Kucuktepe v Yildirim

[2012] VCC 1283

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-10-04445

MS FIDAN KUCUKTEPE	Plaintiff
v.
MR SINAN YILDIRIM	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	29-31 August 2012, 10 and 13 September 2012
DATE OF JUDGMENT:	20 December 2012
CASE MAY BE CITED AS:	Kucuktepe v. Yildirim
MEDIUM NEUTRAL CITATION:	[2012] VCC 1283

REASONS FOR JUDGMENT

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Catchwords:             Constructive trust – Plaintiff alleged her brother took money from under her bed – Later he agreed to invest the money for their mutual benefit – Caveat lodged over property purchased by brother – Allegations of taking money and agreement to invest for their mutual benefit denied by defendant – Whether plaintiff satisfied onus of proof.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F. Kucuktepe in person
For the Defendant	Mr P. Duggan	RRR Legal

HIS HONOUR:

1The plaintiff, Ms Fidan Kucuktepe, and the defendant, Mr Sinan Yildirim, are sister and brother. They are Kurdish people, having come to Australia from Turkey; Ms Kucuktepe in 1985 and her brother in 1996.

2When Mr Yildirim came to Australian he lived with Ms Kucuktepe and her daughter Serpil in their housing commission flat in Ascot Vale, for about eight months until Mr Yildirim moved to his own flat in Footscray. Later their mother also emigrated to Australia from Turkey and lived with her daughter and granddaughter until 2008.

3The dispute between the brother and sister which has led to the present proceeding arose from events in October/November 2001. Ms Kucuktepe alleges that one afternoon, Mr Yildirim came to her flat and, without her permission, removed a large amount of cash, totalling about $110,000, that she had hidden under the mattress of her bed. At the time, Ms Kucuktepe and her daughter were not present, although Serpil said she arrived home from school as her uncle was leaving the flat with a bag under his arm.

4Ms Kucuktepe’s mother had been present in the flat when her son was alleged to have taken the money. Serpil said in evidence that when she came home, her grandmother told her that Mr Yildirim had taken Ms Kucuktepe’s money, although she also said, “He is going to do good things with it”. Serpil told this to her mother when Ms Kucuktepe arrived home.

5Soon afterwards, Ms Kucuktepe said she spoke with her brother. He admitted taking the money, but said he would invest it with funds of his own for their mutual benefit. Ms Kucuktepe said she eventually agreed to this proposal. In May 2002, Mr Yildirim purchased a property in Station Street, North Carlton. He told Ms Kucuktepe that he was using the money he had taken from the flat and money of his own. Ms Kucuktepe said that she transferred to him further sums, including $43,500 which she had on fixed deposit at the bank, and about $6,500 from her daughter’s bank account to assist with the purchase.

6Later in 2002, Ms Kucuktepe said she found out the property had only been purchased in her brother’s name and he refused to acknowledge that she had an interest in the property and refused to return her money. In 2009, Ms Kucuktepe consulted solicitors who placed a caveat over the North Carlton property, claiming an interest on behalf of Ms Kucuktepe which it was said arose as a result of a constructive trust.

7Mr Yildirim denied that he had ever taken money from his sister’s flat and that he had ever agreed that she would have an interest in the North Carlton property.

8The proceeding raises the issue of whether Mr Yildirim received money from Ms Kucuktepe in circumstances which entitle her to an interest in the North Carlton property or to an order for the return of the money. The essential factual matters for determination are:

a.in October/November 2001, did Ms Kucuktepe have a large amount of cash under the mattress of her bed;

b.did Mr Yildirim remove the cash from the flat;

c.in subsequent discussions, did Mr Yildirim:

i.acknowledge that he had taken the money;

ii.agree to invest the money with funds of his own for their mutual benefit;

d.when Mr Yildirim purchased the North Carlton property in May 2002:

i.did he use Ms Kucuktepe’s money; and

ii.was the purchase a joint investment pursuant to their earlier agreement;

e.did Mr Yildirim, at other times, acknowledge that he had taken Ms Kucuktepe’s money and promise to return it?

9When the proceeding commenced in 2010, Ms Kucuktepe was represented by solicitors. The solicitors withdrew in June 2012. At the hearing, Ms Kucuktepe presented her case, at times using the services of an interpreter. She gave evidence herself and called two other witnesses – her daughter and a friend, Gultekin Dolas. Mr Yildirim gave evidence, but called no other witnesses.

10The presentation of the case was less than satisfactory because Ms Kucuktepe was unrepresented and because no coherent explanation was given as to her mother’s inability to give evidence. The evidence of Ms Kucuktepe and her witnesses was not given as fluently as it might have been, if led by properly instructed counsel. The testing of Mr Yildirim’s evidence was considerably less rigorous than if he had been cross-examined by experienced counsel. Ms Kucuktepe’s submissions were of limited use and included assertions about Mr Yildirim’s personal conduct in respect of which no evidence had been given and which was of marginal relevance.

11It is not easy to make an assessment of the credibility of the witnesses. Ms Kucuktepe appeared as a witness and as an advocate in her own cause and placed considerable reliance upon the interpreter. The three older witnesses were brought up in a different culture and the plaintiff and defendant are related. In these circumstances, I consider that I should not place undue emphasis on the manner in which they answered questions. Frequently, the witnesses sought to anticipate where they thought the questions were leading. They constructed their answers accordingly, often volunteering extensive explanations rather than giving simple, direct answers.

12It is difficult therefore to accept or reject the evidence of any particular witness or to determine that a witness’s evidence on particular issues is to be preferred over another’s account. There is, however, some documentary evidence which assists in deciding what more probably might have occurred, although generally it has been difficult to form definite conclusions.

13My impression was that Serpil gave an honest account. I could not form any definite conclusion in relation to Mr Dolas. At times, Ms Kucuktepe’s evidence did not sound credible. Mr Yildirim’s evidence was generally unsatisfactory and much of his evidence I would regard as unreliable. He contradicted himself and at times appeared to make up the evidence as he was talking.

14It is necessary therefore to carefully examine the evidence on each of the critical issues raised by the case.

Is it likely that in late 2001 Ms Kucuktepe had a large amount of cash under her mattress?

15Ms Kucuktepe gave evidence that she had received money prior to 2001 from a number of sources:

a.from a property settlement in the Family Court in 1992, she had received $57,800, which after paying her lawyers’ costs, left about $43,000. She invested this sum on fixed deposit with Westpac. Ms Kucuktepe said that the $43,500 she gave to her brother on 22 May 2002 to assist with the purchase of the North Carlton property came from the fixed deposit monies and was not part of the money under the mattress;

b.in 1989, when Ms Kucuktepe was “forced to leave” her husband, she received Centrelink payments. Records of these payments are only available from 1995 to 2002 and disclose the following annual gross payments:

1995/96          $8,738

1996/97          $8,994

1997/98          $9,290

1998/99          $9,502

1999/2000      $9,733

2000/01          $10,449

2001/02          $10,690  

c.Ms Kucuktepe also received child support payments, which between 1991 and 2005 totalled $49,467.69, or an average of $3,533 per annum;

d.Ms Kucuktepe did sewing at home. When pressed in cross-examination to estimate the earnings from this work, she said, about $3,000 per annum or $60 per week;

e.Ms Kucuktepe regularly accompanied a neighbour to Crown Casino. The friend was a gambler on a reasonably large scale who enjoyed regular success. Ms Kucuktepe said she wagered much smaller amounts with some losses, which she minimised by quitting early if she was losing, and with significant winnings, which, again when pressed, she estimated at an average annual amount of $3,000 or $60 per week over many years. This evidence seemed inherently improbable;

f.in 2005, Ms Kucuktepe commenced employment as a security guard, although earlier she had a short period of employment as a cleaner.

16During the relevant period, up until 2001, Ms Kucuktepe said that she had few living expenses. Initially, she lived in a women’s refuge. She went overseas for a period, living with relatives. In Australia, she lived in a housing commission flat, paying only nominal rental. As a single mother, she received donations of food and other items, particularly from the Kurdish community.

17Ms Kucuktepe said that the money taken by her brother included about $6,800 which was her mother’s pension money and which was contained in a blue purse or wallet. Ms Kucuktepe said that later, when her brother was purchasing the Carlton property, she had also given him about $6,700 which was money she had been holding for her daughter in a Westpac account.

18If one accepts Ms Kucuktepe’s evidence that she had minimal expenses and saved virtually everything that she received, it is possible that by late 2001 she had accumulated about $A90,000 and small quantities of US dollars and German deutschmarks.

Did Mr Yildirim remove Ms Kucuktepe’s cash from the flat?

19The evidence that Mr Yildirim removed cash from the flat is as follows:

a.Ms Kucuktepe’s evidence that in late 2001 she kept a large sum of money under her bed which was missing after her brother’s visit;

b.Serpil’s evidence that she saw Mr Yildirim leaving the flat one afternoon with a bag under his arm;

c.Ms Kucuktepe and her daughter’s evidence that Ms Kucuktepe’s mother had told them Mr Yildirim had taken the money;

d.subsequent discussions between Ms Kucuktepe and Mr Yildirim about money including, as Ms Kucuktepe said, Mr Yildirim’s admission that he had taken the money and discussion about a proposed joint investment;

e.the note, apparently in Mr Yildirim’s handwriting, which Ms Kucuktepe said Mr Yildirim gave her about a week after he had visited the flat, which Ms Kucuktepe said recorded the sums taken by him;

f.the subsequent purchase of the North Carlton property in furtherance of the alleged arrangement and the advancement of other funds for that purpose from Ms Kucuktepe to Mr Yildirim;

g.the alleged conversation in 2008 or 2009 in the presence of Mr Dolas, in which Mr Yildirim is said to have agreed to repay the money to Ms Kucuktepe.

20I will deal with each of these matters in turn:

a.there is no objective evidence of any of these matters apart from the note containing figures apparently in Mr Yildirim’s handwriting. Serpil said that she had not been aware that her mother kept money under the mattress of her bed. It is possible that Ms Kucuktepe may have accumulated such a large sum of money. Ms Kucuktepe’s explanation for keeping it at home was not entirely clear. She said she feared losing her Centrelink payments, although she had deposited the divorce settlement monies in a bank account and had monies on fixed deposit on trust for her daughter. She referred to one account as her “secret ANZ account”. Ms Kucuktepe said that she did not worry about the risk of burglary as the flat was on the second floor and she had told no one about the money. Mr Yildirim admitted that he, himself, kept substantial sums at home although he had bank accounts. If I were otherwise satisfied that Mr Yildirim had taken the money, I would accept that the money must have been in the flat. However, it is difficult to find any support from Ms Kucuktepe’s uncorroborated assertion that, as she previously had the money, therefore her brother must have taken it.

b.according to Serpil, her uncle was a frequent visitor to the flat (up to four times a week) both before and after the occasion in late 2001. Mr Yildirim denied that he visited the flat more regularly than once a fortnight. Apart from what Serpil says she was told by her grandmother after she entered the flat, there is no direct observational evidence by Serpil which supports a conclusion that Mr Yildirim took money from the flat.

c.Ms Kucuktepe’s mother may have witnessed something. She did not give evidence at the trial. At the commencement of the trial, I refused to adjourn the trial, although it was apparent that if the trial proceeded, Ms Kucuktepe’s mother would not be able to be called as a witness. I gave brief reasons at the time for my decision. Essentially, Ms Kucuktepe said she did not know where her mother lived and has not spoken to her since about Christmas last year although her mother still lived in Melbourne and was apparently in touch with other family members. Mr Yildirim said he also did not know where his mother lived.

The issue of Ms Kucuktepe’s mother attending as a witness was not raised until very recently. The evidence of what Ms Kucuktepe’s mother said to Serpil or Ms Kucuktepe in late 2001 is hearsay evidence and would ordinarily be inadmissible. In certain circumstances, upon application by Ms Kucuktepe, the evidence might have been received. It is difficult to see how such an application could be successful in view of the fact that although Ms Kucuktepe’s mother lives in Melbourne, no contact has been made with her by either the plaintiff or defendant this year. It would be inherently unfair to admit hearsay evidence on such a critical issue where the evidence of the person who is alleged to have made the statement and witnessed the events which led to the statement, cannot be tested by cross-examination.

Further, in the further and better particulars of claim filed by the plaintiff on 6 June 2011, no mention is made of the presence of Ms Kucuktepe’s mother or observations she made. The particulars read as follows:

“The plaintiff had been keeping cash money representing her savings at home, primarily underneath her queen size bed between the mattress and base. In or about October/November 2011 the Plaintiff’s daughter, Serpic Kucuktepe returned home to discover that the Defendant leaving abruptly. He was holding what appeared to be a package under his sports coat. Upon returning home the Plaintiff was advised of this occurrence by the daughter and upon checking under her bed discovered that her cash money stored there had been removed”.

The evidence of Ms Kucuktepe’s mother is a matter upon which there has been reliance only in recent times. I propose therefore not to admit into evidence the statement Serpil said was made by her grandmother.

d.Ms Kucuktepe said that soon after the money went missing, she had conversations in which Mr Yildirim admitted that he had taken the money. He had given her a note setting out the amounts he took and had discussed how the funds would be used for a joint investment.

Serpil did not support her mother’s evidence, except to say that after the incident in October/November 2001, her mother spoke to her uncle by phone and he “came over” and “continued to visit regularly”. She said that there was “talk about investments” and “talk about amounts of foreign currency” and her grandmother, in her uncle’s presence, had asked Ms Kucuktepe, “Why did you forward any more money to him?”, apparently referring to later amounts given by Ms Kucuktepe to her brother. At the relevant time, Serpil was about 14.

e.the note is on a large pink “post-it” note. On one side, in what is said to be Mr Yildirim’s handwriting, is the following:

2,200 DM

2,081 US

90,000 AUS

6,800 (words follow in Turkish which translated mean “separate one (blue purse/wallet)”

[Underneath and offset to the right of the column of figures is a further figure, 6,000 (followed by words which translated mean “Australian Bank”)]

Ms Kucuktepe said that her brother gave her the piece of paper about a week after she said he had come to her flat in October or November 2001. Earlier, she had asked him how much he had taken, and he told her he would write it down. Ms Kucuktepe had written other calculations on the reverse side of the pink note relating to the money the defendant had taken or had been given later. She wrote similar figures on an orange post-it note which is also in evidence.

Serpil said she was not present at any conversations concerning the pink note. Mr Yildirim said the document was “most likely” in his handwriting. He said he could not remember writing the note or why he may have written it. He said he would have written “thousands and thousands of these notes” and perhaps he had left it at Ms Kucuktepe’s flat when he had lived there between 1996 and 1997.

f.the North Carlton property was purchased at auction by Mr Yildirim in May 2002. Serpil went to the auction with her uncle. She said there was nothing unusual about this. They were close and she often accompanied him to help because his English language skills were not very good at that time. Serpil said that after the auction they went to see her mother. There was discussion about “investing and making more money”.

g.Mr Dolas said that in the summer of 2008/09, he attended a meeting between Ms Kucuktepe and Mr Yildirim at a café at Highpoint Shopping Centre. Mr Dolas had worked on a human rights committee with Ms Kucuktepe and she had asked him to attend. During the meeting, Ms Kucuktepe had asked for money from Mr Yildirim. Mr Yildirim was unresponsive. Mr Dolas pushed him, saying, “It is obvious that she wouldn’t ask for the money if she hadn’t given it to you”. Mr Yildirim then allegedly said to his sister, “OK, I will give you the money”. Mr Dolas said he understood that the total amount involved was about $110,000. Ms Kucuktepe said that Mr Yildirim had said, “OK, I will pay” and also that, “All the money went into the house”. Mr Yildirim denied that any such meeting took place or that he could recall ever having met Mr Dolas previously.

Did Ms Kucuktepe and Mr Yildirim agree that the money Mr Yildirim had taken from Ms Kucuktepe would be used in a joint investment, and was the purchase of the North Carlton property a joint investment?

21The sequence of events according to Ms Kucuktepe’s evidence was as follows:

a.her brother, without permission or prior warning, removed a large amount of cash from her flat;

b.she immediately took steps to contact him and challenge him about his actions;

c.Mr Yildirim provided a written note confirming the amount he had taken;

d.Mr Yildirim proposed that he retain the money (which included money of her mother’s) and use it in an investment for their mutual benefit;

e.some months later in May 2002, Mr Yildirim proposed using the money as part of the purchase price for the North Carlton house;

f.Ms Kucuktepe advanced further funds including money in bank accounts in both her name, of about $43,500, and  monies on trust for her daughter of about $6,700, which she gave to her brother in cash.

22The purchase of the North Carlton home did proceed. Mr Yildirim said he provided all the funds himself from his own savings and borrowings. Soon after he came to Australia, he had bought a flat in Footscray (for the modest sum of $46,000, part of which he had borrowed and later repaid to the bank). The North Carlton house was a much more substantial investment. The purchase price was $543,000. The documents in evidence confirm that on 25 May 2002, he paid a 10 percent deposit. A few days earlier, he had opened a bank account at Westpac, depositing $30,000 (which was transferred from his sister’s term deposit) and $40,000. In March 2002, the sum of $70,000 was withdrawn from a bank account held by Mr Yildirim with the Bank of Melbourne. It was suggested that this money was the source of the amount of about $54,000 (together with two loans from Colonial of $350,000 and $84,400) needed to settle the purchase. It is unlikely that funds would have been withdrawn in March for a property bought at auction in May and settled in July. It is possible, however, that the funds withdrawn in March were deposited in another account and used at settlement.

23Mr Yildirim gave extensive evidence about his savings and the money he kept in cash at his home. Much of this evidence was unconvincing and it is likely Mr Yildirim exaggerated the extent of his earnings, his savings and any money he kept in cash at home. However, I do not consider that there is sufficient evidence from which to conclude that Mr Yildirim could not have completed the purchase of the North Carlton property without the $110,000 Ms Kucuktepe said he took from her flat and the further monies, including a payment of $43,500, she said she gave to him in May 2002. If the evidence that Mr Yildirim took money from his sister is not accepted, there is no independent evidence which would establish the investment arrangement apart from the vague recollection by Serpil that her mother and uncle had discussed “investing”.

24Ms Kucuktepe said that in furtherance of the agreement, she transferred additional funds to her brother, a cheque for $43,500 from the monies she had on fixed deposit in her own name and $6,700 in cash from the monies held on trust for her daughter.

25There are bank documents which confirm that there were accounts existing; in the case of Ms Kucuktepe’s account (no. 108620), as at 1 May 2002 in the sum of $43,153.79 together with accrued interest, and in the case of the trust account for Serpil (no. 11-2961), as at 29 December 1997 in the sum of $5,954.22 together with accrued interest.

26Bank account statements in Mr Yildirim’s name from May 2002 are in evidence. Ms Kucuktepe said the $43,500 from her term deposit was given to her brother as a bank cheque. The only sum shown as having been deposited in Mr Yildirim’s account, as a transfer from Ms Kucuktepe’s fixed deposit account (no. 108620), is the sum of $30,000. Ms Kucuktepe said the $6,700 from Serpil’s bank account was handed over in cash. There are deposits into Mr Yildirim’s bank account on 27 June 2002 (before settlement) of $20.49, as “interest paid on term deposit 112961”, and $6,466.47, as “principal paid on term deposit 112961”.

27Mr Yildirim gave evidence that at about this time Ms Kucuktepe wanted to purchase a new car. She asked him to pay for the car and said that she would reimburse him. The amount she asked for was initially $20,000. Mr Yildirim eventually paid on Ms Kucuktepe’s behalf the total sum of $30,000. Ms Kucuktepe reimbursed this sum. This was Mr Yildirim’s explanation for the deposit of $30,000 transferred from Ms Kucuktepe’s term deposit on 20 May 2002. At a further hearing, following the completion of the trial, Ms Kucuktepe produced a document dated 21 May 2002 which she said was a receipt for the payment of $23,000 cash for the purchase of a Toyota motor vehicle.

28Ms Kucuktepe gave evidence that she purchased a new car and that this transaction involved obtaining money from various sources. She said the purchase of the car was at the suggestion of her brother. This evidence about the transaction was difficult to follow and I am unable to determine whether the deposit of $30,000 in Mr Yildirim’s bank account was for a purpose other than reimbursing monies paid by Mr Yildirim for the purchase of the car. There is little support for the view that the transfer of $30,000 was a further advance towards the purchase of the North Carlton property or that any other monies (apart from amounts from Serpil’s bank account) were transferred, or paid by bank cheque, at that time by Ms Kucuktepe to Mr Yildirim for the purchase of the property.

29On 10 and 13 September 2012, I conducted further brief hearings in the proceeding via video link from Wangaratta. Although at the trial from 29-31 August 2012 there had been discussions in the evidence about the alleged transfer of funds from Ms Kucuktepe’s fixed deposit account (no.108620), there was little or no evidence about the transfer of monies from Serpil’s bank account to Mr Yildirim. Ms Kucuktepe had said that she had paid the monies in Serpil’s account to Mr Yildirim in cash, at the same time she transferred monies from her own bank account to Mr Yildirim by bank cheque. At the trial, Mr Yildirim did not give evidence about the receipt of money from Serpil. He appeared to deny the receipt of money from Ms Kucuktepe apart from the repayment of the money for the new car. There was also a vague reference by Mr Yildirim to having, at some stage, loaned money to Ms Kucuktepe for “dental treatment”.

30In the course of reviewing the evidence following the trial in August, I discovered the entries on Mr Yildirim’s bank statement showing the deposits into Mr Yildirim’s bank account on 27 June 2002 of $20.49 “interest” and “principal” of $6,466.47. Both entries were transfers from Serpril’s bank account no.112961. At the further hearing on 10 September 2012, I informed the parties that I would give them the opportunity to lead further evidence and/or make submissions on this issue.

31The hearing on 10 September 2012 was not particularly satisfactory and I fixed a time for a further video link. On 13 September 2012, Ms Kucuktepe again represented herself, with the assistance of an interpreter; Mr Yildirim was represented by his solicitor. Both parties submitted further written material to me which I agreed to take into account. No further oral evidence was received. The only explanation offered on behalf of Mr Yildirim for the transfer of money from Serpil’s account was that it may have been repayment of money advanced to Ms Kucuktepe for dental treatment. Both parties expressly declined the opportunity for there to be a further formal hearing in Melbourne to receive further evidence about this matter, or, indeed any other issue.

32On 13 September 2012, I also made orders removing Ms Kucuktepe’s caveat to allow settlement of a contract of sale of the Carlton property to proceed. Mr Yildirim’s solicitors were ordered to hold a sum equivalent to 50 percent of the net proceeds of the sale of the property. I had formed the view that Ms Kucuktepe would not have been entitled to recover a greater sum if she were to succeed with her claim. In considering this matter, I took into account a further written submission dated 11 September 2012 filed by Ms Kucuktepe.

33The further material submitted on 13 September 2012, apart from the repetition of earlier submissions or irrelevant material, was limited to the following:

a.bank statements for bank account no. 29047601 in the name of Mr Yildirim for the periods 25 February to 25 March and 20 May to 2 August 2012;

b.rental statement of G.A Thomson & Co (Carlton) Pty Ltd as at 20 February 2003 relating to the North Carlton property;

c.Commonwealth Bank, Westpac and Bank of Melbourne documents relating to accounts in the name of Mr Yilderim;

d.receipt dated 25 June 1997 for the payment by Mr Yildirim as a 10% deposit of $600 on 8/181 Geelong Road, Footscray;

e.test report and receipt for cash payment of $23,000 on 21 May 2002 for the purchase by Ms Kucuktepe of a Toyota motor vehicle.

34A number of matters currently remain unexplained on the evidence if it were to be accepted that, Mr Yildirim had taken her money without permission:

a.why Ms Kucuktepe did not demand its return, and why she was prepared to contemplate participating in a joint investment;

b.why relations between Ms Kucuktepe and Mr Yildirim appeared to return to normal so quickly after the alleged taking of the money;

c.why Ms Kucuktepe was content for the money allegedly taken to remain with Mr Yildirim for about 6 months before the North Carlton property was purchased;

d.why Ms Kucuktepe took no steps to recover her money or to protect her rights in relation to the North Carlton property until a caveat was lodged in 2009, although in late 2002 she was aware the property was only in her brother’s name;

e.why Ms Kucuktepe purchased a new car, apparently for $23,000 cash in May 2002, although she said she was at that time providing all her other savings to Mr Yildirim for the purchase of the North Carlton property.

Conclusion

35Ms Kucuktepe bears the onus of proof in relation to her claim in the proceeding that money taken by her brother or advanced to him was invested in a way that makes him a trustee in relation to the property, or alternatively that such monies should be repaid. Ms Kucuktepe also had borne the onus to establish a proper basis for the maintenance of the caveat over the North Carlton property.

36I have considerable reservations about Mr Yildirim’s evidence, particularly his explanation for the handwritten note containing the figures Ms Kucuktepe said represented the money he took from her flat. In this case, someone must be mistaken or not telling the truth. Serpil was 14 in 2001. Her direct evidence was limited, although obviously she believed her uncle took her mother’s money. In the intervening period, it is possible that what originally happened has been confused by subsequent discussion involving her mother and grandmother. Mr Dolas’s evidence was also limited, and Mr Yildirim’s denial that there was any such conversation with Dolas raised a direct conflict of evidence.

37As between Ms Kucuktepe and Mr Yildirim, there is only one possibility. One or other of them is not telling the truth. I consider, however, that in the circumstances the failure by Mr Yildirim to adequately explain the handwritten note on the pink slip of paper and the transfer of money from Serpil’s bank account to Mr Yildirim’s bank account on 27 June 2002 are not sufficient reasons to accept Ms Kucuktepe’s evidence about the taking of money and the use of that money and any subsequent advances, in the purchase of the North Carlton property.

38I am not satisfied that Ms Kucuktepe has sufficiently established that it is more probable than not that the events in late 2001 occurred as she described them or that later they agreed to enter into a joint investment which was realised in 2002 with the purchase of the North Carlton property.

39Accordingly, the proceeding will be dismissed.

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Certificate

I certify that these 15 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 20 December 2012.

Dated: 20 December 2012

Philippa Gilkes

Associate to His Honour Judge Anderson