Kalam v Kalam

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 05981

JAWAD KALAM

Plaintiff

AKHTAR KALAM

SHAMSHA KALAM

THE REGISTRAR OF TITLES

First Defendant

Second Defendant

Third Defendant

-and-

AKHTAR KALAM

SHAMSHA KALAM

JAWAD KALAM

THE REGISTRAR OF TITLES

Plaintiff by First Counterclaim

Plaintiff by Second Counterclaim

First Defendant to First and Second Counterclaims

Second Defendant to First and Second Counterclaims

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:	RUSH J
WHERE HELD:	Melbourne
DATES OF HEARING:	18, 19, 20, 23 and 24 June 2014
DATE OF JUDGMENT:	4 March 2015
CASE MAY BE CITED AS:	Kalam v Kalam & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 72

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TRUSTS – Transfer of funds by plaintiff to first defendant contributing towards purchase of a residential property – Nature of plaintiff’s interest in the property – First defendant and second defendant registered on title – Plaintiff not registered on title – Whether transfer of funds operated as a gift, a loan or a payment of money to be held on trust to acquire a joint interest in the property – Whether the funds were repaid – Whether the plaintiff’s interest in the property was held on a resulting or constructive trust – Plaintiff holds a 50% interest in the property as a tenant in common – Plaintiff’s interest held on resulting trust by the first defendant and the second defendant – Calverley v Green (1984) 155 CLR 242 – Ong & Anor v Lottwo Pty Ltd (in liq) (2013) 304 ALR 651 – Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 – Delehunt v Carmody (1986) 161 CLR 464.

REAL PROPERTY – Plaintiff and first defendant registered as joint proprietors of subsequent property – Nature of plaintiff’s interest in the property – Whether plaintiff made financial contributions to the purchase and improvement of the property – Whether plaintiff holds a beneficial interest in the property together with first defendant in equal shares – Whether plaintiff holds interest subject to a resulting trust in favour of the first defendant and second defendant – Whether plaintiff holds interest as security for an obligation to repay gift or loan amount – Whether signed transfer of land form is valid – Plaintiff holds interest in the property with the first defendant as a tenant in common in equal shares of 50% – Plaintiff’s interest not subject to any equity in favour of the second defendant – Instruments Act 1958.

CREDIBILITY – Issues concerning credibility of key witnesses.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L.M.F. Watts	Chiodo Madafferi Solicitors
For the First and Second Defendants	Mr D.G. Collins QC with Mr R.L. Moore	Logie-Smith Lanyon Lawyers
For the Third Defendant	No appearance

HIS HONOUR:

Introduction

This proceeding primarily involves a family dispute concerning the proprietorship of a house and land at 45 Stuart Street, Moonee Ponds, Victoria (the ‘Moonee Ponds Property’). The plaintiff, Jawad Kalam (‘Jawad’), and the first defendant, Akhtar Kalam (‘Akhtar’), are brothers. Both Jawad and Akhtar are registered on the title of the Moonee Ponds Property as joint proprietors. Jawad alleges (inter alia) that he holds a beneficial interest in the Moonee Ponds Property, together with Akhtar in equal shares.[1] On the other hand, Akhtar alleges (inter alia) that it was never intended for Jawad to hold a beneficial interest in the Moonee Ponds Property and, at all times, such interest was held subject to a resulting trust in favour of Akhtar and his wife, the second defendant, Shamsha Kalam (‘Shamsha’).
[1]The nature and extent of the beneficial interest alleged is discussed in further detail later in these reasons for judgment.

This proceeding requires consideration of transactions and conversations extending back to June of 1982. Many records relating to those transactions no longer exist, and some witnesses involved in the alleged conversations and events are now deceased or infirm. Further, fractured family relationships appear to have coloured the recounting of relevant evidence to the Court.

The principal parties to this proceeding, Jawad and Akhtar, provided sworn oral evidence in the trial. I have been presented with the task of determining significant matters of fact based upon this oral evidence. Both Jawad and Akhtar, to varying degrees, were unsatisfactory witnesses. The evidence of Akhtar, in particular, was evasive, inconsistent and implausible; his evidence disclosed that he is a person prepared, seemingly unapologetically, to provide false evidence on oath.

The lack of availability of witnesses, a lack of corroborative evidence and the effluxion of time has presented me with great difficulty in resolving conflicts in the evidence. My factual analysis is developed by determining, based on a reasonable commonsense approach, what is more likely than not to have occurred, balancing concerns as to the credit of the principal witnesses.

The third defendant, the Registrar of Titles (the ‘Registrar’), has adopted the normal position and is prepared to abide by any order made by this Court. Consequently, there was no appearance for the Registrar in this proceeding.

Background

Jawad and Akhtar were raised as children in Kolkata, India, as part of a family of seven siblings. The father founded a family trading business in Kolkata. It was not contested that within the family, what the father said was the ‘law’ to be followed by family members.[2] In the absence of the father, the eldest brother made family decisions that bound the family members.[3]
[2]Transcript at 34.27.
[3]T196.24 - 196.25.

In 1979, after completing an MBA in the Philippines, Jawad moved to Hong Kong and, with ‘a Thai-based gentleman’,[4] commenced a garment trading firm under the name of Alkemal Trade Organisation.[5] Jawad stated that by 1982, he ‘already was a US dollar multi-millionaire’.[6] Jawad gave evidence that he, at one time, had other trading interests in Malaysia.[7] Jawad now resides and conducts business in the Philippines. He also provided evidence of ownership of property with his Philippino wife in the Philippines.[8]
[4]T31.6.
[5]T31.5 – 31.9.
[6]T35.3.
[7]T36.27 – 38.5.
[8]T50.14 – 50.25.

As previously stated, Akhtar is married to Shamsha. He, amongst other qualifications, has a doctorate in electrical engineering from the University of Bath. At the conclusion of these studies, he applied for and was offered a position at the Capricornia Institute of Advanced Education in Rockhampton, now the University of Central Queensland. He migrated to Australia with his wife and family to take up this position in 1982.

In June 1982, Akhtar and Shamsha purchased a property located at 185 Houlihan Street, Rockhampton, Queensland (the ‘Rockhampton Property’). The property was purchased for $42,500. Akhtar and Shamsha were registered on the title of the Rockhampton Property.[9]
[9]Exhibit 28, Tab 164, pp 542-547.

Akhtar said in evidence that he did not have sufficient funds to purchase the Rockhampton Property. He said that he had ‘meagre resources’ of $25,000 in savings from academic employment undertaken in Iraq and from England, and from six months work in Australia.[10] After taking into account expenses associated with the purchase of the Rockhampton Property, Akhtar stated that he required a further $25,000 to purchase the Rockhampton Property.
[10]T149.13. Note: Akhtar’s evidence is inconsistent in respect to the amount of savings he held at this time. This is discussed in more detail later in these reasons for judgment.

Akhtar stated that he telephoned his father in Kolkata to seek financial assistance. He said his father told him to buy the Rockhampton Property and that his father would organise $25,000. Shortly after this conversation, his father telephoned Akhtar to confirm the $25,000 had been arranged. Akhtar stated that his father informed him that, ‘I’m sending you $25,000 – I’m giving you $25,000’.[11] Akhtar also stated that he subsequently received a telephone call from Jawad in which Jawad informed him that, ‘I will be giving you $25,000 and this is the $25,000 my father said, it’s a gift from the family to you’.[12]
[11]T150.13 – 150.14.
[12]T150.4 – 150.6.

Akhtar’s evidence was that in his conversations with his father and with Jawad, there was no discussion as to who would own the Rockhampton Property – ‘It [the $25,000] was a gift from Jawad to Akhtar and Shamsha’.[13]
[13]T150.19 – 150.20.

Jawad stated in evidence that he was asked by his father to remit US$25,000 to Akhtar because Akhtar needed a house.[14] Jawad said his father informed him that, ‘the property will be jointly owned by the two brothers’.[15] Jawad stated that he had no discussion with Akhtar concerning the provision of the money[16] - ‘It was not necessary, it was an instruction from my father. I did not need to talk to him’.[17]
[14]T34.31 – 35.1. I note that Jawad claims US$25,000 was transferred, whilst Akhtar claims it was AUD$25,000. It is immaterial for the purposes of this analysis as to the currency in which the amount was conveyed, particularly given this point was not raised in any substantial manner before me. In this circumstance, I will deal with sum as AUD$25,000.
[15]T34.17 – 34.18.
[16]T35.11.
[17]T35.8 – 35.9.

In December 1984, Akhtar and Shamsha sold the Rockhampton Property for $67,000. By this time, Akhtar had obtained a position as lecturer at the Footscray Institute of Technology, now called Victoria University, where he currently holds the position of professor.

In February 1986, Akhtar entered into a Contract Note[18] for the purchase of the Moonee Ponds Property for the sum of $58,000. The Contract Note originally contained the names of Akhtar and Jawad as the purchasers. However, Jawad’s name on the Contract Note was crossed out by hand and replaced with the handwritten words ‘& Nominee’. Akhtar stated that Jawad’s name was originally placed on the Contract Note by an unidentified person at the auction on the instruction of Akhtar,[19] but was subsequently crossed out when the unidentified person advised that the residency of Jawad outside Australia may create problems with the contract.[20] In any event, the Moonee Ponds Property was, upon its sale, transferred to each of Akhtar and Jawad as co-proprietors. Consequently, Akhtar and Jawad were both registered on the title of the Moonee Ponds Property (the ‘Title’) as joint proprietors and joint tenants.[21]
[18]Contract Note, Ex 1, Tab 21, p 89.
[19]In the context of the evidence the unidentified person is likely to be a real estate agent.
[20]T157.10 - 157.20. Note: Akhtar alone signed the Contract Note - ‘he crossed out the name and put, "Nominee" instead so that I could sign for the document’.
[21]Ex 45, Tab 185, p 981.

Akhtar, in evidence, stated that he told his father his ‘moral conscience’ did not allow him to accept the $25,000 from Jawad as a gift, rather he would treat it as a ‘good loan’, or as a ‘qard hassan’, that is, according to Muslim principles, he would return the principal to Jawad and maybe something extra to compensate.[22] Akhtar also alleged a further conversation with his father concerning the Moonee Ponds Property occurred when he was informed by his father that Jawad was reluctant to be on the Title - ‘he had agreed to be it (sic) and as soon as you send him back the money he will transfer it to your and your wife’s name’.[23]
[22]T155.3 - 155.28.
[23]T156.2 - 156.11.

Akhtar, in his evidence concerning why Jawad’s name would be on the Title, initially said it was his own suggestion,[24] then said it was his father’s suggestion:

When I said that I had a moral dilemma, when I had a moral dilemma, that he had paid the money and I was afraid if there is a premature death of mine, then how will I assure that Jawad will be repaid? I was afraid of the hereafter and I was concerned about it and that is where my father said ‘Why don’t you put him in the will’.
‘Put him in the will’?---Sorry, put him in the [T]itle.
After that conversation, did you have a further conversation with anyone about the subject?---Not with anyone. As I said, I did have conversations with Jawad many times, but Jawad never – was never interested in any of these things because he was reluctant to be in the [T]itle.
Subsequently, did your father speak to you after he had the opportunity to speak to Jawad?---Yes. He did tell me that ‘Jawad is reluctant to be in the [T]itle and he will transfer it back to you and your wife as soon as you repay back, as you desire’.[25]

[24]T156.13.

[25]T156.14 – 156.31.

As to why Jawad would be reluctant to be on the Title, Akhtar said, later in his evidence in chief that, ‘Jawad was very busy, he was a multi-millionaire, he didn’t have time to be on the [T]itle’.[26] Akhtar also said his father never discussed why Jawad was reluctant to have his name on the Title.[27]
[26]T158.5 - 158.9.
[27]T158.10 – 158.12.

Jawad, in evidence, stated that he had no discussions with Akhtar concerning the purchase of the Moonee Ponds Property. Jawad also said his father requested he provide an additional $25,000 to Akhtar so the Moonee Ponds Property could be purchased.[28] Jawad alleged he provided Akhtar with this further $25,000 amount at the time of purchasing the Moonee Ponds Property. Jawad also alleged he contributed a further $50,000 to Akhtar for the renovation of the Moonee Ponds Property at the request of his father. This payment was made in 1986 , a month or two after he sent the $25,000 for the purchase of the Moonee Ponds Property.[29]
[28]T44.3 – 44.5.
[29]T92.15 - 92.20 and T101.2 - 101.3.

Akhtar denied the receipt of any further funds from Jawad for the purchase of, or renovation to, the Moonee Ponds Property. Akhtar also asserted he had repaid to Jawad the $25,000 given for the purchase of the Rockhampton Property. Jawad maintained he had been paid nothing by Akhtar in repayment of any amount given by him to Akhtar.

Whilst there are numerous factual matters and issues that I deal with in the reasons for judgment, the issue between Jawad and Akhtar came to a head when, in May of 2012, Akhtar and Shamsha lodged a Transfer of Land form (the ‘Transfer Form’) with the Registrar seeking to transfer the estate and interest of Jawad in the Moonee Ponds Property to Akhtar and Shamsha.[30] In August 2012, Jawad lodged a caveat over the Moonee Ponds Property ‘on the apprehension of an improper or fraudulent dealing with the land’.[31]
[30]Jawad had signed a Transfer of Land form sent to him by solicitors for Akhtar in June 2001. The circumstances surrounding the obtaining of Jawad’s signature on the Transfer of Land form are a matter of conflict dealt with later in these reasons. The Transfer of Land form was not lodged until May 2012.
[31]Paragraph 25 of Plaintiff’s Statement of Claim.

In October 2012, Jawad issued this proceeding, seeking (inter alia) a declaration that he holds an interest in the Moonee Ponds Property with Akhtar in equal shares and that his interest in the property is not subject to any equity in favour of Shamsha.

In an amended defence and counterclaim, Akhtar (and by separate amended defence and counterclaim Shamsha) alleges (inter alia) that the $25,000 provided by Jawad for the Rockhampton Property was a gift or, alternatively, a loan that has been repaid. It is alleged that Akhtar at no time intended that Jawad should be a beneficial owner of any interest in the Moonee Ponds Property. It is alleged by Akhtar that he and Jawad have, at all times, held their interest as joint tenants of the Moonee Ponds Property on a resulting trust for Akhtar and Shamsha as joint tenants.

Was the transfer of $25,00 by Jawad to Akhtar a gift, a loan or a payment of money entitling Jawad to a joint interest in the Rockhampton Property?[32]

[32]Paragraph 25 of First Defendant’s Amended Defence and Counterclaim; Paragraph 27 of Second Defendant’s Amended Defence and Counterclaim; Paragraphs 3 and 4 of Plaintiff’s Reply and Defence to First Defendant’s Counterclaim.

As stated above, Jawad contends that he provided the $25,000 to Akhtar upon the instruction of his father so that Akhtar could acquire the Rockhampton Property,[33] and that by doing so he was meant to be a joint proprietor of the Rockhampton Property. Jawad contends his father told him the Rockhampton Property would be jointly owned by the two brothers.[34] Alternatively, Jawad alleges Akhtar and Shamsha held a half interest in the Rockhampton Property on a constructive or resulting trust in favour of Jawad.[35]
[33]T33.18 – 33.21.
[34]T34.16 – 34.18 and T94.18 – 94.27.
[35]Paragraph 8 of Plaintiff’s Reply and Defence to First Defendant’s Counterclaim.

As previously stated, Akhtar and Shamsha allege the payment of $25,000 was a gift or, alternatively, a loan which has been repaid. The oral evidence of Akhtar recounting alleged conversations with his father and with Jawad at the time of the Rockhampton Property purchase is to the effect that the payment of $25,000 was a gift rather than a loan.[36]
[36]T150.4 – 150.15.

There is obvious difficulty in evaluating the evidence of both Jawad and Akhtar in respect of the provision of the $25,000 in circumstances where their father, who arranged for the money to be provided, is deceased. There is no documentary evidence or, indeed, any other evidence, to corroborate the version of either party as to what they allege they were informed by their father. I consider it highly improbable that the father informed one son it was a gift and the other it would entitle him to joint ownership of the Rockhampton Property.

After the purchase of the Rockhampton Property, Jawad made no enquiries to ensure his name was represented on the title of that property.[37] He was, although he said he would have expected it, provided with no documents to sign concerning the purchase of the Rockhampton Property.[38] When the Rockhampton Property was sold in 1984, Jawad made no enquiry as to the sale price.[39] Between the date of sale of the Rockhampton Property in 1984 and the purchase of the Moonee Ponds Property in 1986, Jawad had no discussion with Akhtar concerning funds gained from the sale of the Rockhampton Property to which he would say he was entitled to half.[40] This evidence indicates a remoteness from the land dealings inconsistent with the $25,000 having been provided by Jawad to obtain the position of co-purchaser.
[37]T98.15 – 98.16.
[38]T98.21 – 99.1.
[39]T95.27.
[40]T96.10 – 97.12.

Jawad stated in cross-examination that it was not necessary for him to know the sale price of the Rockhampton Property because, ‘[i]t was a family asset’.[41] He said he knew Akhtar would need a house in Melbourne ‘which again would be in the joint name of the two brothers’.[42] Jawad said he had no discussions with anyone in 1984 at the time of the sale of the Rockhampton Property because ‘…there are certain things that I would follow the instructions of my father’.[43]
[41]T96.18.
[42]T96.25 – 96.26: the Rockhampton Property was in the names of Akhtar and Shamsha, not the two brothers.
[43]T 96.29 – 96.30.

This evidence, considered alone, is not consistent with a person taking a proprietary interest in property transactions in which he alleges he had a half share.

However, it is not possible to consider the arrangements made for the financing of the Rockhampton Property in isolation from the details of the purchase of the Moonee Ponds Property. As stated previously, Jawad and Akhtar were registered with the Victorian Land Titles Office (the ‘Titles Office’) as the registered proprietors of the Moonee Ponds Property as joint tenants.

As referred to above, Akhtar sought to place Jawad’s name on the Contract Note for the purchase of the Moonee Ponds Property as a co-purchaser (before it was subsequently removed by hand), and his name was registered on the Title. Why this apparent change in approach?

Akhtar stated in evidence that his ‘moral conscience’ did not allow him to accept the $25,000 as a ‘benevolence’, and because he was earning, he could pay it back for the use of other members of the family.[44] Akhtar also claimed in evidence that he was concerned about his deteriorating health, and that if he died prematurely he would not be able to ensure Jawad was repaid. In cross-examination, he said he did not have the same concerns for repayment in respect to the Rockhampton Property because, in 1982, he was young and fresh from the UK.[45] However, by June 1986, he claimed he had developed diabetes and that, ‘…at any moment I can die’.[46]
[44]T155.5 - 155.15.
[45]T204.30 – 205.1.
[46]T204.30 – 205.2.

In his oral evidence, Akhtar stated that his father said, ‘[w]hy don’t you put Jawad in your will?’. On prompting from his counsel, Akhtar corrected this to say, ‘[s]orry, put him in the [T]itle’.[47]
[47]T156.12 - 156.21; I have set out the full passage of evidence at paragraph 17 above.

In cross-examination, Akhtar rejected the proposition that Jawad had an entitlement to have his name on the Title[48] and again asserted the provision of the money by Jawad was a gift or benevolence.[49]
[48]T200.31.
[49]T201.1 - 201.4.

I do not accept the evidence of Akhtar explaining the reasons why Jawad’s name was placed on the Title. His evidence that just four years after the purchase of the Rockhampton Property he had a concern he might die because of a supposed decline in his health (diabetes) and that he would be unable to repay to his brother the $25,000 which he insisted at times was a gift or benevolence, is in my opinion unbelievable. I also do not accept that a ‘moral dilemma’ caused him to convert what he asserted was a family benevolence, the provision of $25,000 for the Rockhampton Property, into a ‘good loan’ and taking the significant further step of protecting that loan by placing Jawad on the Title.

There were a variety of more simple and straightforward ways Akhtar could have recorded his indebtedness to Jawad without putting his name on the Title. In the context of the evidence of transactions within the family and the father’s role, mere acknowledgement of his self-imposed obligation to repay the $25,000 to the father would have been sufficient. My assessment of Akhtar is that he would not have permitted Jawad’s name on the Title to the exclusion of Shamsha unless there were the strongest of reasons. In my opinion, that reason was the requirement of his father that he do so because it reflected the original intentions of each of Jawad, Akhtar, and their father, in respect to the ownership of the Rockhampton Property initially and then the Moonee Ponds Property subsequently. In this regard, the more probable scenario is represented by the evidence of Jawad concerning conversations with his father at the time of purchase of the Rockhampton Property – that is, that the father instructed that upon provision of the $25,000 by Jawad, he was entitled to joint ownership of the Rockhampton Property with an interest in 50% of that property. Akhtar and Shamsha were the joint proprietors of the Rockhampton Property, but that may be explained by the direction of the father to purchase that property before he had made the actual arrangements for the provision of the required funds of $25,000.[50]
[50]T149.27 – 149.28.

I reject Akhtar’s evidence of conversations with his father at the time of the purchase of the Moonee Ponds Property regarding the circumstances of Jawad being registered on the Title - ‘… he was reluctant to be in the Title and he had agreed to be and as soon as you send him back the money he will transfer it to you and your wife’s name’.[51] As stated above, in my view, the far more likely scenario is that Jawad’s name was registered as joint proprietor and joint tenant of the Moonee Ponds Property because it reflected what was originally intended in respect to the Rockhampton Property and also, as discussed below, he provided further funding for its purchase and improvement.
[51]T156.6 - 156.11.

In my opinion, the evidence of Akhtar concerning his explanation for Jawad’s name being a joint proprietor of the Moonee Ponds Property carries with it a distinct air of contrivance; his explanation was convenient to a version of events I consider was concocted to defeat Jawad’s legitimate interest in the Moonee Ponds Property.

On the evidence, I am satisfied that Jawad provided to Akhtar the $25,000 to purchase the Rockhampton Property as a 50% co-proprietor; an arrangement accepted by Akhtar. The money was not provided as a gift, and no presumption of advancement exists. In these circumstances, it is my opinion that Jawad’s 50% interest in the Rockhampton Property was held on resulting trust by Akhtar and Shamsha. Gibbs CJ in Calverley v Green (‘Calverley’) held that:

…if the purchase money is provided by two or more persons jointly and the property is put into the name of one only, there is, in the absence of any such relationship [that gives rise to a presumption of advancement], presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such – not, for example, as a loan.[52]

[52](1984) 155 CLR 242 at 246-274. See also at 266-267 (Murphy and Deane JJ). See Brown v New South Wales Trustee and Guardian (‘Brown’) [2012] NSWCA 431 for a discussion of when the presumptions of resulting trust and advancement operate. Brown can be distinguished on the facts given that its findings were predicated on the presumption of advancement, which operates between a parent and child, not between brothers.

Nicholson J in Ong & Anor v Lottwo Pty Ltd (in liq) (‘Ong’) provides a useful description of what is required to satisfy the requisite character of a purchaser:

There is no doubt that for a resulting trust to arise the moneys contributed must bear the character of purchase moneys. A resulting trust will not arise where money is provided by way of gift or by way of loan or on some other commercial basis such as, for example, pursuant to a contractual obligation which is independent of the use to which the money might be put by the recipient. Ultimately, the court must be satisfied that the money has been provided with the requisite character…It will be sufficient, if an applicant were to plead, as the appellants have done in this case, the fact of the provision of moneys and the fact that they were used by the recipient as part of the price for the purchase of the relevant property in the recipient’s name. In those circumstances, a presumption of a resulting trust will arise. The presumption will apply or prevail unless the presumption is rebutted. It, ultimately, may be rebutted if the circumstances also give rise to a presumption of advancement or if the person in whose name the title has been registered demonstrates, on the facts, that the true character of the moneys provided was not by way of purchase but by way of, for example, loan or gift.[53]

[53](2013) 304 ALR 651 at 659 (with Kourakis CJ and Stanley J in agreement).

I have considered that Jawad, in providing the $25,000 to the purchase of the Rockhampton Property, contributed approximately 59% of the purchase price of $42,500. Where the contribution to the purchase money of a property has not been made equally, then it is presumed in equity that the beneficial owners hold that property as tenants in common in shares equivalent to their contribution, unless a contrary intention is proved.[54] As discussed above, I am satisfied on the facts that the intention of each of Jawad, Akhtar, and their father, was, regardless of the unequal contributions made to the purchase price, that both Jawad and Akhtar would be entitled to a 50% share in the Rockhampton Property. As a result, I find that Jawad’s interest in the Rockhampton Property was that of a tenant in common with a 50% share, such interest being held on resulting trust by Akhtar and Shamsha.[55]
[54]Delehunt v Carmody (1986) 161 CLR 464 at 471 (Gibbs CJ with Wilson, Brennan, Deane and Dawson JJ in agreement) affirming Carmody v Delehunt [1984] 1 NSWLR 667 at 674 (Priestley JA with Hutley JA and Glass JA in agreement).
[55]In making these findings I have also considered the discussion in Brown [2012] NSWCA 431 and the judgment of Campbell JA where he referred to the necessity for caution in the approach of a court in considering the uncorroborated evidence of alleged conversations with a deceased person at [67]. Here the alleged conversations were between Jawad and his father and Akhtar and his father. As Campbell JA stated ‘ultimately, though the question remains whether the claim has been made out on the balance of probabilities’ at [67] and in making such finding ‘the evidence must be enough to enable the court to feel actual persuasion that a particular fact is so’ at [52].

In making these findings (and others) I take into account my overall assessment of Akhtar’s credibility. The evidence (I further detail below) discloses Akhtar as a person prepared to lie on oath if he perceives such lies will advance his personal position. This leads me to be cautious in accepting Akhtar’s evidence in the absence of some form of corroboration or where the contended for proposition is the obvious conclusion based on the evidence.

Has Akhtar repaid the $25,000 to Jawad?

It is convenient to deal with the aspect of the amended defence and counterclaim of Akhtar which states that Jawad held his interest as a joint tenant of the Moonee Ponds Property as a mortgagee to secure an obligation of Akhtar to repay the gift of $25,000 to Jawad and subject to an equity of redemption.[56] Akhtar alleges that he has repaid the gift and that as a consequence, Jawad is obliged to transfer his interest in the Moonee Ponds Property at the direction of Akhtar.
[56]Paragraphs 34. 35 and 36 of First Defendant’s Amended Defence and Counterclaim.

In his pleading,[57] and in evidence in this proceeding, Akhtar alleges repayment of the $25,000 as follows:

(a)in early 2004, at Jawad’s request, Akhtar paid $7,500 towards the tuition fees of Junaid, Jawad’s son;
(b)in December 2008, at Jawad’s request, Akhtar contributed $10,000 towards the wedding expenses of Erum, Jawad’s daughter;
(c)in July 2010, at Jawad’s request, Akhtar contributed $13,000 towards the wedding expenses of Sana, Jawad’s daughter.

[57]Paragraphs 41, 42, 43 and 44 of First Defendant’s Amended Defence and Counterclaim.

Jawad denied he requested Akhtar to pay the tuition fees on behalf of his son, Junaid, and asserted Akhtar did not pay these fees.[58] Jawad denied receiving any money for or on behalf of Akhtar concerning the wedding expenses of Erum.[59] Concerning the wedding expenses of Sana, Jawad denied receiving $13,000 from Akhtar, but stated that he received $8,000 from Akhtar as a wedding gift.[60] Jawad denied that this amount was made as a repayment of any loan or gift given by him, and also denied Akhtar’s claim that when he (Akhtar) gave Jawad the $8,000, that he (Akhtar) stated that this payment meant the gift of $25,000 had been repaid.[61]
[58]T112.4 - 112.17.
[59]T62.15 - 62.20 and T116.7 – 116.8.
[60]T116.14.
[61]T116.24 – 116.27.

Akhtar has provided a number of versions of the alleged repayment of $25,000 to Jawad. These are discussed in detail below. However, before considering these versions it is convenient to examine the evidence concerning the preparation of the Transfer Form by Akhtar and its signing by Jawad, as it relates to the alleged repayment.

In 2001, Jawad signed the Transfer Form purporting to transfer his estate and interest in the Moonee Ponds Property to Akhtar and Shamsha. Jawad maintains he signed the Transfer Form, after being advised by his older brother, Ashraf, that he should do so because foreigners would not be allowed to own land in Australia. The circumstances around what led Jawad to sign the Transfer Form, what writing was on the Transfer Form at the time he signed it and the writing that was on the Transfer Form when lodged with the Titles Office are the subject of dispute in this proceeding. This will be discussed in further detail later in these reasons for judgment.

Akhtar stated in evidence that he asked Mr Shujat Mantoo, a solicitor friend of his, not to lodge the signed Transfer Form because it would have meant that he would have to pay a substantial amount of stamp duty,[62] and that there was a further ‘… very big reason and the biggest reason of them all was that I had not paid Jawad [the $25,000]’ (emphasis added).[63]
[62]T167.11 – 167.12.
[63]T167.15 – 167.17.

Mr Mantoo had discussions with Akhtar about the potential difficulties of Jawad signing the Transfer Form because he lived in the Philippines.[64] Akhtar said to Mr Mantoo he would get it done and he would provide the Transfer Form back to Mr Mantoo once completed.[65] Further, according to Mr Mantoo, Akhtar intended to lodge the Transfer Form once it had been signed, but decided later not to proceed upon being informed of the stamp duty implications. Mr Mantoo stated that it was only when the signed Transfer Form had been returned to him, ready for lodging, that he informed Akhtar there would be stamp duty payable and that there was no way around payment of stamp duty - ‘… At that time then he demurred and he didn’t want me to do anything further’.[66]
[64]T137.14 - 137.26.
[65]T137.27.
[66]T138.5 - 138.19.

Upon considering the evidence of Mr Mantoo, I do not accept the statement of Akhtar that the ‘biggest’ reason for not filing the Transfer Form in 2001 was that he had not repaid Jawad the $25,000. The evidence of Mr Mantoo points to the repayment of the $25,000 being irrelevant to Akhtar’s desire to transfer Jawad’s interest in the Moonee Ponds Property to Shamsha and himself. Akhtar’s desire to lodge the Transfer Form in 2001 when the $25,000 had not been repaid supports my finding that Akhtar’s evidence as to why Jawad was registered on the Title, because of the dictates of his moral conscience to repay a gift, is a concoction. The professed concern to reimburse Jawad prior to lodging the Transfer Form is artifice. Further, Akhtar’s intention to lodge the Transfer Form in 2001 without having reimbursed Jawad confirms my opinion that his account of what his father said to him, that ‘as soon as you send him back the money he will transfer it to your and your wife’s name’,[67] is a contrivance.
[67]T156.10 - 156.11.

Despite being informed by Mr Mantoo in 2001 that there was no way around the paying of stamp duty upon a transfer of Jawad’s estate and interest in the Moonee Ponds Property to Akhtar and Shamsha, Akhtar, in 2011, engaged new solicitors and set upon a course of dishonest conduct in an attempt to avoid the payment of stamp duty. Akhtar, in providing sworn, false, statutory declarations to the State Revenue Office (the ‘SRO’), attempted to deceive the SRO as to the circumstances of the purchase of the Moonee Ponds Property, and provided false evidence concerning his alleged repayment of $25,000 to Jawad. In a statutory declaration dated 14 May 2011:

3.The transfer to my brother and I was dated 10 May 1993. I was the real purchaser of the property; the price for the acquisition of which was $52,500. I provided all of the purchase money for the property save that my brother on my behalf contributed $25,000 by way of finance. My brother has never resided in the property or exercised any rights or obligations of an owner. I have paid all rates and taxes in respect of the property.
4.Because of our Islamic faith, this finance was not expressed as a loan. I repaid the finance with a further $5,500 by three instalments as follows:
February 2004  $ 7,500
October 2008            $10,000
July 2010                   $13,000
5.The last instalment was paid in July 2010.
6.Unfortunately I do not, now, have bank statements verifying payment for or in respect of the property.[68]

[68]Ex A, Tab 52, p 154.

In this statutory declaration, Akhtar deposed that Jawad contributed $25,000 to the purchase of the Moonee Ponds Property. However, in these proceedings, Akhtar denies that Jawad contributed $25,000 towards the purchase of the Moonee Ponds Property.[69] As stated previously, Jawad contends that, at the request of his father, he did provide $25,000 to the purchase of the Moonee Ponds Property.[70]
[69]T205.13.
[70]T44.8.

Akhtar said his solicitors, Logie-Smith Lanyon, had prepared this statutory declaration – ‘this was the stat[utory] declaration I was asked to sign’.[71]
[71]T188.1 – 188.2.

A further statutory declaration merely dated 2012 was sworn by Akhtar.[72] This statutory declaration refers to an earlier statutory declaration apparently sworn by Akhtar in August 2011 which was not produced in evidence. In this further statutory declaration, Akhtar again deposes that Jawad contributed $25,000 to the purchase price of the Moonee Ponds Property. Akhtar referred to a request from the SRO that he verify repayments to Akhtar by use of bank records. Akhtar stated in this statutory declaration the following:
[72]Ex 14, Tab 56, p 203.1.

6.I have been asked to verify the payments from my bank records and I have discovered that my memory, in completing my previous statutory declaration, was inaccurate.
7.On 24 July 2004 I made a payment by American Express, for my brother’s hospital treatment in Hong Kong Adventist Hospital for HK$90,000 which translated to AUD$16,512.75.
8.On 29 October 2008, I withdrew from my bank account at the Westpac Bank, the sum of $10,008 cash. Shortly afterwards I travelled to Manila, Philippines to see my brother and I handed to him $5,008 cash.
9.On 25 June 2010, I withdrew $8,000 cash from my account at the Westpac Bank. Shortly afterwards, I travelled again to Manila, Philippines and saw my brother. I handed him $8,000 cash.
10.In consequence, I paid my brother $25,000 being repayment of the amount of finance provided by him together with a further $4,520.75.
11.I attach a copy of my American Express statement and my Westpac Bank statements showing each of the above payments.[73]

[73]It is noted that when Akhtar needed to support what was a false statement concerning a payment, he was able to produce an eight year old American Express statement.

In his evidence in this proceeding, Akhtar explained his sworn statement in this statutory declaration, that Jawad contributed $25,000 to the Moonee Ponds Property, as a mistake – ‘The mistake is that – it’s a mistake, in order to satisfy the [SRO]’.[74] He said that he was ‘under pressure, in order to comply with SRO requirements’.[75]
[74]T194.18 – 194.20.
[75]T219.23 – 219.24.

I asked the following questions of Akhtar, and he provided the following answers concerning why this mistake appeared in his statutory declaration:

Why is that sentence in this statutory declaration?---As I mentioned in the beginning, that we wanted to get stamp exemptions for a property in Moonee Ponds. We had to show that the finance came to Moonee Ponds and that’s why consistently that mistake has been put in.
But on its face, professor, you are prepared to tell an untruth to get a stamp duty exemption for the property in Moonee Ponds?---I was asked to look at the probability of getting stamp exemptions on a property which was purchased in Rockhampton but I would not get the stamp duty exemption if I had not any finance from anywhere.

Just for my edification, did you think to excuse yourself from stamp duty, you could put something in a statutory declaration which was untruthful?---It is untruth, and I put it in the statutory declaration, and I admit it.[76]

[76]T231.22 – 232.6.

I do not accept these false accounts were ‘mistakes’. Akhtar’s conduct amounted to blatant dishonesty in an attempt to defraud the SRO.

Akhtar admits that the statement in paragraph 7 (set out above) that Akhtar made a payment ‘for my brother’s hospital treatment’ in Hong Kong in the sum of $16,512.75 ‘was an inaccurate statement’.[77] The payment was not for Jawad, but for another brother, Ashraf.[78] Akhtar said he was searching his records for any payments he had made in foreign currency in an attempt to convince the SRO that he had repaid his brother $25,000 - ‘I needed something to put to the SRO’.[79]
[77]T222.10 – 222.11.
[78]T222.13 – 222.15.
[79]T222.21.

The statement in paragraph 8 (set out above) is false. Akhtar did not travel to Manila in 2008 and did not pay $5,008 in cash to Jawad.[80]
[80]T224.1 - 224.5.

The statement in paragraph 9 (set out above) is false. Akhtar did not travel to Manila in 2010 and did not hand his brother $8,000 in cash.[81]
[81]T224.15 - 224.20.

I asked Akhtar to explain these falsities in his sworn statutory declarations:

Can you explain, professor, how you have sworn a statutory declaration saying that you travelled to Manila in June 2010 and handed your brother $8,000 in cash?---Yes, I did not go to Manila. I did give him the money, I went to Karachi.
How could that end up in your statutory declaration that you did go to Manila and there give him $8,000?---I was asked to come up with a quick answer and I would have thought, that is the only place I could have gone. I completely forgot about Erum’s marriage and Sana’s marriage.[82]

[82]T224.27 – 225.6.

I do not accept Akhtar’s evidence that he ‘completely forgot about Erum’s marriage and Sana’s marriage’. If he had truly made the payments as he alleges concerning the weddings of both Jawad’s daughters, they were payments of such significance in the context of the alleged repayment of $25,000 and this proceeding, $10,000 and $13,000, that, on my assessment of Akhtar, he would not have forgotten. The repayment of the $25,000, on his evidence, was of great importance to him.

A letter from Akhtar’s lawyers, Logie-Smith Lanyon, to the SRO dated 11 April 2012 explains the payments referred to in this statutory declaration as follows:

I have taken instructions from Professor Kalam to try to demonstrate that he repaid his brother, Jawad Kalam, the amount of $25,000 representing his contribution towards the purchase price of the property.
It turns out that Professor Kalam’s recollection, as reflected in his statutory declaration which we sent you, was inaccurate. Professor Kalam has gone through his bank records, as I requested, and the result is as follows.
1.On 24 July 2004, Professor Kalam paid for his brother’s hospital treatment in Hong Kong Adventist Hospital for HK$90,000 which translated to AUD$16,512.75.
2.On 29 October 2008, Professor Kalam withdrew $10,008 from his account at the Westpac Bank and, later that month, paid his brother $5,008 towards repayment. Professor Kalam spent the remainder of the cash withdrawal.
3.On 25 June 2010, Professor Kalam withdrew $8,000 from the Westpac Bank and, later in July 2010, handed this amount to his brother in cash.
4.The total repaid was $29,520.75.

It goes to show that human memory can be faulty.[83]

[83]Ex 16, Tab 63, p 210.

It is my assessment of the evidence of Akhtar that his memory was not faulty but, rather, the content of the statutory declaration and the explanatory letter were further deliberately dishonest attempts to mislead the SRO that he had repaid his brother $25,000 when no such repayment had been made.

Akhtar swore a further statutory declaration on 15 June 2012.[84] In this statutory declaration, Akhtar again deposed that Jawad had provided $25,000 ‘finance’ to assist in the purchase of the Moonee Ponds Property after he, Akhtar, had contacted him. The provision of the $25,000 was not referred to as a gift. Akhtar deposed, at paragraph 6, in part:

11.… As I have sworn in my statutory declarations sworn in August 2011 and April 2012, my brother and I are of the Islamic faith. My brother said he was prepared to provide finance in the requested sum of A$25,000 by way of Sharia law finance with my brother and I being registered as the proprietors of the property. We both understood that when I had paid by way of rent the amount of A$25,000 plus earning thereon in the form of rent to my brother, he would transfer his interest in the property to me.
12.At all times, my brother’s interest in the property was by way of finance and I was the real purchaser who, save for the finance that my brother provided, provided the whole of the purchase price for the property.

[84]Ex 8, Tab 52, p 154.1.

As discussed above, this account is the antithesis of the evidence Akhtar provided in this proceeding relating to these issues. In this proceeding, he stated Jawad did not provide $25,000 towards the purchase of the Moonee Ponds Property, that the provision of $25,000 by Jawad for the Rockhampton Property was a gift or benevolence as opposed to ‘Sharia law finance’,[85] and that the discussions concerning the obtaining of $25,000 were with the father as opposed to direct contact and dealing with Jawad.
[85]Note: As stated previously at paragraph 16, Akhtar in his evidence stated that he subsequently deemed the $25,000 to be a ‘qard hussan’ or good loan.

In this statutory declaration, Akhtar again untruthfully deposed that he had repaid the $25,000 to Jawad by payment of medical expenses in Hong Kong and by cash payments to Jawad during trips to Manila. Akhtar also deposed in this statutory declaration:

16.The State Revenue Office letter to my solicitors dated 4 May 2012 signed by Jim Kokolios basically states that he does not believe me when I swore that my brother paid $25,000 toward the original purchase of the property and that, under Sharia law, I repaid that amount with earning on it as I have stated.
17.I am deeply offended at this lack of belief and for this reason, despite relations between my brother and I no longer being cordial, I have gone to a lot of trouble to have my brother swear a supporting statutory declaration.[86]

[86]Ex 8, Tab 52, p 154.1.

These paragraphs, in my view, underscore the lack of credibility of Akhtar and the unreliability of his evidence. His deep offence at the SRO’s rejection of what he now says are untruthful sworn representations to them is a mark of his mendacity.

In an effort to support Akhtar’s representations to the SRO, a draft statutory declaration was prepared and provided to Jawad in approximately May 2012 by Mr S. Begg, solicitor of Logie-Smith Lanyon, Akhtar’s solicitor. The draft affidavit[87] was prepared on instructions from Akhtar. The draft referred to a request by Akhtar for $25,000 by way of Sharia law finance ‘for purchase of the Moonee Ponds Property’. The draft statutory declaration referred to the repayment of the $25,000 by way of payment for medical expenses in Hong Kong in the sum of $16,512.75, and two cash payments of $5,008 and $8,000 made in Manila in 2008 and 2010 respectively.
[87]Ex 9, Tab 53, p 155.

Jawad, in a statutory declaration dated 19 June 2012, stated he could not sign the draft statutory declaration as the contents of it were almost all false. Concerning the financing arrangements of the Rockhampton Property and the Moonee Ponds Property, Jawad deposed:

5.At the intercession of my late father, Abul Kalam Qureishi, I was persuaded to buy a property in Rockhampton in the joint name of Akhtar Kalam and Jawad Kalam and for which I sent Mr Akhtar Kalam US$25,000.
6.The property was later sold and the principal and the appreciation never returned back to me as stated that the same would be used to acquire a property in Melbourne, Australia.
7.Then some time in 1986 having moved to Melbourne, Australia and having found a property to acquire in joint ownership, once again at the behest of my later father Abul Kalam Qureishi an additional US$25,000 was sent so that property worth more or less US$50,000 could be acquired.
8.Subsequent thereto, Mr Akhtar Kalam had also obtained an additional $50,000 to renovate the property. My total investment in the property is US$100,000.
9.… I have never lent Mr Akhtar Kalam any money. Had it been true then he should have compensated me with interest, rental payments, whatever. It is illogical to think a loan would be forgotten for 25 years. The prepared sworn statement Annexe A speaks of borrowing under Sharia law, which is a falsehood.[88]

[88]Ex 9, Tab 53, p 155.

The statutory declaration of Jawad is largely consistent with his sworn evidence in this proceeding. It prompted a further statutory declaration from Akhtar dated 20 August 2012.[89] In this statutory declaration, Akhtar reversed the statements of his earlier statutory declarations, deposing:

6.In 1982 I had moved to Australia with my wife and my first appointment was in Rockhampton. I decided to buy a property in Rockhampton (‘Rockhampton Property’). The Rockhampton Property was acquired in the name of me and my wife. To assist in the purchase I asked Jawad for a financial contribution of $25,000 which he provided to me. Despite the financial contribution from Jawad, I did not include him on the Title to the Rockhampton Property. I paid for the Rockhampton Property otherwise from my own resources, and did not wish to borrow, as it was against my faith, and so I sought the financial contribution from Jawad, and received it by way of a money transfer from Hong Kong.
7.When I moved my family from Rockhampton to Melbourne in 1984 my wife and I sold the Rockhampton Property (for approximately $60,000). I put the funds into an account with RESI in my own name, until 1986 when I used the funds to acquire the property in Melbourne. At the time I purchased the property I decided to put Jawad on the Title, after discussing the matter with my father, in order to provide some protection for Jawad for the return of the $25,000 in case anything should happen to me.
8.As I have sworn in my statutory declaration sworn in August 2011 and April 2012, my brother and I are of the Islamic faith. Since my brother had provided a financial contribution in the requested sum of A$25,000 for the purchase of the Rockhampton Property, which has now been applied to the property, I decided to include him on the Title. We both understand when I have paid the amount of A$25,000 to my brother, (plus an amount of rent, if I was able) he would transfer his interest in the property to me.[90]

[89]Ex 10, Tab 54, p 162.

[90]Ex 10, Tab 54, p 162 - 163.

I observe in this statutory declaration there still remain significant differences with the evidence provided by Akhtar in this proceeding relating to these issues. In this respect, Akhtar states in this statutory declaration that the discussions for the provision of $25,000 for the Rockhampton Property were with his brother Jawad, rather than with his father; the $25,000 is referred to as a ‘financial contribution from Jawad’, rather than a gift; and there is a recognition by Akhtar of an obligation to repay the $25,000 to Jawad.

In this statutory declaration, and in his evidence in Court,[91] Akhtar conceded the payment of medical expenses in Hong Kong did not relate to Jawad but rather his other brother, Ashraf. In this respect, he stated that, ‘[t]his payment is not strictly a repayment of my financial obligation to Jawad’.[92] Akhtar was in fact reimbursed for this payment.[93]
[91]T221 - 222.
[92]Ex 10, Tab 54, p 163.
[93]T192.11.

In this statutory declaration, Akhtar also alleged repayment of the $25,000 by way of payments of $7,500 for tuition fees for Jawad’s son, Junaid, and payments towards the costs of Jawad’s daughters’ weddings; being a cash payment in December 2008 of $10,000 for the wedding of Erum and, in July 2010, a payment of $13,000 for the wedding of Sana.

This amounted to a new version of the alleged repayment, and it was the version adopted by Akhtar in his evidence in this proceeding.

In his evidence-in-chief, Akhtar stated he received a request from Jawad in December 2003 to pay tuition fees at the TAFE section of Victoria University. At the time, Junaid was living with Akhtar. Akhtar stated he paid $7,500 comprised of $1,700 cash and a cheque of $5,800 payable to Victoria University for fees, and ‘made sure that Jawad understood that this was the first of many instalments that I will be paying to recuperate (sic) the house in my and my wife’s name’.[94] Akhtar could not produce any records of these payments.[95]
[94]T169.16 – 169.19
[95]T170.16 - 170.24.

Akhtar did not refer to this payment as being part of the repayment of $25,000 in his statutory declarations dated 2012 and 15 June 2012. The failure of Akhtar to refer to this alleged ‘first’ repayment to Jawad in the statutory declaration was unexplained.

In cross-examination, Akhtar was asked if he knew Jawad was unhappy about Junaid travelling to Australia to attend Victoria University. In his answer, Akhtar stated that Jawad should have been happy, ‘but you say that he’s unhappy and apparently there’s a letter which states that he’s very unhappy’.[96]
[96]T239.24 - 239.26.

The letter Akhtar is referring to is a letter from the brother, Ashraf, to Junaid dated 12 November 2003.[97] The letter refers to communication between Ashraf and Akhtar concerning payment of Junaid’s tuition fees. The letter indicates Jawad did not agree with his son studying in Australia and the request for payment of tuition fees to Akhtar came from Ashraf, not Jawad. The letter from Ashraf to Junaid reads, in part:

I have already arranged with Akhtar to pay AUD$5,500 on my behalf and he will reimburse it directly from me. It is not your concern anymore. You make your necessary preparation to go for your studies. Upon completion, you come to Hong Kong to work at Alkemal.
Do not bother with Jawad. He is a very stubborn man. He cannot be made to agree if he does not want. You have to understand that. I suggest you study hard and well and keep on reporting to me how you did at each semester. Make us all proud.[98]

[97]Ex 41, Tab 174, p 943.

[98]Ex 41, Tab 174, p 943.

Akhtar, in cross-examination, was asked about this letter:

I take it, professor, or let me ask, did you have any conversation with Ashraf, your brother, concerning the payment or the reimbursement of university fees?---As I had received a request from Jawad, I told my brother Ashraf that there is no point, I have already organised for the payment of Junaid for $5,800.
So what did you say to the second paragraph of this letter, the statement: ‘I have already arranged with Akhtar to pay $5,500 on my behalf and he will reimburse it directly from me’?-–-He and me would talk often, he was the eldest in the family and he may have requested, and in the meantime I received the request from Jawad and I actually told my elder brother that there was no need, I have already done that and it’s going to be my first instalment of the $25,000 repayment.[99]

[99]T240.22 – 241.6.

Jawad’s evidence was that he did not know who paid Junaid’s tuition fees at the time, although he subsequently made inquiry after these proceedings were initiated.[100]
[100]T125.3 - 125.14.

Ashraf was called in support of Akhtar’s claim that he paid Junaid’s tuition fees and was to be reimbursed for that payment by Jawad. Ashraf presented to the Court both physically and mentally infirm. He could not understand straightforward questions. Some of his evidence appeared to me to be rehearsed. He was unable to say whether he suffered a stroke or from illness in 2014.[101] He agreed he had been treated at the Kolkata Institute of Neuroscience for memory loss,[102] but did not undertake the treatment recommended. He had been in Australia for a month prior to giving evidence on the understanding Akhtar would assist in obtaining medical treatment in this country.[103] Perhaps this medical condition is one explanation for what I consider to be Ashraf’s unreliable evidence.
[101]T278.20 – 279.8.
[102]T279.12 - 279.16.
[103]T279.17 - 279.28.

Ashraf said his letter of 12 November 2003, where he stated to Junaid that he would reimburse Akhtar for payment of tuition fees, was despatched before a later agreement that Jawad would reimburse Akhtar for the tuition fees.[104] In his evidence-in-chief Ashraf stated this agreement was reached in a three-way telephone conversation involving Jawad, Akhtar and himself.[105] In cross-examination, Ashraf denied he had such a three-way conversation, stating that, ‘[i]t was not three-way, it was only two ways. Individually I discuss with Akhtar as well as Jawad’.[106] He said his evidence-in-chief concerning a three-way conversation was false.[107] Ashraf then stated, in contradiction of the contents of his letter to Junaid in November 2003, that he did not know that Jawad did not want his son to study in Australia – ‘These are matters dealt by my father. You know, who was going to come for his studies here or not, my father decide all these things, you know’.[108] This evidence of Ashraf again demonstrates the inherent unreliability of his evidence. Both Akhtar[109] and Jawad[110] gave evidence that their father died eight years prior to 2003 in 1995.
[104]T284.1 - 284.5.
[105]T277.29 – 278.10.
[106]T287.20 - 287.27.
[107]T287.16 - 287.17.
[108]T287.31 – 288.6.
[109]T148.4.
[110]T51.17.

As stated above, Ashraf presented in Court as infirm. It was apparent his recall of events was impaired. At times in his evidence, he demonstrated he was susceptible to leading and to suggestion. I do not accept his evidence that arrangements for reimbursement of Akhtar for Junaid’s tuition fees set out in his letter of 12 November 2003 were varied. The written correspondence, in my opinion, is highly likely to represent the actual course of events – that Ashraf agreed to reimburse Akhtar upon payment of Junaid’s school fees.

I do not accept that Akhtar paid the tuition fees of Junaid at the request of Jawad. I do not accept that there was a conversation in November or December 2003 between Akhtar and Jawad that the payment of tuition fees by Akhtar would be part of a reduction of the sum of $25,000.

The contemporaneous letter of Ashraf makes clear Jawad did not approve of Junaid studying in Australia. The letter indicates arrangements for tuition fees made between Ashraf and Akhtar at the request of Ashraf. In considering this evidence, I have regard to the inconsistency of Akhtar’s evidence concerning the alleged repayment of $25,000, together with his overall lack of credibility. I do not accept that Akhtar forgot about this repayment or forgot that he ‘made sure Jawad understood that this was the first of many instalments …’ to repay Akhtar when preparing his statutory declarations for the SRO. More particularly, it is my opinion that the course of conduct set out in the letter is more likely to represent the truth, that is, the older brother, Ashraf, intervened to secure payment of Junaid’s tuition fees. I consider the evidence of Akhtar in this regard to be another attempt to fabricate some form of repayment of the $25,000.

Two other events are relied upon by Akhtar for his repayment of Jawad of the $25,000. They are as previously stated, alleged payments of $10,000 and $13,000 towards the wedding expenses of Jawad’s daughters, Erum and Sana.

Jawad’s daughter, Erum, was married in Kolkata in December 2008. Akhtar stated all arrangements for the wedding were made by his ‘other elder brother Feroze’.[111] Jawad denied arrangements for the wedding were made by Feroze, stating arrangements were made by direct contact ‘between us and the parents of the boy’.[112] Jawad said his sister-in-law had arranged the marriage.[113]
[111]T174.27.
[112]T115.12.
[113]T115.18.

Akhtar stated Jawad, as the date of the wedding approached, asked him for a contribution to the wedding expenses. Akhtar alleged Jawad in this conversation referred to some kind of financial crisis ‘and I said that yes, I would be able to give him $10,000’.[114] Akhtar alleges in this conversation he told Jawad that, ‘[t]his will be the second of the instalments that I would be making towards the payment of the house, that the qard hassan that was on me’.[115] Akhtar said Jawad responded that it was unnecessary – ‘you don’t have to pay me anything’.[116]
[114]T175.15.
[115]T175.23.
[116]T175.24.

Akhtar produced bank records demonstrating $10,000 was transferred from his Westpac Bank account, held jointly with Shamsha (the ‘Westpac account’) to the National Australia Bank (‘NAB’) account of his daughter, Sabiha Kalam (‘Sabiha’), on 30 October 2008. Sabiha works as a risk manager at the NAB and, by use of her account, he stated he would save foreign transaction fees. Akhtar stated Sabiha added $3,000 for, what he described as, ‘our expenses’.[117] The sum of $13,008 was transferred on 30 October 2008 from Sabiha’s NAB account to Akhtar’s account with the Standard Chartered Bank in Kolkata and converted to 410,750.60 rupees.[118]
[117]T175.24.
[118]Ex 21, Tab 84, p 260.

A bank statement for Akhtar’s Standard Chartered Bank account[119] records that on 22 December 2008, the amount of 315,962 rupees was debited from that account to ‘FA Kalam’. Akhtar stated he issued a cheque to Feroze ‘on the instruction of Mr Jawad Kalam when he instructed me that, “Please make payment to Feroze Afzal Kalam for the $10,000” and that came to 315,962 [rupees]. After that getting that [sic], Mr Jawad Kalam thanked me for that…I reminded him again that this was the second of the instalments that I was paying him’.[120] Akhtar also said he gave 50,000 rupees to Erum as a wedding gift.[121]
[119]Ex 22, Tab 85, p 261.
[120]T178.6 - 178.14.
[121]T178.18.

Sabiha provided evidence confirming the banking transactions and that by using her account with the NAB, the cost of the transfer was $8 as opposed to $22.[122] Sabiha stated that Akhtar asked her to ‘deposit [the money] to India’ for her cousin’s wedding.[123]
[122]T310.4.
[123]T308.15.

Jawad stated it was untrue that Akhtar had provided $10,000 to Feroze at his request,[124] that he was not aware of any financial contribution to the cost of Erum’s wedding, and that the payment of $10,000 to Feroze would be for matters between Akhtar and Feroze.[125]
[124]T115.19.
[125]T115.21 - 115.31.

In his statutory declaration of 15 June 2012, Akhtar provided different sworn evidence concerning the withdrawal of $10,008 from his Westpac account :

8.In early 2008, I visited my brother in Manila, Philippines and handed him cash of $5,008.[126]

[126]Ex 8, Tab 52, p 154.1.

The letter written by Akhtar’s lawyers, Logie Smith Lanyon, to the SRO dated of 11 April 2012, was written on the instructions of Akhtar.[127] It referred to the false statement by Akhtar of a payment to Jawad of $5,008 and stated, ‘Professor Kalam spent the remainder of the cash withdrawal’.
[127]Ex 16, Tab 63, p 210. See paragraph 63.

This statement of travel to Manila and payment to Jawad of $5,008 cash is untrue. The statement that ‘Professor Kalam spent the remainder of the cash withdrawal’ on the basis of Akhtar’s evidence to this Court is a fabrication. I do not accept his (or Sabiha’s) evidence that the payment now is to be seen as concerning Erum’s wedding, a payment made at the request of Jawad. I have already stated I do not accept Akhtar’s evidence that in preparing his various statutory declarations for the SRO he ‘completely forgot’ about his payments concerning his nieces’ marriages.[128] It is my assessment of Akhtar that he would not have forgotten the reason for payment of such a significant sum. It is clear in 2012 he turned his mind to this very same financial transaction. He then made up a different story. The tendered evidence concerning the banking transaction indicates no more than dealings between Akhtar and his elder brother, Feroze. I do not accept that the payment of $10,008 to Feroze was at Jawad’s request for contribution to Erum’s wedding expenses.
[128]See paragraphs 61 – 62.

In July 2010, Jawad’s daughter, Sana, was married in Karachi, Pakistan. Akhtar alleges prior to the wedding, Jawad made contact with him and said that, ‘[h]e had money problems at his end and he wanted to know whether I could pay him $15,000, but I could only afford $13,000’.[129] Akhtar stated he told Jawad that this ‘will be the last and final payment I’ve made towards my house and now I can transfer the house in my and my wife’s name’.[130]
[129]T182.9 - 182.13.
[130]T183.1 - 183.4.

Akhtar stated the $13,000 was raised from withdrawing $8,000 from his Westpac account and obtaining the remaining $5,000 from a friend, a PhD student he was supervising, Mr Kannan Krishnan, who owed him money from borrowings in 2009 – 2010. By the end of June 2010, the student had allegedly repaid the $5,000 to Akhtar in cash, and Akhtar took the $8,000 (from his joint bank account) and the $5,000 (from the student) in cash to Pakistan.[131]
[131]T183.9 - 183.14.

Akhtar produced a bank statement to demonstrate the withdrawal of $8,000 from his Westpac account on 25 June 2010.[132] An email from Akhtar to Jawad of 29 June 2010[133] referred to Akhtar potentially leaving money he was carrying for Jawad with Erum in Dubai. Akhtar stated in evidence it was difficult to carry that amount of cash from India to Pakistan, and Erum could carry it on a direct flight.[134] Akhtar stated that he, in the end, did carry the money and gave it directly to Jawad in Karachi.[135]
[132]Ex 23, Tab 87, p 263. The credit balance recorded in the bank account is $45,858 – why Akhtar could only afford $13,000 and not the $15,000 allegedly asked for was not the subject of evidence.
[133]Ex 25, Tab 94, p 305.
[134]T184.30 - 184.12.
[135]T185.16 and T185.24.

Jawad stated he received $8,000 from Akhtar which he considered a wedding gift in respect to Sana’s wedding.[136] He did not query why it was so much because it was a wedding gift.[137] He conceded in 2009 the Hong Kong Trading Company was having financial difficulties – ‘During the time of 2009 the parent company, which is Alkemal Trade Organisation was having financial problems’.[138] However, I do not consider the evidence demonstrates the financial difficulties of the Hong Kong company impacted on the financial or business circumstances of Jawad in the Philippines.
[136]T72.11 - 72.12.
[137]T116.15 - 116.16.
[138]T117.3 - 117.5.

Akhtar has previously deposed that he provided $13,000 to Jawad. In his statutory declaration dated 14 May 2011,[139] he stated he made a payment of $13,000 to Jawad in July 2010. In a later statutory declaration dated 15 June 2012, after being requested to provide further information by the SRO concerning repayment to Jawad, he deposed:

9.In late June 2010, I again visited my brother in Manila, Philippines, and handed him $8,000.[140]

[139]Ex 7, Tab 52, p 154.

[140]Ex 8, Tab 52, p 154.1.

This statement of travel to Manila and repayment of $8,000 to Jawad was untrue. Akhtar agreed that in this statutory declaration he did not identify where the additional money ($5,000) had come from. It was put to Akhtar, in order to make up the $8,000 to $13,000, he had invented the story of a collection of a debt of $5,000 from a student. Akhtar denied he had concocted the story.[141]
[141]T252.11 - 252.15.

Mr Krishan was called on behalf of Akhtar. Despite his very apparent effusiveness for Akhtar,[142] I do not accept Mr Krishan was a reliable witness. He stated he was undertaking a PhD at Victoria University in 2009 and 2010, and that his supervisor was Akhtar.[143] Mr Krishan said he borrowed $5,000 in a series of payments from Akhtar. He stated:

How many payments?---At least four, five. Once I borrowed $1,200 for travelling and I went in 2010, December, to India. So before going I borrowed $500 cash for living expense and when I came back I had some bills due so I got $800 and in the middle of June I got $1,000.
It was $5,000 in total?---In total, yes.
Has that money been repaid?---Yes.
When was it repaid?---During the second week of June my professor asked me to return the money, so I paid the money around 1 July.[144]

[142]See T267.14 – 267.20 where Mr Krishan described Akhtar in the following words: ‘I would like to see you, seeing the protocol, first is mother, second is father and third is God and he is a person in my life who in the last five years, I’m treating like a God, before God so that means, first day I was impressed, still and I’m continuing and such a wonderful person, fantastic’.

[143]T264.10. Akhtar did not think it unusual that a student would borrow money from his PhD supervisor at T274.8 - 274.15.

[144]T264.27 – 265.5.

According to Akhtar, he requested payment of this alleged debt in June 2010. On Mr Krishan’s evidence, at least some of the money was not borrowed until December 2010 and, it appears on this evidence, not repaid until the year after that.

There is another reason I do not accept the evidence of Mr Krishan. An email dated 17 October 2012 from Mr Krishan to Akhtar was tendered in evidence.[145] The email states:

Dear Professor Akhtar Kalam
I wish this mail finds you in good health.
I have paid you AUD$5,000 on 1st July 2010, which I have taken as a loan from you in cash. I take this opportunity to thank you once again for helping me during my financial crisis.

[145]Ex 44, Tab 183, p 965.

Mr Krishan would have it that it was mere coincidence that he sent this email confirming repayment of an alleged debt to Akhtar two years after the repayment. In cross-examination, the issue was raised:

And the reason you sent that presumably was a request from the professor to you?---No, nobody requested it.
So this just came totally out of the blue?---I just thought, because to notify, just to remind him. Nobody asked for it. [146]

[146]T268.7 - 268.11.

By 17 June 2012, Akhtar had received Jawad’s statutory declaration denying that Akhtar had repaid any money concerning the property transactions; the issue of repayment at the time was live. I cannot accept that Mr Krishan, unilaterally, at this time, coincidentally decided to provide an email confirming repayment after two years, just to remind Akhtar that he had been repaid the debt. I do not accept Akhtar’s explanation that the email of Mr Krishan was sent ‘to clear his books’.[147] In the context of the two year gap, this is unbelievable. The email is more likely explained by some form of collusion between Akhtar and Mr Krishan to enable Akhtar to provide a response to Jawad’s statutory declaration.
[147]T274.21 - 274.23. Mr Collins accepted in final submissions that it is likely Akhtar made some form of request to Krishan (at T368.18).

I also do not accept the evidence of Akhtar that $5,000 was added to the $8,000 and that this was provided to Jawad. In my opinion, this evidence is consistent with the type of conduct that Akhtar undertook in respect to the SRO in an attempt to avoid stamp duty – that is, relying on limited records that demonstrate a withdrawal of cash funds and then inventing a version of events based on the withdrawal in an attempt to demonstrate repayment to Jawad.

In my opinion, the evidence does not demonstrate Akhtar has repaid any money concerning the Rockhampton Property or Moonee Ponds Property to Jawad. Clearly, there was a payment of some money by Akhtar to Jawad on the occasion of his second daughter’s wedding in Karachi. On balance, I do not accept that payment had anything to do with the financial transactions concerning the Australian properties. In my opinion, such payment is more likely to be associated with the tradition of family members making a contribution to wedding expenses.[148]
[148]T62.3 - 62.6.

Mr D.G. Collins QC, senior counsel for Akhtar, submitted that Jawad had made little or no contribution to the weddings of Akhtar’s daughters.[149] He submitted the evidence demonstrated the Indian custom is to give money to the couple or the parents of the couple to assist in marriage expenses. When there is a wedding on the side of the giver the amount is reciprocated with an additional amount.[150] Thus it was put there was no reason for Akhtar to make a substantial contribution Jawad’s daughters’ weddings. I accept the evidence of the custom as it concerns contributions to wedding expenses. I do not accept that Akhtar paid $13,000 to Jawad in Karachi on the occasion of Jawad’s daughter Sana being married in July 2010. I accept the evidence of Jawad that the payment was $8,000; I have previously indicated I do not accept the evidence of Akhtar that this payment was related in any way to the repayment of a gift or loan from Jawad to Akhtar. As stated above, if it were such a repayment I do not believe Akhtar would have forgotten it in preparing his statutory declarations for the SRO. I consider it most likely represents a payment towards wedding expenses and was provided to Jawad for this reason only. Some emails tendered in evidence suggest Jawad had financial difficulties around this time. On 19 March 2009, an email from Ashraf to Jawad (forwarded by Jawad’s son, Junaid) referred to arrangements for $15,000 to be remitted from Akhtar to Jawad.[151] On 18 March 2009, Jawad emailing Ashraf, referred to, ‘reluctant to the wedding (sic) also because of the unavailability of funds anywhere’ and ‘business conditions are not the best desired at the moment and I am not in position to undertake a wedding at this stage’.[152] It may be that Akhtar’s payment concerned a contribution to overcome these financial difficulties and Jawad’s reluctance to agree to his daughter’s wedding. It may be the amount reflected the size of payments made by the Alkemal Trade Organisation, of which Jawad was a partner,[153] towards Akhtar’s daughters’ weddings. Whatever the reason, I am not satisfied the contribution of $8,000 by Akhtar had anything to do with the repayment of the $25,000 that concerned the Rockhampton Property.

Did Jawad make a financial contribution of $25,000 at the time of purchase of the Moonee Ponds Property?

[149]T349.8.

[150]T61.31 – 62.14.

[151]Ex 40, Tab 168, p 932.

[152]Ex 40, Tab 168, p 932 – 933 and T117.4

[153]T117.8 – 117.29

As stated previously, Jawad alleged that at the request of his father, he provided an additional $25,000 ‘so that the Moonee Ponds Property could be bought’.[154] He said he had no discussions with Akhtar; his father asked him to send the money to Akhtar, so he just sent the money.[155]
[154]Paragraph 16 of Plaintiff’s Reply and Defence to First Defendant’s Counterclaim; T44.3 - 44.5.
[155]T44.6 - 44.13.

In cross-examination, he said his father and possibly Akhtar told him the Rockhampton Property had been sold and Akhtar was moving to Melbourne.[156] Later in his evidence, Jawad said he found out about the sale of the Rockhampton Property only after Akhtar had moved to Melbourne.[157] Jawad agreed in cross-examination that he now knew the Rockhampton Property was sold in 1984, but he did not know the sale price prior to the commencement of this hearing.[158] He now knew the Rockhampton Property was sold for $67,000 and the Moonee Ponds Property was purchased for $58,000. Thus, it was put to him in cross-examination, there was no need for the $25,000 and that this payment was not only unnecessary, but the fact of it was untrue. Jawad in response stated that, ‘[t]he money was required as per the statement of my father to me’.[159]
[156]T95.17 - 95.26.
[157]T97.19 - 97.25.
[158]T97.26 - 97.30.
[159]T99.5 - 99.22.

As stated previously, Akhtar denied he received a further payment for the purchase of the Moonee Ponds Property from Jawad or that he needed such a sum to purchase the Moonee Ponds Property.[160]
[160]T205.8 - 205.13.

There are, on my assessment, two key matters of evidence that support Jawad’s claim that he provided an additional $25,000 towards the purchase of the Moonee Ponds Property:

(i)Akhtar has previously sworn that Jawad did provide $25,000 towards the purchase of the Moonee Ponds Property; and
(ii)Akhtar ensured Jawad was registered as a joint proprietor of the Moonee Ponds Property at the time of its purchase.[161]

[161]I also note that Jawad was also originally inserted in the Contract Note for the purchase of the Moonee Ponds Property as a ‘co-purchaser’.

I have referred to the statutory declarations of Akhtar to the SRO where he alleged Jawad provided $25,000 ‘by way of finance’ for the purchase of the Moonee Ponds Property. The assertions of Akhtar were unequivocal.[162] As has been referred to, Akhtar later provided a statutory declaration deposing that Jawad did not make a contribution to the Moonee Ponds Property and that the only contribution of Akhtar was $25,000 towards the purchase of the Rockhampton Property. This later position of Akhtar was a response to the statutory declaration of Jawad dated 19 June 2012 where Jawad deposed he had provided an additional $25,000 to the purchase of the Moonee Ponds Property.[163]
[162]See paragraphs 51, 54, 63 and 65.
[163]Ex 9, Tab 63, p 155.

The change in Akhtar’s position may be seen to be a further example of his lack of credibility in adopting a version of events that he considered best suited his own interests after seeing Jawad’s response, rather than telling the truth.

I have rejected Akhtar’s explanation as to why he placed Jawad’s name on the Title – to provide protection for Jawad and ensure the return of $25,000 in case of his death.[164] It was submitted by counsel on behalf of Akhtar that Jawad’s apparent disinterest in the property transactions of which he states he had a material interest demonstrated that Jawad was not telling the truth. It is not a submission I accept. At one stage of his evidence, as referred to previously, Akhtar stated that Jawad was a multi-millionaire, and that he did not have time to be on the Title.[165] The implication of Akhtar’s evidence was that because of Jawad’s wealth, these matters were trivial and of little concern. This is one explanation for his lack of involvement and specific knowledge of the detail of the land transactions. More important in my judgment is Jawad’s consistent evidence that he did what he was asked, without question, by his father – this was a family investment and, as a consequence, he had no reason to question it or follow up. On balance, I find the evidence of Jawad concerning this matter was more reliable, more consistent, more plausible and less likely to be concocted than that of Akhtar.
[164]See paragraph 32. I note, as discussed below, Akhtar had no similar concerns for alleged borrowings from his nephew, Arif, and his brother, Ashraf.
[165]T158.5 - 158.9.

To reiterate my opinion, the more likely course of conduct is that Jawad’s name was placed on the Title because of the representations of the father; it reflected what was originally intended as between Jawad, Akhtar, and their father, in respect to the Rockhampton Property; and also because Jawad provided a further $25,000 in funding towards the purchase of the Moonee Ponds Property.

When was it repaid?---2006, I think.[211]

[211]T276.2 - 276.7.

No other details of the transaction between Ashraf and Akhtar were provided by Ashraf. Why were the funds provided? What role, if any, was played by the then head of the family, the father, in arranging the finance? What was said by Akhtar to Ashraf as to why he needed the money? What arrangements were made at the time of provision of the money for repayment? Ashraf was cross-examined on these issues as follows:

In relation to the house at Moonee Ponds are you aware of whether that house was renovated?---No.
Are you aware of whether there was any new construction?---No.
In relation to the house at Moonee Ponds, you said before that you have advanced money to Akhtar?---I have given the money to him you know.
Yes and I put it to you that you have discussed that with Akhtar since you have come back to Australia?---No.
And that in fact there was no money advanced by you and no money repaid?
---No.[212]

[212]T295.6 - 295.16.

What I have set out is the totality of Ashraf’s evidence concerning the alleged provision of $30,000 to Akhtar. Apart from Akhtar’s statement of, ‘[m]y elder brother Ashraf decided to put $30,000 contribution’,[213] there is no other evidence confirming Ashraf’s contribution.
[213]T160.16 - 160.17.

Apart from Akhtar’s evidence to this Court, there is nothing to support the provision of $25,000 from Arif.[214]
[214]Arif was not called to give evidence, and there was no explanation for his failure to give evidence.

It is appropriate to summarise the reasons why I do not accept that Arif and Ashraf made loans to Akhtar:

(a)there are no contemporary records, documents, emails or other correspondence that in any way verify the provision of the loan money or repayment;
(b)Akhtar provided inconsistent evidence concerning when he received the finance from Arif and Ashraf. Initially he stated that it was in 1992 upon entering the building contract, but later in evidence he stated he could not recall;
(c)Akhtar stated his ‘moral conscience’ demanded he place Jawad’s name on the Title to secure repayment of Jawad’s gift of $25,000 to the purchase of the Rockhampton Property. It is incongruous that no such concerns were held for the repayment of significant borrowings from Arif and Ashraf;
(d)Akhtar’s evidence that Jawad’s name was placed on the Title because of fears of a premature death and the hereafter is inconsistent with borrowing years later significant sums from his brother and nephew with no such concerns;
(e)the repayment of $55,000 in 2006 by Akhtar to Arif and Ashraf is inconsistent with what Akhtar portrayed as his earnest desire to repay Jawad $25,000 (outstanding since 1982) and his inability to pay stamp duty on the property in 2001 when informed this was required;[215]
(f)Akhtar’s inconsistent evidence concerning sources of his alleged savings, and the alleged amount of those savings, at the time of the construction of the new house on the Moonee Ponds Property;
(g)the failure to call Arif to give evidence of the alleged provision of finance of $25,000;
(h)the unreliability of Ashraf’s evidence concerning the alleged provision of finance of $30,000;
(i) the unreliability of Akhtar’s evidence overall.

[215]T262.17 – 262.18 and T167.10 – 167.13.

In my opinion, the more likely source of the $50,000 referred to by Akhtar is Jawad. His version of the provision of $50,000 to Akhtar is consistent. His first opportunity to provide an account of his financial contributions concerning the purchase of the Rockhampton Property and the purchase of the Moonee Ponds Property was his statutory declaration dated 19 June 2012.[216] He deposed then to the provision of $50,000 finance to Akhtar for the renovation of the Moonee Ponds Property. This was also his evidence in this proceeding. I do not think it is coincidence that he referred to the sum of $50,000 in June 2012. In my opinion, it is more likely on the evidence that this represents the $55,000 Akhtar alleges he borrowed from Arif and Ashraf.
[216]Ex 9, Tab 53, p 155.

The signed Transfer Form

A further issue in this trial concerned the Transfer Form signed by Jawad in June 2001. Jawad seeks an injunction restraining Akhtar and Shamsha from lodging the Transfer Form. Akhtar relies on the signed Transfer Form in his counterclaim.[217]
[217]Paragraphs 39 and 40 of First Defendant’s Amended Defence and Counterclaim.

In his Statement of Claim, Jawad alleges he signed the Transfer Form in 2009.[218] In evidence-in-chief, Jawad was referred to an email he wrote on 23 June 2001 which concerns the Transfer Form.[219] This email confirmed the postage by Jawad to Akhtar of papers that had been sent to him, including the signed Transfer Form.
[218]Paragraph 11 of Plaintiff’s Statement of Claim.
[219]Ex 11, Tab 54, p 194.

Jawad was questioned as to the divergence in dates concerning when he signed the Transfer Form. He said it was his original memory that the signing occurred in 2009.[220] He accepted that it was in fact signed and returned by him in 2001.[221] Jawad explained the difference as a lack of memory. The time difference is significant. However, it was not contended on behalf of Akhtar, and I could not find, any ulterior motive for Jawad’s diversions in dates concerning the signing of the Transfer Form.[222]
[220]T52.2 – 52.4 and T108.17.
[221]T80.15 – 80.19.
[222]One explanation for Jawad’s confusion in dates may be an approach by Akhtar to Jawad to sign the Transfer of Land in or about June 2010. This is what Akhtar deposed in his statutory declaration to the SRO of 15 June 2012 (see Ex 8, Tab 52, p 154.1, paragraphs [9]-[11]). Apart from the tender of the statutory declaration, this topic was not the subject of evidence.

Jawad stated that he had discussions with Ashraf concerning the signing of the Transfer Form, but had no discussions with Akhtar.[223] Jawad said Ashraf informed him the law in Australia was being changed and foreigners would not be allowed to own land in Australia.[224] He said he was informed that when the property was sold, it would be easier to transfer.[225] Jawad stated that he understood the law had not been changed at the time he signed the Transfer Form.[226] Mr Collins put to Jawad that he had previously sworn in his statutory declaration of 19 June 2012 that the law in Australia had changed.

10.Some time in 2009 Mr Akhtar Kalam through an elder sibling then residing in Hong Kong under false pretence of the law having changed to not allow foreigners to own property in Australia had me sign a blank transfer of land document.[227]

[223]T52.16 - 52.23.

[224]T52.27 – 52.29.

[225]T53.1.

[226]T108.27.

[227]Ex 9, Tab 53, p 155.

Jawad agreed he would have been responsible for this statement in his statutory declaration. He said the law in Australia ‘… was going to be changed…it hadn’t been changed’.[228] Jawad said he signed it ‘in anticipation of the sale and there was no need for it to come back and forth’.[229] In further cross-examination, Jawad stated he never asked how much was expected as a sale price for the Moonee Ponds Property, whether it was on the market, and he heard nothing about the sale or any other change in the law in Australia concerning property ownership for 11 years.[230] Jawad again denied Akhtar had spoken to him about transferring the Moonee Ponds Property in Shamsha’s name.[231] He denied a conversation with Akhtar after he had returned the Transfer Form to Akhtar to the effect that Akhtar would wait until he had repaid Jawad ($25,000) before he lodged the Transfer Form.[232]
[228]T109.4 – 109.7.
[229]T109.9 – 109.10.
[230]T109.14. 109.25.
[231]T110.24.
[232]T111.22 - 111.30.

Akhtar stated he initiated the preparation of the Transfer Form after a discussion with Mr Mantoo who had told him it would be best to have his wife’s name on the Title.[233] Akhtar said after he received the Transfer Form from Mr Mantoo, he signed it and then sent it to Jawad in the Hong Kong office.[234] It is apparent at this time, Akhtar was aware that Jawad did not reside in Hong Kong, but in fact resided in the Philippines.[235] Ashraf resided in Hong Kong. Akhtar stated he had a ‘conversation with my elder brother, Ashraf, and he [Ashraf] knew that this letter was coming’.[236] Akhtar said he informed Ashraf of the steps he was taking to change Jawad’s name to Shamsha’s name on the Title. He did this, he said, because the father had died in 1995 and Ashraf was now head of the family.[237]
[233]T163.27 – 163.28.
[234]T164.25.
[235]See evidence of Mr Mantoo at T137.23.
[236]T167.22 - 167.23.
[237]T168.4 - 168.8.

Akhtar said Jawad was happy to sign the Transfer Form. Akhtar alleged Jawad said to him that, ‘I never wanted to be in the [T]itle in the first place’.[238] Akhtar stated that he sent the Transfer Form with the same biro he had used to sign his name.[239] Akhtar said he received the signed Transfer Form back from Jawad. He was unable to recall if Jawad’s signature was witnessed.[240]
[238]T168.1 - 168.2.
[239]T164.28 - 164.31.
[240]T166.10 - 166.11.

Ashraf was asked about conversations with Jawad in evidence-in-chief. The questioning was as follows:

Mr Kalam, did you ever say to your brother Jawad the following, that the law of Australia was being changed, that foreigners again would not be allowed to own land in Australia?---No.
Did you ever tell him that?---No, never.
Or words similar to that?---No, never.[241]

[241]T276.14 - 276.19.

In cross-examination, Ashraf contradicted Akhtar’s evidence that the document had been sent to Hong Kong - ‘…no, not to Hong Kong, I think directly to the Philippines’.[242] He agreed the brothers would discuss everything, but denied there had been a particular discussion between Jawad and him concerning the Transfer Form.[243] Ashraf said he was aware that Jawad was a co-owner of the Moonee Ponds Property.[244]
[242]T290.31 – 291.1.
[243]T291.2 - 291.11.
[244]T291.27.

Mr Mantoo identified the Transfer Form, but for the signatures, as the document prepared by his office, a copy of which was tendered.[245] He said he received the signed Transfer Form back from Akhtar, including the signatures of the witnesses. As noted above, Mr Mantoo did not lodge the Transfer Form on Akhtar’s instructions because of concerns relating to stamp duty. Mr Mantoo provided the Transfer Form back to Akhtar some years later, informing Akhtar he could lodge the document whenever he was ready.[246]
[245]Ex 12, Tab 55, p 196 and T135.23 - 135.30.
[246]T138.23 - 138.30. As referred to above in paragraphs 48 – 49, Mr Mantoo’s evidence in fact demonstrated that Akhtar wished to lodge the Transfer Form in 2001; the idea of reimbursement of Jawad was at the time not a relevant concern for Akhtar. It was only the payment of stamp duty that prevented the lodging of the Transfer Form at that time.

Jawad contended the Transfer Form he received was blank. I do not accept this evidence. The evidence of Mr Mantoo that the Transfer Form with the typed or printed information was what was provided to Akhtar is straight forward. I am satisfied this was the document subsequently received and signed by Jawad.

On 23 July 2012, the Transfer Form was lodged and stamped by the Titles Office.[247] That document contained handwritten amendments. Under the heading, ‘Consideration’, the words ‘being entitled in equity’ has been added in handwriting and the name ‘Akhtar Kalam’ has been inserted under the heading, ‘Directing Party’.
[247]Ex 5, Tab 37, p 132.

In opening Akhtar’s case, Mr Collins stated the reason for these alterations ‘was to show a transfer by direction and for consideration as between the registered proprietors and the directing party. That was for stamp duty purposes, and that was done while the solicitors were dealing with the stamp duty’.[248] No evidence was actually led from Akhtar concerning the written changes to the Transfer Form. Jawad has not initialled the handwritten changes, nor is it possible that the witness to the transferees’ signatures (Akhtar and Jawad) could have witnessed both. As referred to above, Akhtar in fact sent a biro to Jawad and asked Jawad to return it with the signed Transfer Form so it could be used for further signatures. This was an attempt to avoid any questions of irregularity concerning the signing of the Transfer Form. For these reasons, the Transfer Form does not comply with the Instruments Act.
[248]T130.17 - 130.21.

I have already determined, contrary to Akhtar’s evidence, that at the time of preparation and signature of the Transfer Form, he was intent on lodging it, irrespective of reimbursement of any payment to Jawad. There are other aspects of Akhtar’s evidence that are contradictory concerning the signing of the Transfer Form.[249]
[249]As previously stated at paragraph 158, Jawad’s account also contains contradictions.

Akhtar knew Jawad resided in Manila, yet he sent the Transfer Form to Hong Kong. I think it likely this was a deliberate step by Akhtar. The Transfer Form was sent to Ashraf in Hong Kong for forwarding to Jawad by Ashraf.

As previously stated, Ashraf said the Transfer Form was not sent to Hong Kong, but was sent direct to the Philippines, and there was no discussion with Jawad about the Transfer Form. I do not accept this evidence. . I believe the more likely scenario to be that Akhtar (as he stated) sent the Transfer Form to Ashraf, knowing that Ashraf, in turn, would pass the document to Jawad. In my opinion, the likely reason for this is Akhtar needed a message conveyed to Jawad by the head of the family. The more likely course of events is that Ashraf conveyed to Jawad the Transfer Form and told him why he should sign it. In assessing Ashraf’s evidence, it may be that these contradictions are explained by loss of memory. I consider it is more likely, on my assessment of him and the evidence, to be an attempt by an elderly witness to say something that he believed would assist Akhtar’s case.

Jawad’s evidence of a discussion with Ashraf concerning the Title and the reason for signing the Transfer Form is more likely to be correct. In considering this evidence and what, in my opinion, are the significant discrepancies between the evidence of Akhtar and Ashraf, I think it more likely than not that Ashraf informed Jawad that he should sign the Transfer Form because of anticipated changes in Australia law that would have restricted the ability of non-Australian citizens to own land in Australia.

I do not accept Akhtar’s evidence that he had a conversation with Jawad concerning the signing of the Transfer Form where Jawad said he did not want to be on the Title. The alleged willingness of Jawad to sign the Transfer Form is, I consider, inconsistent with the forwarding of the document to Hong Kong by Akhtar and his conduct of using Ashraf as an intermediary. In rejecting Akhtar’s evidence on this point, I also have regard to my finding that Akhtar was, up until being informed by Mr Mantoo of the necessity to pay stamp duty upon lodging, minded to lodge the Transfer Form irrespective of repaying Jawad $25,000.

The difference between Jawad’s statutory declaration dated 19 June 2012 that Australian law concerning ownership of land by a foreigner had changed as opposed to his evidence in this proceeding that the law was to be changed is, in my opinion, in the overall context of the issues in this proceeding, a relatively minor matter. Of more significance is the point made in cross-examination that Jawad never made an inquiry about the potential sale or value of the Moonee Ponds Property between 2001 and 2011. Such disinterest is not consistent with a person having a joint share in a property. Yet in considering this particular aspect of the evidence, I have regard to the overall account of events provided by Jawad that has been generally consistent. Further, the evidence of Akhtar referred to above that Jawad was wealthy and too busy to concern himself with this type of transaction may also provide an explanation. In considering Jawad’s evidence, I have particular regard to his response to the draft statutory declaration that was forwarded to him by solicitor for Akhtar in May 2012.[250] That statutory declaration contained many inaccuracies and was a further attempt by Akhtar to deceive the SRO so as not to pay stamp duty. Email correspondence between Jawad and Mr Simon Begg, Akhtar’s solicitor, leading up to Jawad providing his statutory declaration in response indicates Jawad had a concern that Akhtar’s version of events was false and he requested that nothing be filed until he had responded.[251] In considering these matters I also take into account the overall consistency of Jawad’s version of events.
[250]Ex 9, Tab 53, p 158.
[251]Ex 34, Tab 168, p 798.

Remedy

In the light of my findings above, I have decided that Jawad holds an interest in the Moonee Ponds Property, together with Akhtar as a tenant in common in equal shares of 50%. This decision is consistent with what, in my opinion, was always the intention of each of Jawad and Akhtar and their father in respect to the Rockhampton Property initially and then later the Moonee Ponds Property.

Jawad’s interest in the Moonee Ponds Property is not subject to any equity in favour of Shamsha. Rather, her interest in the Moonee Ponds Property is likely to be held on trust by Akhtar, such that any equitable interest in favour of Shamsha is determinable from Akhtar’s 50% share. The financial contributions of both Jawad and Akhtar to the Moonee Ponds Property, in my opinion, support a finding that each hold an equal interest in that property. These contributions are summarised below.

Jawad contributed $25,000 to the purchase of the Rockhampton Property on the understanding that he would be entitled to a 50% interest in that Property. Despite not being placed on the title of the Rockhampton Property, Jawad’s interest as a tenant in common entitled to 50% was held on resulting trust by Akhtar and Shamsha. The proceeds of sale of the Rockhampton Property were used to purchase the Moonee Ponds Property. Jawad then contributed a further $25,000 at that time and was placed on the Title as a co-proprietor. Jawad later contributed another $50,000 which was used to finance the building of a new house. On the evidence, Jawad and Akhtar have each contributed approximately 50% to the Moonee Ponds Property.

Jawad was cross-examined on his failure to pay rates or insurance for the Moonee Ponds Property.[252] I do not consider any failure by Jawad to pay rates adversely affects his entitlement to a 50% interest in the Moonee Ponds Property. Jawad has not lived in the house. It is not unreasonable that those living in the house and directly benefiting from the use of the land, being Akhtar and Shamsha, pay relevant rates and fees associated with that use.
[252]Jawad stated he contributed rates in the sum of $400 a year to the State Revenue Office at T104.28 – 105.8 and T123.10 - 123.16.

If evidence had been produced by Akhtar or Shamsha demonstrating an uneven or disproportionate contribution to the Moonee Ponds Property in circumstances where it was not intended that Jawad enjoy the benefits of such contributions, then there may have been scope to consider the imposition of a constructive trust to restore such contributions by way of equity. However, no such evidence was produced. It is my opinion that Jawad and Akhtar each intended and agreed to hold the Moonee Ponds Property in equal shares and their respective contributions to that property in the end appropriately reflect that intention.

I will hear from counsel in relation to orders. In my opinion, it is appropriate that the orders include the following declarations:

(i)Jawad’s joint tenancy with Akhtar in respect of the Moonee Ponds Property is severed;
(ii)Jawad holds an interest in the Moonee Ponds Property with Akhtar as a tenant in common in equal shares;
(iii)Jawad’s interest in the Moonee Ponds Property is not subject to any equity in favour of Shamsha;
(iv)an injunction be granted restraining the lodgement/registration of the Transfer Form; and
(v)the Title of the Moonee Ponds Property be amended to reflect Jawad and Akhtar being tenants in common in equal shares.

[2015] VSC 72

4 March 2015