Jabara & Gaber
[2022] FedCFamC2F 1527
Federal Circuit and Family Court of Australia
(DIVISION 2)
Jabara & Gaber [2022] FedCFamC2F 1527
File number(s): PAC 106 of 2019 Judgment of: JUDGE STREET Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – Property- resulting trust- presumption of advancement rebutted- declaration of resulting trust Legislation: Family Law Act 1975 (Cth) s 79 Cases cited: Napier v Public Trustee (WA) (1980) 32 ALR 133 at 158
Calverley v Green (1984) 155 242 at 266-267
Brown v Brown (1993) 31 NSWLR 582 at 588(c)-589(e)
Division: Division 2 Family Law Number of paragraphs: 17 Date of hearing: 2 November 2022 Place: Parramatta Counsel for the Applicant: Mr D Eardley Solicitor for the Applicant: Moscardo Lawyers & Associates Counsel for the First Respondent: Mr T Iuliano Solicitor for the First Respondent: Hills Family Lawyers Counsel for the Second Respondent: Mr D Eardley Solicitor for the Second Respondent: Moscardo Lawyers & Associates ORDERS
PAC 106 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GABER
Applicant
AND: MS JABARA
First Respondent
MS CASTELLA
Second Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
2 NOVEMBER 2022
THE COURT DECLARES THAT:
1.Mr Gaber holds the property B Street, Suburb C Folio: … on resulting trust for Ms Castella.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jabara & Gaber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
This matter was fixed for a property hearing on 2 November 2022 having been the subject of the commencement of s 79 of the Family Law Act 1975 (Cth) proceedings on 11 January 2019. The applicant father joined his wife as first respondent and his mother as second respondent. On 9 December 2021, the second respondent filed an application seeking a declaration that the applicant held a property being B Street, Suburb C, New South Wales, in folio …, identifier … (the Property) on trust for the second respondent.
The Court was informed that the parties have otherwise agreed upon orders that would resolve the property dispute between the parties and would facilitate a proposed financial maintenance agreement on each of the proposed orders. The Court has not seen those documents. However, the Court was informed that there was no opposition to determination of the issue of the relevant property being held on trust. The parties agreed upon the Court treating the affidavits filed as being in evidence before the Court on the limited issue and the parties indicated no wish for any cross examination.
Mr Iuliano, on behalf of the first respondent, identified that he went a bit further than the proposition advanced of no opposition to the trust issue and put submissions that the making of a will by the applicant in 2001 should be regarded by the Court as consistent with the property in fact being beneficially owned by the applicant. Additionally, Mr Iuliano on behalf of the first respondent, suggested that the evidence in relation to the source of the funds, to the extent accepted without contest as coming from the second respondent, was not one where the presumption of advancement had been rebutted.
The second respondent identified, in her affidavit dated 21 August 2020, that she has six children and that the applicant is the oldest. The second respondent deposed to the following::
1. I am the owner of the property at [B(2) Street, Suburb C]. I purchased that property in 1999. Annexed hereto and marked "-1" is a copy of a title search for that property.
2. In 2001 I became aware of my neighbour at [B Street, Suburb C] listing his home for sale for $255,000. Annexed hereto and marked "-2" is a copy of a title search for that property.
3. I was interested in acquiring the property. Ultimately I bought the property for the full purchase price. I used the monies I had inherited from my· late parents to pay for that property. Annexed hereto and marked "-3" is a copy of the overseas transfer of 87,000 Pounds Sterling used by me to purchase the property.
4. I am the mother of [Mr Gaber]. I have five other adult children. [Mr Gaber] is my oldest son.
5. At the time I bought the property at [B Street, Suburb C], [Mr Gaber] had a permanent resident visa to live in Australia but had not yet acquired his Australian citizenship. Both he and his wife [Ms Jabara] travelled between [Country D] and Australia for the purpose of their children being born in Australia.
6. My husband, [Mr K] passed away in Australia in 2000.
7. When I purchased the property at [B Street, Suburb C] I did not have any knowledge of trusts. I wanted to put the property in [Mr Gaber]'s name in the hope that it would assist him in being able to gain his Australian citizenship. I asked Mr Gaber to ensure that he made a Will that provided for the property at [B Street, Suburb C] to pass to [Mr Gaber]'s estate and to [Mr Gaber]'s five siblings in equal shares in case something happened to me. [Mr Gaber] provided me with a copy of the Will he made with [L Law Firm] solicitors dated [2001]. A copy of that Will is annexed and marked "-4".
The full purchase price for the property at B Street, Suburb C was paid by me. I also paid the stamp duty and other costs associated with the purchase. I have always paid the Council Rates and Insurance Premiums for B(2) Street, Suburb C and for B Street, Suburb C since I purchased those properties. The applicant identified that he had a permanent resident visa but had not yet acquired Australian citizenship. The second respondent deposed to the fact that she bought the property at B Street, Suburb C, at a time that she did not have any knowledge of trusts but the second respondent identified that she wanted to put the property in the applicant’s name, quote, “in the hope that it would assist him in being able to gain his Australian citizenship. This was a limited and confined purpose in terms of transfer of beneficial interest and reflected a name only transfer. The second respondent deposed to the fact that she asked the applicant to ensure that he made a will that provided for the property to pass to the applicant’s estate and to the applicant’s five siblings in equal shares in case something happened to the second respondent. The second respondent identified that she paid the full purchase price for the property and paid the stamp duty and associated costs and has always paid the council rates, insurance premiums since she purchased the property.
As indicated above there was no cross-examination sought in respect of the witnesses. It is apparent that the Land Title Register records the applicant as being the owner of a property in the first schedule. There is an unchallenged note in relation to the remittance of funds in respect of a purchase dated 2001. There is also in evidence a will, dated 2001, by the applicant that relevantly purports to record a gift in a following language:
I give the real estate property known as [B Street, Suburb C], NSW to the following persons as tenants in common in equal one-sixth shares:
My sister, [Ms M],
My sister [Ms N],
My sister [Ms O],
My sister [Ms P],
My brother [Mr Q],
My wife [Ms Jabara].
This property is given to the aforementioned in recognition of fact that all moneys for the purchase of the said property were supplied by my mother and which moneys were to be given to all my sisters and brothers as part of their inheritance.
That Will did not accord precisely with the express and confined purpose specified by the second respondent, but is corroborative of an intention at the time of acquisition by the second respondent other than to transfer full beneficial title to the applicant. The contemporaneous expressed intention and purpose of the second respondent did not included the wife referred to in the Will. Further the Will corroborates the existence of the intention by the second respondent at the time of transfer other than supportive of the presumption of advancement. A further affidavit of the second respondent, dated 9 December 2021, identified that the property had never been rented and is being occupied by different family members over different time periods.
The applicant’s affidavit, dated 12 May 2021, identified that he was the registerer proprietor and did not contribute any money to the purchase of the property and that the purchase price as well as stamp duty was paid by the second respondent and relevantly said :
13. I am the registered proprietor of the property at [B Street, Suburb C]. I did not contribute any money to the purchase of that property. The purchase price and stamp duty was paid by my mother, [Ms Castella]. My mother has sworn an affidavit setting out the circumstances of her paying for that property and I rely upon her evidence. I consider that I hold that property for my mother who has stated that she intends the property to ultimately pass in equal shares to her 6 children - one of whom is me. As requested by my mother I made a Will dated [2001] in which I leave the property in equal shares to my 5 siblings and to [Ms Jabara] in equal shares.
In the affidavit dated 12 May 2021, the applicant deposes to the fact that the second respondent’s affidavit sets out the circumstances as to the acquisition of that property and the applicant relies on her evidence. The applicant asserted that he considered that he holds the property for his mother who has stated that she intends the property ultimately to pass in equal shares to her six children, one of whom is the applicant.
The applicant identified that as requested by his mother he made a Will dated 2001 in which he left the property in equal shares to his five siblings and to, his wife, Ms Jabara in equal shares.
There was no dispute as to the legal principles as identified in the submissions of Mr Eardley of Counsel on behalf of the applicant and second respondent and that there is a presumption in the present case that the transferee, being the applicant, holds the property on trust consistent with the decision in Napier v Public Trustee (WA) (1980) 32 ALR 133 at 158.
The law with respect to resulting trusts is not in doubt. Where property is transferred by one person into the name of another without consideration, and where a purchaser pays the vendor and directs him to transfer the property into the name of another person without consideration passing from that person, there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the case may be. This proposition is subject to the exception that in the case of transfers to a wife or a child (including someone with respect to whom the transferor or purchaser stands in loco parentis) there is a presumption of advancement so that the beneficial as well as the legal interest will pass. Each of the presumptions may be rebutted with evidence.
The Court was also taken to the observations by the learned Deane J in Calverley v Green (1984) 155 242 at 266-267 relevantly as follows
The relevant presumptions are, however, too well entrenched as "land-marks" in the law of property (per Eyre L.C.B., Dyer v. Dyer (1788) 2 Cox 92, at p 93 [1788] EWHC J8; (30 ER 42, at p 43) to be simply discarded by judicial decision. Indeed, the law embodying them has been said in this Court to be so clear that it "can ... no longer be the subject of argument" (per Dixon C.J., McTiernan, Williams, Fullagar and Taylor JJ., Charles Marshall Pty. Ltd. v. Grimsley, at p 364). If they are to be modified to avoid prima facie assumptions that a person intends the opposite to that which he does, it must be by legislative intervention which will not disturb past transactions which may conceivably have been structured by reference to them. The present case was resolved in the courts below by reference to one or other of those presumptions as a starting point. It must be so resolved in this Court.
There are three presumptions of equity which are here relevant. The first is that which was applied by Rath J. at first instance in this case but was held by the Court of Appeal to be irrelevant upon a proper appreciation of the facts. Worded in terms that are appropriate for present purposes, it is: where a person pays the purchase price of property and causes it to be transferred to another or to another and himself jointly, the property is presumed to be held by the transferee or transferees upon trust for the person who provided the purchase money. The second can properly be seen as complementary of the first. It is: where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it. (emphasis added).
The principles were also identified relevantly by Gleeson CJ of the Supreme Court of New South Wales as he then was in Brown v Brown (1993) 31 NSWLR 582 at 588(c)-589(e).
The equitable presumption can be rebutted or qualified in a given case by
evidence of a contrary intention common to the contributors of the purchase price
(Calverley v Green, per Mason and Brennan JJ at 261).
The only issue in the present case is whether the presumption of advancement is rebutted. The unchallenged evidence of the second respondent is that she was placing the property into the name of the applicant, not that she was giving the property to the applicant or that she was intending to transfer the whole of the beneficial interest in the property to the applicant. The reference to advancing the applicant’s application for citizenship is not one inconsistent with the applicant holding the property on trust for the second respondent in accordance with a resulting trust.
Further, in the present case, the second respondent had lost her husband and it is apparent that the property was the subject of communications prior to its acquisition to the effect of an expressed intention by the second respondent that it was to be held by the applicant subject to conditions concerning inheritance by the applicant and his siblings equally. The identified conditions, limited purpose and reference only to name, reflect an intention of the second respondent not to confer full beneficial interest on the applicant and are in the present case sufficient to rebut the presumption of advancement as between the second respondent mother and applicant child.
When the evidence is taken as a whole, in that regard, it is apparent that the second respondent did not intend the applicant to hold the property other than in name. The whole of the source of funds came from the second respondent in the acquisition of the property and the differing family members occupying the property are consistent with the property in fact being that of the second respondent. The meeting of the outgoings by the second respondent is consistent with the existence of that resulting trust.
The argument that the 2001 will should be treated as evidencing a beneficial interest of the whole estate being held by the applicant is unpersuasive. The Will is not the act or accurate expressed intent of the second respondent. The Will is entirely consistent with the second respondent having made clear the intention that the property was not being transferred beneficially to the applicant and the steps taken in creating the Will purportedly consistent with the requirement of conditions imposed by the second respondent reflects, in this case, a rebuttal of the presumption of advancement. The Court made the declaration on 2 November 2022 and reserved its reason. Is for these reasons that the Court made the declaration in favour of the second respondent in the present case.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 11 November 2022
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