Nay 1SG9 by t h e

d e p o s i t of a cheque for $1,940.47 drawn by 14r. Karjters on h i s

bus iness account . In cross-examinat j on I W ~ . Masters W ~ S asked

c

The a p p l i c a n t c l a i m s t h a t s h e provldecl :

( a )	moneys	p a i d in to her husbzind‘s	business
account :

1,500

700 ( a p p l i e d i n mortgage repayments)

I I I , I, )2,75C

550 ( ”

(b) moncys p a i d in to the land purchase account :

336

!	1,100	1 , 4 3 t .
1 .

(c)	moneys p a i d i n t o	the home savings account	-	1,23C
5,422

.--

t o pay h e r r e n t (or scme p a y l m l t i n t h e n a t u r e of r e n t ) , o r

because he o1.oed money to h e r , o r by way oE g i f t . There is 110

evidcnce of q i f t . I have s a i d t h a t I do n o t accepi: t h z t

t h e r e '.:as any such ay:co;r[-lnt t o p-;;' r c n t , o r t h z t I A C k:,. b:-:,<

owed a n y t h i n g i n r e s p e c t of t h e $4,000 l e n t by t h e a p p l i c a , ] t ' S

p a r e n t s . On t h e e v i d e n c e t h e r e i s no way i n which her husband

could be said t o have owed fl?e a p p l i c a n t money o the rwise t hzn

by having fa i led t o account for t h e t o t a l of $2,750 pa l6 by Per

i n t o h i s b u s i n e s s a c c o u n t . The a p p l i c a n t has ~ o prove:! t1w.t t

he d i d h i s b u s i n e s s a c c o u n t : so f a i l , s i n c e h e p a i d t h e f o l l o x i n g arnounts o u t o f

l a n d (1) o n d e p o s i t 380.00

( 2 ) pa id i n to l and pu rchase accoun t 200 .00

,I I, I,

(3) " .. " 1 , 9 4 0 . 4 7

2,520.47

(4) t h e u n p r o v e d t o t a l of t h e legal c o s t s and

d ~ s b u r s c m e n t s a n d staxp duty on t h e pu~-chasc

of t h e l a n d .

(5) $56 .00 a month u n t i l t h e l ~ a n k r u o t c v ( t o w a r d s

t h e t o t a l of ~ ~ h i c h t h e applican; provlded

$700 f- $550 = $1,250).

I = t h c r e f o r e d i s ~ n i s s t h e a p p l i c a t i o n ds f a r as it

concerns the bankrup t ' S i n t e r & t i n t h e l a n d a n d h o u s c .

The car t o v h i c h t h e a p p l i c a t i o n s c c o ~ ~ c l l y refers was

b o u g h t 011 h i r e p u r c h a s c . It c o s t a t o t a l of $3,237. In licr

it in	th::	11a1aes of her husbclnci ani 11a-se.l E.	S I C also st,.i Li X I
e:'rcct	' i i ~ i ~ t	$2 ,007 .GJ	v7as p a d Ly her as Z~llov.;: .

1.     Depos 1.t

(a) Alloweci on L?-a3e-j.n of a car

or?nad by her 637

(b) Prom h e r snaings fro!^^ wages 500

Prom	her	chcque	account	.-.	l00 GO0 1,237
- -_

2 .	_-_-	Repawncnts
(c) From moneys paid weckly to

her by hcr husbanci in

rcpaynent of a loan 210

(d)	Prom money s!le earned 517 sewing	2 0 3
( e )	Fro21 savincjs of !~ouscl;enping

money from husbmci 360.64 771

_.-

2 ,007

Further, she s a i d that " t h e b a l a r c e of the repayments oil the

v e h i c l e in t h e sum of $1,223.36 was paid by !ny husband". Tn

his af€j.Gzvit of 2 2 J u n e 1 9 7 7 1.Y. I l a s t e r s s a i d "I say t h a t the

only payn:ents m d e by me in r e s p e c t of the (car ) have I ~ e n

repaymefits t o t a l l i n g $ 1 , 2 2 9 . 3 6 out of the total c o s t s o€ t h e

l	v e h i c l e	of	$3,235".
In	cvidence before me TIT. ) ; a s t e r s s a i d ( t r a n s c r i p t )

44-45) t h a t it 'was h e a lone 17110 e n t e r e d i n t o t h e h i r e p u r c h a s e

agreement:	his	wi fe was	n o t	a	p a r t y t o it.	( I n c i d c n t a l l y ,
h i s a p p l i c a t i o n	forln	s t a t e d t h a t h c	was	buying	"my	home". )

He gave no o t h e r oral e v i d e ~ ~ c e about t h e c a r . I n h e r evtdcncc

: l in ch ie f be fo re me Mrs. I4as t e r s r ad ica l ly depa r t ed from t h e i r

e a r l i e r aKfidaL6.t ev idence tha t her husband pa id the $1 ,229 .36

She no!; ivorc that t h a t amount was paid by her, by cheques

drawn on he r accoun t . Rslced 110x7 moneys got i n t o t h a t Z C C O U n t

'she r e p l i e d ( t r a n s c r i p t 1.7) :

0 . -.I/_ -

Here again the ev idencc? does no t e s t ab l i sh t he ex i s t encc

of an a g r e e x e n t t h a t the a p p l i c a n t s h o u l d be the 0::ner of thc

property i n q u e s t i o n ; a n d a g a i n , i n my oTu?ion , them is an

inven t ion . I do not hclievc the api j l j can t ' s o r a l e3;idencc as

t o the papmznt	of	t h e $ 1 , 2 2 9 . 36.	The	a p p l i c a t i o n as to t h c czr
f a i l s .

I d i s x i s s t h e a p p l i c e t i o n , a n d s h a l l h e a r c o u n s e l on

t he question of c o s t s .

..