Marley & Ormonde - [2021] FamCA 105

FAMILY COURT OF AUSTRALIA
Marley & Ormonde [2021] FamCA 105

File number(s): SYC 3012 of 2018

Judgment of: MCCLELLAND DCJ

Date of judgment: 11 March 2021

Catchwords: FAMILY LAW – PROPERTY – Equitable interests – Discrete issues – Where third parties to the marriage, the mother and brother of the husband, assert they have an equitable interest in the former matrimonial property of the husband and wife – Consideration given to whether the property is held on express, resulting or constructive trust for the third parties – Consideration given to whether the third parties are entitled to an equitable lien or charge over the property – Consideration given as to whether the husband and/or wife are indebted to the third parties – Where the wife makes an application under s 106B of the Family Law Act 1975 (Cth) that the Court should set aside agreements purportedly executed by the third parties and the husband in respect to monies alleged to be advanced to or on behalf of the husband in respect to the former matrimonial property – Consideration of bona fides of the purported agreements – Where determination of these discrete issues is necessary to ascertain the pool available for distribution between the husband and wife – Declaration made that one of the third parties has a beneficial interest by way of resulting trust in the property – No determination made as to the proportion of that interest – All other claims dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 79, 80, 90AE, 106B

Evidence Act 1995 (Cth) s 149

Real Property Act 1900 (NSW), s. 43

Limitation Act 1969 (NSW), s. 14

Conveyancing Act 1919 No 6 (NSW), s. 23C

Family Law Rules 2004 (Cth) r. 1.04

Cases cited:
Abrath v North Eastern Railway Co (1883) 11 QBD 440

Allen v Snyder (1979) FLC 90-656

Ashton v Pratt (No 2) [2012] NSWSC 3

Australian Guarantee Corp Ltd v De Jager [1984] VR 483

1           Bale v Mills (2011) 81 NSWLR 498

Baumgartner v Baumgartner (1987) 164 CLR 137

Beatty v Australia and New Zealand Banking Group Ltd [1995] 2 VR 301

2           Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37

Briginshaw v Briginshaw (1938) 60 CLR 336

Brown v Brown (1993) 31 NSWLR 582

Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26

Calverley v Green (1984) 155 CLR 242

Chalmers v Pardoe [1963] 3 All ER 552

Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353

Cook v Sirius International Insurance Corporation Australia Branch [2020] NSWSC 1631

3           Director General of Department of Community Services; Re Sophie [2008] NSWCA 250

Dullow v Dullow (1985) 3 NSWLR 531

Elias and Elias (1977) FLC 90-267

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95

Evans v Braddock [2015] NSWSC 249

GC NSW Pty Ltd v Galati [2020] NSWCA 326

Giumelli v Giumelli (1999) 196 CLR 101

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

Green v Calverley (1982) 8 Fam LR 770

Hewett v Court (1983) 149 CLR 639

Jackson v Crosby (No 2) (1979) 21 SASR 280

Jordan & Jordan (1997) FLC 92-736

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Lam v Lam [2016] VSC 298

McGlen-McLeod v Galloway [2012] NSWCA 368

McGregor v Nicol [2003] NSWSC 332

Miller v Sutherland (1990) 14 Fam LR 416

Minassian v Minassian [2010] NSWSC 708

Morris v Morris [1982] 1 NSWLR 61

Muschinski v Dodds (1985) 160 CLR 583

National Commercial Banking Corp of Aust Ltd v Hedley (1984) 3 BPR 9477

Nelson v Nelson (1995) 184 CLR 538

Noack v Noack [1959] VR 137

Ogilvie v Ryan [1976] 2 NSWLR 504

Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400

Pirovic v Barbieri [2020] NSWSC 1892

Saravinovska v Saravinovksa (No 6) [2016] NSWSC 964

Sivritas v Sivratas (2008) 23 VR 349

South Australia v Commonwealth (1962) 108 CLR 130

Strand & Strand (No. 2) [2018] FamCAFC 247

Swettenham v Wild [2005] QCA 264

Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

Traxys Europe SA v Balaji Coke Industry Pvt Ltd [2011] FCA 1132

United Pacific Finance Pty Ltd (Rec and Mgrs Apptd) v Govindasamy [2020] NSWSC 128

Vadisanis v Vadisanis (2014) 53 Fam LR 345

Vedejs v Public Trustee [1985] VR 569

Warner v Hung; Bellpac Pty Ltd (rec’s and mgrs apptd) (in liq) (2011) 297 ALR 56

Westpac Banking Corp Ltd v Sansom (1994) 6 BPR 13,790

Young v Queensland Trustees Ltd (1956) 99 CLR 560

Brendan Edgeworth et al, Sackville & Neave: Australian Property Law (LexisNexis Butterworths, 10th ed, 2016)

Carroll and Kopsen, ‘The Importance of full and frank disclosure in family law financial proceedings and the many consequences of non-disclosure’ (2017) 45(1) Federal Law Review 97

O’Dell E, ‘Liens, Necessity and Unjust Enrichment’ (2006) 57 Northern Ireland Legal Quarterly 288

Westlaw AU, The Laws of Australia (online) 29 Restitution, ‘29.1.10 Equitable Liens’

Number of paragraphs: 300

Date of hearing: 17-19 August 2020; 19-21 October 2020; 2 November 2020

Place: Sydney by web conference

Counsel for the Applicant: Mr Guterres

Solicitor for the Applicant: MistryFallahi Lawyers

Solicitor for the First Respondent: Mr Brown of Browns the Family Lawyers

Counsel for the Second and Third Respondents appearing on 17-19 August 2021: Mr Kaufmann

Solicitor for the Second and Third Respondents appearing on 19-21 October 2020 and 2 November 2020: Ms Johnson of Leigh Johnson Lawyers

ORDERS

SYC 3012 of 2018

BETWEEN:
MS MARLEY

Applicant

AND:
MR ORMONDE

First Respondent

MS ORMONDE

Second Respondent

MR B ORMONDE

Third Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

11 MARCH 2021

THE COURT ORDERS AND DECLARES THAT:
1.The Third Respondent is beneficially entitled, by way of a resulting trust, to an interest as a joint tenant with the husband in his right, title and interest in E Street, Suburb F NSW (“the Suburb F property”), being land comprised in folio identifier … to the extent to which the Third Respondent has contributed the sum of $780,000 towards the purchase price of the Suburb F property as may be adjusted by subsequent orders of the Court.
2.The husband’s Application in a Case filed 9 August 2020 is dismissed.
3.Prayer 4 of the wife’s Amended Initiating Application is dismissed.
4.The Second and Third Respondent’s Response to Initiating Application’s filed 9 August 2019 be otherwise dismissed.
5.The matter is listed for directions regarding the further progress of the matter on 23 April 2021 at 9.30am.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marley & Ormonde has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION

This decision is in respect to discrete issues concerning whether Ms Ormonde (“the Second Respondent”) and Mr B Ormonde (“the Third Respondent”) each have an interest in the property located at E Street, Suburb F (“the Suburb F property”) and/or are owed monies in relation to funds advanced to Mr Ormonde (“the husband”).
The Suburb F property is included in the property pool in the substantive proceedings concerning an Application for property adjustment between Ms Marley (“the wife”) and the husband. The determination of the issues before me is a necessary step to ascertaining the pool available for distribution between the husband and wife.
The Second Respondent, who is the mother of the husband, contends that she advanced the sum of $112,000 on behalf of the husband for the purpose of paying stamp duty in respect to the purchase of the Suburb F property and further that she advanced monies totalling $226,000 to the husband. In that respect, the husband and Second Respondent contend that the Second Respondent has an equitable interest in the Suburb F property and/or that the husband is under a legal obligation to repay her the funds pursuant to legally enforceable agreements.
In respect to the $112,000, the wife concedes that amount was advanced by the Second Respondent however, contends that the Second Respondent was, within a matter of weeks, reimbursed for an equivalent amount of money. The wife further contends that the Second Respondent has failed to discharge the onus which rests upon her of establishing that she has an equitable interest in the Suburb F property and/or that the husband is under a legal obligation to repay her the sum of $112,000.
The wife further disputes the Second Respondent’s assertion that, in the period subsequent to May 2016, she has advanced to the husband monies totalling $226,000. The wife further contends that, in the event of the Court finding that such sums were advanced by the Second Respondent to or on behalf of the husband, the funds were not advanced in accordance with an agreement purportedly signed between the husband and Second Respondents on 1 May 2016. The wife further contends that the surrounding evidence is such that the Court should, in any event, conclude that there was no intention to establish a legal relationship between the husband and Second Respondent which created a legal obligation on the part of the husband to repay those monies.
Similarly, the Third Respondent contends that, during the course of 2012, in order to assist the husband to purchase the Suburb F property, he advanced two separate sums of money being a sum of $230,000 in respect to paying the deposit on the Suburb F property shortly prior to the exchange of contracts in respect to the purchase and, subsequently, an additional amount of $550,000 shortly prior to the settlement of the purchase. In that respect, the husband and the Third Respondent contend that the Third Respondent has an equitable interest in the Suburb F property and/or the husband is under a legal obligation to repay the funds.
The wife concedes that an amount of $550,000 was transferred from the Third Respondent to the husband’s then solicitors, responsible for the conveyance of the property, shortly prior to the settlement of the purchase of the Suburb F property. However, the wife contends that those funds were sourced from funds that were in actual fact funds available to the husband, being proceeds from his late father’s estate, and disputes that the Deed of Agreement purportedly signed by the husband and Third Respondent on 20 July 2012, was in actual fact executed at that time or, more specifically, at a time prior to the settlement of the purchase of the Suburb F property such that the Third Respondent did not acquire an equitable interest in the property.
The wife disputes that the Third Respondent paid, on behalf of the husband, the sum of $230,000 in respect to the deposit required for the purchase of the Suburb F property. In that respect, the wife contends that, in circumstances where the Third Respondent has not complied with his obligations of disclosure, there is no adequate evidence before the Court that would enable the Court to find that, as a matter of probability, the amount had been advanced by the Third Respondent on behalf of the husband.
The wife’s Application is that, in the event of the Court finding that the nature of the arrangement between the husband and Third Respondent was not reflected in the Deed of Agreement which they purportedly signed on 20 July 2012, the Court would nonetheless find that, of the amount of $550,000 paid by the Third Respondent on behalf of the husband, the sum of $460,000 was a gift by the Third Respondent to the husband. This gift, it is contended, is confirmed in writing by documents which the husband provided or caused to be provided to J Bank, the financial institution that financed the balance of the purchase price for the Suburb F Property.
At the commencement of these proceedings, an issue arose as to the admissibility of relevant instruments reflecting what the husband and the Second and Third Respondents contend were the relevant agreements reached between them in respect to funds contributed by the Second and Third Respondents towards the purchase of the Suburb F property and for the payment of stamp duty. By separate judgment dated 18 August 2020,[1] I accepted those instruments into evidence on the basis of relevant undertakings that those documents would be forwarded to the Commissioner for Stamp Duties.
BACKGROUND
[1] [2020] FamCA 784
Brief history of the parties’ relationship
In 1968, the husband was born in the United States. He is currently aged 53 years.
In 1973, the wife was born in the United Kingdom (“UK”). She is currently aged 47 years.
On 9 January 1994, the parties met in the UK and, in November 1994, the parties commenced cohabitation.
The parties have five (5) children together:
(a)V born in 1995 and currently aged 25 years;
(b)W born in 1997 and currently aged 23 years;
(c)X born in 1999 and currently aged 21 years;
(d)Y born in 2010 and currently aged 10 years; and
(e)Z born in 2016 and currently aged four (4) years.
On 13 August 2003, the wife and husband relocated to Australia with their children. Prior to moving to Australia, the husband had established a successful business in the United Kingdom. He has since established such a business in Australia.
On 13 February 2017, the wife and husband separated on a final basis while living under the same roof.
On 12 December 2017, the wife vacated the former matrimonial home, the Suburb F property, and has since resided in rented accommodation with the parties’ two (2) youngest children, Y and Z. The children also spend time with their father.
After the birth of the parties’ first child, the wife did not work in paid employment until late 2018, following the parties’ separation.
Brief procedural history
On 14 May 2018, the wife commenced proceedings in the Federal Circuit Court of Australia.
On 28 May 2018, Judge Boyle made the following Order by consent:
8.Within 28 days the defacto Husband shall serve copies of his court documents to his mother and brother.
On 4 December 2018, the matter was transferred to the Family Court of Australia.
On 24 June 2019, Justice Henderson made procedural orders which included the following:
4. The second respondent is to provide to the solicitors for the wife copies of all bank statements she asserts contain proof of monies she provided to the husband and his family from 2012 until the end of 2017 within 28 days.
5. The third respondent is to provide to the solicitors for the wife copies of all bank statements he asserts contain proof of monies he provided to the husband and his family from 2012 until the end of 2017 within 56 days.
On 9 August 2019, Justice Henderson made the following orders:
3.The Court declares the de-facto wife has a caveatable interest in the Suburb F property and may lodge a caveat over that property.
4.Pending further order, the de-facto husband is injuncted and restrained from dealing with the property located at E Street, Suburb F NSW , being the whole of the land contained in Folio Identifier … (“the property) other than by agreement between himself and the de-facto wife, including but not limited to:
a.         Re-borrowing and using the property as security;
b.        Extending a line of credit secured the property;
c.         Increasing debt on the property.
…
6.In the event the de-facto husband seeks to sell any of the motor vehicles in his possession, he is to give the de-facto wife 7 days’ notice of his intention to dispose of those vehicles and thereafter, disposal of those vehicles is to be by consent of the de-facto husband and de-facto wife.
On 12 May 2020, I made the following order:
1. Pursuant to rule 10.13 of the Family Court Rules (“the Rules”), this matter is set down for hearing as a discrete issue concerning the interests, if any, of the Second and Third Respondents in the [Suburb F property], and/or any monies that require a payment to the Second and Third Respondents for funds advanced in respect of that property for three (3) days commencing 17 August 2020 at 10am.
Alleged interests of the Second and Third Respondents and corresponding property
The motor vehicle 1
On 2 April 2009, the Third Respondent contributed $50,000 towards the husband’s purchase of a motor vehicle 1, the total purchase price of which was $140,000. The husband and the Third Respondent both contend that this money was advanced as a personal loan and requires repayment. The wife disputes this and contends that the monies were provided as a gift. As will be discussed, the evidence does not satisfy the Court that the parties to the transaction intended to establish a legally enforceable agreement.
The Suburb F property
In October 2012, the parties purchased the Suburb F property in the sole name of the husband for $2,300,000. In order to do so, the parties received assistance from the Second and Third Respondents. The husband and Second and Third Respondents collectively contend that assistance was contributed as follows:
(a)On 26 July 2012, the Third Respondent paid 10 per cent of the purchase price of the Suburb F property, being an amount of $230,000, as an initial deposit into the trust account of the real estate agent acting on the sale;
(b)On 26 September 2012, the Second Respondent paid the sum of $112,000 into the trust account of the solicitors that acted on the sale with the intention of that amount covering the cost of transfer duty in respect of the purchase of the Suburb F property; and
(c)On 28 September 2012, the Third Respondent paid the sum of $550,000 into the trust account of the solicitors that acted on the sale to effect completion of the purchase.
The husband and Second and Third Respondents contend that the husband and the Third Respondent entered into a Deed of Agreement dated 20 July 2012 (“the First Deed” marked ‘Exhibit 2’ in the proceedings) which stipulates that the Third Respondent “will make cash contributions for the deposit and purchase of the [Suburb F] property totalling $780,024.06 in exchange for a 33.91 per cent share of the [Suburb F] property”. The First Deed further states:
Upon the sale of the [Suburb F] property, the proceeds of sale shall be divided as follows:-
[The husband] - 66.09%
[The Third Respondent] - 33.91%
except that any outstanding principal loan amount or arrears of payments under any mortgage in respect of the [Suburb F] Property shall be borne by [the husband] out of his share.
The husband attests to signing the First Deed on 20 July 2012 in the presence of a Mr L. The husband contends that he had met Mr L at a mobile coffee van located in a Business Park in Suburb M. The husband contends that he did not know Mr L and only ascertained the name “Mr L” by observing the name with which he signed the First Deed. The address listed for Mr L on the First Deed was, according to the husband, written by a woman working with Mr L and is the address of another nearby Business Park.
The First Deed records that the signature of the Third Respondent was witnessed by a person in N City on 20 July 2012. The Third Respondent states that he does not know who that person is.
The husband and Second and Third Respondents further contend that, similarly, the husband and the Second Respondent entered into a Deed of Agreement dated 1 September 2012 (“the Second Deed” marked ‘Exhibit 3’ in the proceedings) pursuant to which the Second Respondent was to “make cash contributions for the deposit, stamp duty and purchase of the [Suburb F] property totalling $112,000 in exchange for a 4.87 per cent share of the [Suburb F] Property, such share to be deducted from [the husband’s] share of the [Suburb F] Property”. The Second Deed sets out that:
Upon the sale of the [Suburb F] property, the net proceeds of sale shall be divided as follows:-
[The husband] - 61.22%
[The Third Respondent] - 33.91%
[The Second Respondent] - 4.87%
except that any outstanding principal loan amount or arrears of payments under any mortgage in respect of the [Suburb F] Property shall be borne by [the husband] out of his share.

According to the husband and the Second Respondent, on 1 September 2012, the signatures of both the husband and the Second Respondent were also witnessed by Mr L, and also in the same location being the coffee van at the Business Park to which I have earlier referred.
Limited Recourse Loan Agreement and Call Option Agreement
The Second Respondent contends that she provided monies to the husband and the wife, commencing in 2016, amounting to approximately $226,000 by way of loan however, attests that the initial loan amount was $222,600 in her Affidavits and also referred to that smaller amount in her response to the wife’s Notice to Admit Facts outlined below. The husband supports this contention, save for asserting that the total sum of monies loaned commencing in 2016 was $222,600. The inconsistency in the total sum of monies will be further addressed below.
The husband and the Second Respondent contend that they entered into two (2) written agreements in respect of the funds advanced by the Second Respondent: a Limited Recourse Loan Agreement dated 1 May 2016 (“the Limited Recourse Loan Agreement” marked ‘Exhibit 4’ in the proceedings) and a Call Option Agreement dated 1 May 2016 (“the Call Option Agreement” marked ‘Exhibit 5’ in the proceedings).
The Limited Recourse Loan Agreement required the Second Respondent to advance an initial loan amount, being $222,600, to the husband or as he otherwise directed in writing “by way of an unsecured interest-free loan”. Clause 1.1 of the Limited Recourse Loan Agreement defines the “Initial Loan Amount” as meaning “$222,600”.
Clause 4 of the Limited Recourse Loan Agreement provides:
Borrower Payments
The Borrower must pay each amount included in the Secured Moneys to the Lender:
(a) on the date fixed for payment of that amount under any written agreement between them: or
(b) if there is no written agreement or no date for payment is fixed, on demand in writing by the Lender.
Clause 5 of the Limited Recourse Loan Agreement provides:
Limited Recourse
(a) Notwithstanding anything contained in this deed or otherwise, the recourse of the Lender for payment of Secured Moneys will be limited to the Relevant Interest.
(b) For the avoidance of doubt, in the event that the Borrower fails to repay any of the Secured Moneys on time and in the manner required under this deed, the Lender may not seek to recover any amount from the Borrower other than the Relevant Interest.
The relevant interest is defined as 7.42 per cent of the Suburb F property.
The husband and Second Respondent contend that Clause 4 was activated when the Second Respondent sent to the husband separate letters of demand dated 8 June 2018 and 15 June 2018 (marked ‘Exhibit 13’ and ‘Exhibit 14’ respectively).
The husband and Second Respondent contend that, as a result of activating the obligation to repay the initial loan amount, the Second Respondent then has the option to exercise her power pursuant to the Call Option Agreement which the husband and Second Respondent contend was executed on 1 May 2016.
There is, as I will discuss below, considerable ambiguity in respect to the intended interaction between the Limited Recourse Loan Agreement and the Call Option Agreement. However, it appears to be contended that, in the event of the husband defaulting in respect to his obligation to repay monies pursuant to the Limited Recourse Loan Agreement, the Second Respondent has the “option” pursuant to the Call Option Agreement to require the Suburb F property be sold. In that respect, Clause 2 of the Call Option Agreement provides that exercise of the option is triggered by service of a written notice “substantially in the form” of a document annexed to the Call Option Agreement called an “Option Notice”.
It was initially the husband’s contention that such call option had been exercised by the Second Respondent however, in submissions in reply, he conceded that had not occurred.
APPLICATIONS
Orders sought by the wife
The orders sought by the Second and Third Respondents are set out below. The wife opposes those orders and instead seeks that the Court determines that the Second and Third Respondents do not have any interest in the pool of assets and liabilities available to the wife and husband. Specifically, the wife seeks that an order be made in accordance with proposed order 4 set out in her Amended Initiating Application filed 15 June 2018, as follows:
4)That pursuant to section 106B of the Family Law Act, 1975, the following Agreements be set aside:
(a)The Deed of Agreement between [the husband] and [the Third Respondent] dated 20 July 2012;
(b)The Deed of Agreement between [the husband] and [the Second Respondent] dated 20 September 2020; and
(c)The Call Option between [the husband] and [the Second Respondent] dated 1 May 2016.
Orders sought by the husband
By way of an Application in a Case filed 9 August 2020, the husband seeks the following orders:
1. That prayer 4 in the Amended Initiating Application filed 15 June 2018 be summarily dismissed
2. … That orders 3, 4 and 6 of the orders of this court of 9 August 2019 be discharged
3. That the wife shall forthwith remove any caveat lodged by her on the property located at [the Suburb F property].
4. costs
The husband did not, in these proceedings press orders 2 and 3 of his Applicant in a Case and the Court was not addressed on those issues. They have therefore not been considered in this decision.
The husband is in support of the Applications of the Second and Third Respondents.
Orders sought by the Second Respondent
The Second Respondent seeks that orders be made in accordance with the Minute of Order provided to the Court on 16 August 2020, as follows:
Equitable Interest
1.A declaration that the First Respondent holds his right title and interest in E Street, Suburb F NSW , being land comprised in folio identifier ... (the Suburb F property) as to 4.87% and a further 7.42% (the Second Respondent’s interest) on express trust for the Second Respondent.
2.In the alternative to Order l, a declaration that the First Respondent holds the Second Respondent’s interest in the Suburb F property on resulting trust for the Second Respondent.
3.In the alternative to Order l, a declaration that the First Respondent holds the Second Respondent’s interest in the Suburb F property on constructive trust for the Second Respondent.
4.A declaration that the Second Respondent is entitled to an equitable lien and / or equitable charge over the Suburb F property to secure payment to the Second Respondent of the monies expended by her on the acquisition the Suburb F property.
5.Order that the First Respondent pay the Second Respondent the equivalent to the Second Respondent’s interest in the Suburb F Property upon its sale.
Debt
6.Alternatively, a declaration that the First Respondent is indebted to the Second Respondent in the sum of $112,000 and / or $226,000 and/or such other or further amount as shall be declared by this Court as moneys loaned from time to time by the Second Respondent to the First Respondent and/or the App1icant, and not repaid at the date of the final determination of this matter, or alternatively as monies paid under a mistake or as monies had and received.
7.Order that the sum identified in Order 6 be paid to the Second Respondent.
Costs
8.Costs.
THE COURT NOTES the undertaking of the Second Respondent and Third Respondent to the Court to forthwith transmit to the Chief Commissioner the each of the Deeds and Agreements referred to in the affidavits of the Second Respondent and Third Respondent.
In support of her Application, in a Notice to Admit Facts and Authenticity of Documents filed 11 June 2020, the Second Respondent contends as follows:
1. The first respondent husband purchased E Street Suburb F NSW (“The Suburb F property”) in his sole name in 2012 for $2,300,000.
2. At the time of purchase of the Suburb F property the husband and wife did not have funds of their own sufficient to purchase.
3. On 26 July 2012 Mr B Ormonde (hereafter referred to as “[the Third Respondent]”), the husband’s brother, paid a 10% deposit on the Suburb F property being a sum of $230,000.
4. At the time of completion of the purchase of the Suburb F property [the Third Respondent] advanced a further $550,000 which was applied to the purchase of the Suburb F property.
5. That [the Second Respondent] the husband’s mother paid the sum of $112,000 into the trust account of P Lawyers to the costs of acquisition of the Suburb F property
6. That the applicant wife and first respondent husband used approximately $147,000 of their own funds, accumulated from employment/self-employment undertaken by the husband, towards the purchase of the Suburb F property
7. That the balance of the purchase price of the Suburb F property being an amount of approximately $1,320,000, was sourced by a loan obtained from J Bank secured by way of mortgage over the Suburb F property.
8. The total amount advanced by [the Third Respondent] towards the purchase of the Suburb F property was $780,000
9. The total amount advanced by [the Second Respondent] towards the purchase of the Suburb F property was $112,000
10. That prior to the completion of the purchase of the Suburb F property written agreements were prepared to record the interest of [the Second and Third Respondents] in the Suburb F property
11. That prior to the written agreements referred to in the previous paragraph being signed and after they were signed the first respondent husband showed them to the applicant wife
12. That [the Third Respondent] and the [husband] entered into a deed of agreement dated 20 July 2012 which recorded the interest of [the Third Respondent] in the Suburb F property being a 33.91 % share
13. That on 1 September 2012 [the Second Respondent] and [the husband] entered into a deed of agreement which recorded the interest of [the Second Respondent] in the Suburb F property being a 4.87% share
14. That at no time since [the Second and Third Respondent’s] paid money towards the purchase of the Suburb F property has that money or any part of it been repaid to them
15. That between May 2016 and November 2017 [the Second Respondent] advanced to the [husband] sums by way of loan totalling $222,600
16. That on 1 May 2016 [the Second Respondent and the husband] entered into a further written agreement, namely a Limited Recourse Loan Agreement and a form of Call Option agreement
17. That pursuant to the Limited Recourse Loan Agreement of 1 May 2016 [the Second Respondent] shall have the right to a further 7.42% interest in the Suburb F property in the event of default by [the husband]
18. That on 8 June 2018 [the Second Respondent] made a demand in writing for immediate repayment to her in full of monies advanced by her pursuant to the Limited Recourse Loan Agreement of 1 May 2016
19. That on 15 June 2018 [the Second Respondent] reiterated her demand (in writing) for immediate repayment to her in full of monies advanced by her pursuant to the Limited Recourse Loan Agreement of 1 May 2016
20. That [the husband] is in default of his obligations to [the Second Respondent] pursuant to the Limited Recourse Loan Agreement of 1 May 2016
21. Pursuant to the call option agreement of 1 May 2016 [the Second Respondent] is granted a five year option to acquire a 7.42% interest in the Suburb F property
Orders sought by the Third Respondent
The Third Respondent seeks that orders be made in accordance with his Response to Initiating Application filed 9 August 2019, as follows:
Equitable Interest
1. A declaration that the First Respondent [husband] holds his right title and interest in E Street, Suburb F NSW , being land comprised in folio identifier ... (the Suburb F property) as to 33.91% (the Third Respondent’s interest) on express trust for the Third Respondent.
2.In the alternative to Order 1, a declaration that the First Respondent [husband] holds the Third Respondent’s interest in the Suburb F property on resulting trust for the Third Respondent.
3.In the alternative to Order l, a declaration that the First Respondent holds the Third Respondent’s interest in the Suburb F property on constructive trust for the Third Respondent.
4.A declaration that the Third Respondent is entitled to an equitable lien and / or equitable charge over the Suburb F property to secure payment to the Third Respondent of the monies expended by him on the acquisition the Suburb F property and/or any additional amount equivalent to the Third Respondent’s equitable interest in the Suburb F property.
5.In the alternative to Order 1, 2 or 3, an Order that the Applicant and First Respondent [husband] pay the Third Respondent the equivalent to the Third Respondent’s declared interest in the Suburb F Property.
Debt
6.A declaration that the First Respondent [husband] is indebted to the Third Respondent in the sum of $50,000 and/or such other or further amount as shall be declared by this Court as moneys loaned on 2 April 2009 by the Third Respondent to the First Respondent and/or the Applicant, and not repaid at the date of the final determination of this matter.
7. Order that the sum identified in Order 6 be paid to the Third Respondent.
Costs
8. Order that the Third Respondent’s costs be paid.
In support of his Application, in a Notice to Admit Facts and Authenticity of Documents filed 9 June 2020, the Third Respondent contended as follows
1. The first respondent husband purchased E Street Suburb F NSW (“The Suburb F property”) in his sole name in 2012 for $2,300,000.
2. At the time of purchase of the Suburb F property the husband and wife did not have funds of their own sufficient to purchase.
3. On 26 July 2012 Mr B Ormonde (hereafter referred to as “[the Third Respondent]”), the husband’s brother, paid a 10% deposit on the Suburb F property being a sum of $230,000.
4. At the time of completion of the purchase of the Suburb F property [the Third Respondent] advanced a further $550,000 which was applied to the purchase of the Suburb F property.
5. That [the Second Respondent] the husband’s mother paid the sum of $112,000 into the trust account of P Lawyers to the costs of acquisition of the Suburb F property
6. That the applicant wife and first respondent husband used approximately $147,000 of their own funds, accumulated from employment/self-employment undertaken by the husband, towards the purchase of the Suburb F property
7. That the balance of the purchase price of the Suburb F property being an amount of approximately $1,320,000, was sourced by a loan obtained from J Bank secured by way of mortgage over the Suburb F property.
8. The total amount advanced by [the Third Respondent] towards the purchase of the Suburb F property was $780,000
9. The total amount advanced by [the Second Respondent] towards the purchase of the Suburb F property was $112,000
10. That prior to the completion of the purchase of the Suburb F property written agreements were prepared to record the interest of [the Second and Third Respondents] in the Suburb F property
11. That prior to the written agreements referred to in the previous paragraph being signed and after they were signed the first respondent husband showed them to the applicant wife
12. That [the Third Respondent] and the [husband] entered into a deed of agreement dated 20 July 2012 which recorded the interest of [the Third Respondent] in the Suburb F property being a 33.91 % share
13. That on 1 September 2012 [the Second Respondent and husband] entered into a deed of agreement which recorded the interest of [the Second Respondent] in the Suburb F property being a 4.87% share
14. That at no time since [the Second and Third Respondents] paid money towards the purchase of the Suburb F property has that money or any part of it been repaid to them
15. That between May 2016 and November 2017 [the Second Respondent] advanced to [the husband] sums by way of loan totalling $222,600
16. That on 1 May 2016 [the Second Respondent and the husband] entered into a further written agreement, namely a Limited Recourse Loan Agreement and a form of Call Option agreement
17. That pursuant to the Limited Recourse Loan Agreement of 1 May 2016 [the Second Respondent] shall have the right to a further 7.42% interest in the Suburb F property in the event of default by [the husband].
18. That on 8 June 2018 [the Second Respondent] made a demand in writing for immediate repayment to her in full of monies advanced by her pursuant to the Limited Recourse Loan Agreement of 1 May 2016
19. That on 15 June 2018 [the Second Respondent] reiterated her demand (in writing) for immediate repayment to her in full of monies advanced by her pursuant to the Limited Recourse Loan Agreement of 1 May 2016
20. That [the husband] is in default of his obligations to [the Second Respondent] pursuant to the Limited Recourse Loan Agreement of 1 May 2016
21. Pursuant to the call option agreement of 1 May 2016 [the Second Respondent] is granted a five year option to acquire a 7.42% interest in the Suburb F property
EVIDENCE
The wife relies upon the following documents:
(a)Amended Initiating Application filed 15 June 2018;
(b)Affidavit of the wife filed 23 July 2020 including annexures;
(c)Affidavit of the wife filed 23 September 2020;
(d)Notice of Costs dated 21 October 2020; and
(e)Written submissions dated 30 October 2020.
The husband relies upon the following documents:
(a)Application in a Case filed 9 August 2020;
(b)Response to Initiating Application filed 25 May 2018;
(c)Affidavit of the husband filed 25 July 2019;
(d)Affidavit of the husband filed 21 July 2020;
(e)Affidavit of the husband filed 24 September 2020 including annexures;
(f)Notice of Costs dated 2 October 2020;
(g)Financial Statement filed 13 August 2020; and
(h)Written submissions dated 30 October 2020.
The Second and Third Respondents rely upon the following documents:
(a)Response to Initiating Application filed by the Second Respondent on 9 August 2019;
(b)Response to Initiating Application filed by the Third Respondent on 9 August 2019;
(c)Minute of Order sought by the Second Respondent provided to the Court on 16 August 2020;
(d)Affidavit of the Second Respondent filed 4 April 2019;
(e)Affidavit of the Second Respondent filed 9 August 2019 including annexures;
(f)Affidavit of the Second Respondent filed 16 August 2019;
(g)Affidavit of the Third Respondent filed 7 April 2019;
(h)Affidavit of the Third Respondent filed 9 August 2019 including annexures;
(i)Notice to Admit Facts and Authenticity of Documents filed 11 June 2020;
(j)Notice to Admit Facts and Authenticity of Documents filed 9 June 2020; and
(k)Notice of Costs dated 1 November 2020.
The following exhibits were relied upon:
(a)Will of Mr B Ormonde dated 12 July 2000 (‘Exhibit 1’);
(b)Deed of Agreement between the husband and the Third Respondent dated 20 July 2012 (‘Exhibit 2’);
(c)Deed of Agreement between the husband and the Second Respondent dated 1 September 2012 (‘Exhibit 3’);
(d)Limited Recourse Loan Agreement between the husband and the Second Respondent dated 1 May 2016 (‘Exhibit 4’);
(e)Call Option Agreement between the husband and the Second Respondent dated 1 May 2016 (‘Exhibit 5’);
(f)R bank statements for account ending ...89 for period 2 November 2012 to 30 November 2012 (‘Exhibit 6’);
(g)Valuation Report of the Suburb F property prepared by Q Valuers dated 15 October 2020 (‘Exhibit 7’);
(h)Tender bundle of documents tendered by the wife (‘Exhibit 8’);
(i)Tender bundle of documents tendered by the husband (‘Exhibit 9’);
(j)Movement details of the Third Respondent from material produced under subpoena by the Department of Home Affairs (‘Exhibit 10’);
(k)Tender bundle of the wife of documents produced under subpoena (‘Exhibit 11’);
(l)Email from PP Business to the husband dated 21 December 2017 (‘Exhibit 12’);
(m)Letter of demand from the Second Respondent to the husband dated 8 June 2018 (‘Exhibit 13’);
(n)Letter of demand from the Second Respondent to the husband dated 15 June 2018 (‘Exhibit 14’);
(o)Letter from MistryFallahi, legal representatives for the wife, to Barkus Doolan Family Lawyers, the then legal representatives for the husband, dated 19 September 2018 (‘Exhibit 15’);
(p)Letter from MistryFallahi, legal representatives for the wife, to Leigh Johnson Lawyers, legal representatives for the Second and Third Respondents, dated 14 August 2020 (‘Exhibit 16’);
(q)Westpac bank statements for account ending ...97 for period 26 September 2012 to 30 November 2012 (‘Exhibit 17’);
(r)Westpac transaction customer receipts and bank statements for the Second Respondent (‘Exhibit 18’);
(s)Westpac bank statement for account ending …23 for period 13 May 2016 to 31 May 2016 (‘Exhibit 19’);
(t)Westpac bank statement for account ending ...97 for period 29 April 2016 to 31 May 2016 (‘Exhibit 20’); and
(u)T Bank transaction customer receipts for the Second Respondent (‘Exhibit 21’).
ISSUES
Issues to be determined in respect to the Second Respondent

The issues to be determined in respect to the Second Respondent’s Application are to be considered in respect to what the Second Respondent contends was the advancement of two separate sums of money, the first being the amount of $112,000 and the second being the amount of $226,000. In respect to each separate amount, it is necessary to consider the following:
In respect to the amount of $112,000
(1)Does the husband hold 4.87 per cent of his right, title and interest in the Suburb F property on express trust for the Second Respondent?
(2)Does the husband hold 4.87 per cent of his right, title and interest in the Suburb F property on resulting trust for the Second Respondent?
(3)Does husband hold 4.87 per cent of his right, title and interest in the Suburb F property on constructive trust for the Second Respondent?
(4)Is the Second Respondent entitled to an equitable lien over the Suburb F property as to secure payment to her of the sum of $112,000 expended by her on the acquisition of the Suburb F property?
(5)Is the Second Respondent entitled to an equitable charge over the Suburb F property as to secure payment to her of the sum of $112,000 expended by her on the acquisition the Suburb F property?
(6)Is the wife and/or the husband indebted to the Second Respondent in the sum of $112,000?
In respect to the amount of $226,000
(1)Does the husband hold 7.42 per cent of his right, title and interest in the Suburb F property on express trust for the Second Respondent?
(2)Does the husband hold 7.42 per cent of his right, title and interest in the Suburb F property on resulting trust for the Second Respondent?
(3)Does husband hold 7.42 per cent of his right, title and interest in the Suburb F property on constructive trust for the Second Respondent?
(4)Is the Second Respondent entitled to an equitable lien over the Suburb F property as to secure payment to her of the sum of $226,600 expended by her on the acquisition the Suburb F property?
(5)Is the Second Respondent entitled to an equitable charge over the Suburb F property as to secure payment to her of the sum of $226,600 expended by her on the acquisition the Suburb F property?
(6)Is the wife and/or husband indebted to the Second Respondent in the sum of $226,000?
Issues to be determined in respect to the Third Respondent
The issues to be determined in respect to the Third Respondent’s Application are to be considered in relation to what is contended as the advancement of the sums of $550,000 and $250,000 in respect to the Suburb F property and the sum of $50,000 in respect to the purchase of the motor vehicle 1. In respect to those issues, it is necessary to consider the following:
In respect to the amounts of $550,000 and $230,000
(1)Does the husband hold 33.91 per cent of his right, title, and interest in the Suburb F property on express trust for the Third Respondent?
(2)Does the husband hold 33.91 per cent of his right, title and interest in the Suburb F property on resulting trust for the Third Respondent?
(3)Does the husband hold 33.91 per cent of his right, title and interest in the Suburb F property on constructive trust for the Third Respondent?
(4)Is the Third Respondent entitled to an equitable lien and/or equitable charge over the Suburb F property to secure payment to him of the monies expended by him, being $550,000 and $230,000, on the acquisition of the Suburb F property and/or any additional amount equivalent to the Third Respondent’s equitable interest in the Suburb F property?
(5)Should orders be made that the wife and husband pay the Third Respondent the equivalent sum of the Third Respondent’s declared interest in the Suburb F property?
In respect to the amount of $50,000
(1)Is the husband indebted to the Third Respondent in the sum of $50,000 in respect to funds advanced by the Third Respondent to the husband for the purpose of the husband purchasing the motor vehicle 1?
Issues to be determined in respect to the Application of the wife
Following from the determination of the issues in relation to the Second and Third Respondents, as set out above, the Court will consider whether it is necessary to determine whether the First Deed, the Second Deed, the Limited Resource Loan Agreement and the Call Option agreement are bona fide documents, and, further, whether the Court should exercise its discretion, pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”), to set aside any disposition or instrument.
ONUS OF PROOF
In Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 457, Bowen LJ said:
Where a person asserts affirmatively [as part of their case] that a certain state of facts is present or absent … that is a positive averment, and must be proved positively.
In these proceedings, no issue was taken with that statement of principle.
In this matter, the Second and Third Respondents carry the onus to establish that they have the interest in the Suburb F property or, in the alternative, that the husband is indebted to them as contended in their respective claims. As noted, the Second and Third Respondents rely on the instruments to which I have earlier referred to establish their claimed interests.
A party seeking to rely upon a document, which they contend constitutes a binding contract, carries the onus of satisfying the court that the document was “executed as it appears to have been”: see Traxys Europe SA v Balaji Coke Industry Pvt Ltd [2011] FCA 1132 (“Traxys Europe SA v Balaji Coke Industry Pvt Ltd”) at [12]. As noted in that case, s 149 of the Evidence Act 1995 (Cth) (“the Evidence Act”) has ameliorated the common law position in that s 149 provides that, “It is not necessary to adduce the evidence of an attesting witness to a document… to prove that the document was signed or attested as it purports to have been signed or attested”. However, when authenticity is put in issue that provision has not removed the evidentiary burden referred to in Traxyys Europe SA v Balaji Coke Industry Pvt Ltd which remains on the person asserting the positive case.
It has not been contended in these proceedings that the husband and the Second and Third Respondents have committed a fraud in terms of s 43 of the Real Property Act 1900 (NSW) – as was the situation in cases including, for example, National Commercial Banking Corp of Aust Ltd v Hedley (1984) 3 BPR 9477; Australian Guarantee Corp Ltd v De Jager [1984] VR 483; Westpac Banking Corp Ltd v Sansom (1994) 6 BPR 13,790; Beatty v Australia and New Zealand Banking Group Ltd [1995] 2 VR 301.
In this case the wife is not contending that the Respondents have committed an act of fraud. Indeed, the wife contends that failure of the husband and the Second and Third Respondents to attempt to register the relevant instruments which are the subject of these proceedings prior to the commencement of these proceedings is itself evidence of the lack of genuineness of the purported transactions. While, in order to resolve the issue of admissibility of the relevant instruments, an undertaking was provided by counsel for the Second and Third Respondents, on behalf of those Respondents, that the instruments would be transmitted to the Chief Commissioner of State Revenue for the purpose of assessing whether stamp duty is payable in respect to the instruments, no evidence has been provided that such transmission has occurred or that the documents have been registered in the manner provided in the Real Property Act 1900 (NSW).
Accordingly, I have determined that the evidentiary burden in this matter rests on the husband and the Second and Third Respondents to establish their respective claims for an equitable interest in the Suburb F property. This includes having the evidentiary burden of establishing the date upon which they purportedly executed the relevant instruments. To be clear, I have not accepted the argument that the wife is required to prove fraud on the part of the Respondents,’ which would have required her to do so on the basis of the Briginshaw standard: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (per Dixon J), as was the situation in cases such as Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 at [50] (per Sackville AJA); Bale v Mills (2011) 81 NSWLR 498 at [71]–[72]; and Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [205].
CREDIT
In evaluating and considering the evidence presented by the parties, I have had regard to the statement of Emmett J, as his Honour then was, in Warner v Hung; Bellpac Pty Ltd (rec’s and mgrs apptd) (in liq) (2011) 297 ALR 56 at [48], where his honour said:
When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2; [1938] ALR 334 at 342.
In this matter, the wife has challenged the credibility of the evidence provided by the husband and the Second and Third Respondents and, in turn, the husband and the Second and Third Respondents challenged the credibility of the wife’s evidence. In Evans v Braddock [2015] NSWSC 249, Hallen J helpfully articulated relevant principles in respect to accessing credibility, stating at [73]:
The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas s .A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].
In McGlen-McLeod v Galloway [2012] NSWCA 368, Tobias AJA, with whom Allsop P and Campbell JA agreed, referred with approval to the test for assessing the truth of a witness’s evidence as being stated by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at 73, where it was said:
There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed “The Judge as Juror: The Judicial Determination of Factual Issues” … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness’s evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
In the High Court decision of Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the plurality said at 384, [62]:
Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call).
The issues in dispute in this matter are such that the husband supports the claims of the Second and Third Respondents. Specifically, the husband contends that they both have an equitable interest in the Suburb F property and/or that the he is indebted to the Second and Third Respondents in respect to the monies that they have advanced to him. A consequence of the Court making one or other of the findings sought by the Second and Third Respondents is that the wife would, at the final hearing of this matter, receive a minimal, if any, adjustment of the parties’ property in her favour. Accordingly, the interests of the husband and the Second and Third Respondents are aligned and they have each presented evidence to support their mutual contentions.
Conversely, a finding that dismisses the Application made by the Second and Third Respondents, either in part or in whole, increases the prospect that the wife will receive an adjustment of substance at the final hearing of this matter.
Credibility of the husband
In terms of the credibility of the husband, the Court notes that he gave his evidence in a confident and, surprisingly, in the circumstances of this case, almost relaxed manner. There is no suggestion that his confident presentation was in any way contrived. The evidence of the husband was, however, affected by poor recall. During cross examination, the husband frequently responded with the expressions “I can’t remember”, “I don’t recall” or similar expressions.[2] This included a number of occasions where it was improbable that he had such little recall. An example of that was where the husband denied memory of an employee of his UK business who signed a memorandum on behalf of K Pty Ltd, which was provided to the J Bank at the time that the husband applied for a loan to purchase the Suburb F property, stating that the company had made a gift to him in the sum of $460,000. In that respect, the husband replied to a question as to the status of the employee, Ms LL, with the response, “It was, I believe, just a part-time employee or part-time worker. I don’t recall exactly”.
[2] See for example, to name a few: Transcript 18 August 2020, p.140 lines 38–39, p.142 lines 29–33, 42, p.143 lines 12, 44, p.144 lines 2, 10–22, 43, p.146 lines 10–32, p.147 lines 33–37, 42, p.152 line 24, p.154 line 39, p.156 lines 13, 27, 30, 34, p.160 lines 12, 37, p.161 lines 18, 21, p.161 line 22, p.164 lines 14, 37, p.165 line 40, p.167 line 44; Transcript 19 August 2020, p.188 line 34, p.189 line 4, p.192 line 15, p.193 line 30, p.203 line 45, p.206 lines 19, 24, p.211 lines 3, 26–29, 45, p.212 lines 3–10, p.2020 lines 41–42, p.237 line 18, p.238 line 12, p. 243 line 38, p.246 line 32, p.249 line 9, p. 250 line 2–3, p.265 line 13, p.266 line 14–20, p.268 line 11, 39, 43; Transcript 19 October 2020, p. 14 line 41, p.15 lines 35–36, p.18 line 9, p.19 line 1, p.20 lines 28, 43, p.22 line 8, p.36 line 43, p.42 lines 9–16, p.53 line 17, p.54 lines 8, 15–19, p.60 line 39, p.62 lines 12, 20, 33, p.64 line 5, p.65 lines 7–8
The significance of the inability of the husband to recall the identity of Ms LL was the subject of further cross examination by counsel for the wife, in the following terms:
[COUNSEL FOR THE WIFE]: Thank you. So you don’t know this person, [Ms] LL, is that right?
[THE HUSBAND]: I don’t recall, to be honest. We’ve employed probably in excess of 100 people over the years.
[COUNSEL FOR THE WIFE]: So is that a yes, you don’t know who this person?
[THE HUSBAND]: I cannot recall who that
[COUNSEL FOR THE WIFE]: And I take it that because you say you can’t recall, you haven’t – and you’ve only just found out about this document, you haven’t made any inquiries?
[THE HUSBAND]: I have not. No.
(Transcript 19 August 2020, p.236 lines 35–43)
It is, first, implausible that the husband would not have known the identity of the employee who signed such a significant document on behalf of his company. Second, a significant issue in these proceedings is the date upon which each of the relevant instruments, to which I have earlier referred, were signed. That matter could easily have been clarified by the husband and the Second and Third Respondents presenting evidence from the witnesses to each of those documents confirming the date upon which they witnessed the documents. Counsel for the wife contends, with justification, in my view, that the Court should be concerned about a pattern in the evidence presented by the husband where he was unable to identify, and now contact, persons whose evidence would have assisted the Court in these proceedings.
A further example of the significance of the husband’s poor recall was his lack of memory of the provision of two (2) documents – a Confirmation of Non-Repayable Gift document (page 76 of ‘Exhibit 11’), which was contained in the material produced by J Bank on subpoena, stating that the husband had been gifted by his company K Pty Ltd the sum of $460,000 and another Confirmation of Non-Repayable Gift document (page 77 of ‘Exhibit 12’), also contained in the material produced by J Bank on subpoena, stating that the Third Respondent had gifted the husband the sum of $460,000.
The husband’s evidence in that respect was as follows:
[COUNSEL FOR THE WIFE]: All right. And do you recall that in support of your application, you sent in two documents which are described as confirmation of non-repayable gifts; do you recall that?
[THE HUSBAND]: I don’t recall specifically sending them, but I have – I have seen them.
[COUNSEL FOR THE WIFE]: Yes. And one of those – and you’re the person that provided those documents to your mortgage broker, aren’t you?
[THE HUSBAND]: I think so. I can’t recall exactly that.
[COUNSEL FOR THE WIFE]: Well, no one else would have provided them to your mortgage broker, would they?
[THE HUSBAND]: I don’t know if [the wife] sent them.
[COUNSEL FOR THE WIFE]: Are you suggesting [the wife] would have sent these documents, sir?
[THE HUSBAND]: It’s a possibility. I don’t know.
[COUNSEL FOR THE WIFE]: Well, can I suggest to you, sir, that that’s simply not true, and there’s no basis for that evidence at all?
[THE HUSBAND]: You can suggest it. I wouldn’t necessarily agree with it.
(Transcript 19 August 2020, p.219 lines 15–29)
In my view, it is implausible that the husband would not have recalled whether he did or did not provide such significant documents to J Bank or, at least, his mortgage broker to, in turn, be provided to the Bank.
The husband’s evidence in respect to the Confirmation of Non-Repayable Gift document signed by the Third Respondent was as follows:
[COUNSEL FOR THE WIFE]: Sir, is it honestly your evidence that you can’t recall providing to the J Bank, in support of your home loan application, a document that is described as a confirmation of non-repayable gift, signed by your brother in the amount of $460,000? Is it actually your honest evidence that you can’t recall that – doing that?
[THE HUSBAND]: I actually don’t recall sending that, no. No. It, it - - -
[COUNSEL FOR THE WIFE]: In the circumstances of this case, and the issues that his Honour has to determine, it’s your evidence that you have forgotten that you provided, in support of your home loan application, documentation which states – a signed document which states that you have been given a gift of $460,000 by your brother?
[THE HUSBAND]: 100 per cent, I don’t remember sending these at all.
(Transcript 19 August 2020, p.220 lines 32–42)

The wife acknowledged that she “witnessed documents in relation to the J Bank finance application for the purchase of the Suburb F [property]” (Transcript 18 August 2020, p.94 lines 18–19) and, further, that she had some knowledge about the finance application for the purchase of the Suburb F property (Transcript 18 August 2020, p.94 lines 40–41). The fact that the wife knew “something about the finance application for the purchase of [the Suburb F property]” is, however, an entirely different proposition to a positive assertion that the wife provided to J Bank copies of the two (2) Confirmation of Non-Repayable Gift documents being declarations of gifts to the husband. Moreover, it was never put to the wife in cross examination that she was the person who provided the two (2) documents to J Bank confirming the amounts stated to be gifts to the husband. The proposition that the wife sent copies of the documents to J Bank is inconsistent with the fact that she was compelled to utilise legal processes, by way of subpoena to J Bank, to obtain access to the documents and which documents, in turn, were the subject of enquiry by her solicitors to the solicitors for the husband by letter dated 6 November 2018 (annexure M-8C to the wife’s Affidavit). The fact that she was compelled to use those processes makes it unlikely that she had previously had access to those documents. In those circumstances, I prefer the evidence of the wife that she was not responsible for providing the relevant documents to J Bank and it is implausible that any person other than the husband, who was the applicant for the loan, provided or caused to be provided to J Bank those relevant documents.
The failure by the husband to acknowledge that reality, together with the husband’s poor recollection of even straightforward matters, is a matter that I have taken into consideration in assessing the husband’s credibility.
Having found, as a matter of probability, that the husband provided the two (2) Confirmation of Non-Repayable Gift documents to J Bank, a further matter that I have considered in assessing the husband’s credibility is the fact that he was prepared to present, or cause to be presented to J Bank on his behalf, documents which he now states to be false and which were relied upon by himself to obtain funds for his personal benefit.
The husband’s credibility is also adversely affected by the fact that he has been prepared to falsely represent himself as having “a Bachelor of Law”. The husband initially acknowledged that he did so held himself out as having that qualification (Transcript 18 August 2020, p.139 lines 5–16). In giving further evidence, on 19 October 2020, the husband acknowledged that he had not obtained that qualification (Transcript 19 October 2020, p.57–58 lines 27–8). When asked why he represented himself as having that qualification he stated that it was because “it helps me with making me look better for business, basically” (Transcript 19 October 2020, p.57 line 41).
Credibility of the Second Respondent
The Second Respondent voiced displeasure with the fact that she had become involved in these proceedings and, in that respect, expressed surprise that she was being “sued” by the wife. This is despite the fact that it is the Second Respondent who is asserting and carries the onus of satisfying the Court that she has an interest in the Suburb F property and/or that funds are repayable to her as a result of the fact that she contends she advanced those funds to the husband. There were also instances where the Second Respondent’s temperament was visibly affected in circumstances where she was pressed on sensitive issues, including explaining transactions recorded in her banking records which she contends evidence payments to the husband. In that respect, the Second Respondent also generally had poor recollection regarding her own banking details (see for instance Transcript 20 October 2020, p.118 lines 43–45). Most significantly, however, in assessing the credibility of the Second Respondent, I have found that she gave mutually inconsistent evidence in respect to circumstances in which she signed the Second Deed (Transcript 20 October 2020, p.131; 143). That evidence will be set out in greater detail below.
Credibility of the Third Respondent
On several occasions, the Third Respondent voiced his displeasure with the fact that he had become involved in these proceedings. There were also instances where he became quite belligerent when responding to questions asked of him by counsel for the wife. This included, for example, stating that he was not prepared to answer the question asked. When pressed regarding whether he had provided bank statements, in accordance with Order 5 of the orders made by Judge Henderson, as she then was, on 24 June 2019, the Third Respondent provided answers to the effect that he had not been made aware of that particular Order however, in any event, he had complied with his obligations of disclosure. When further pressed by counsel for the wife that the substance of the question being asked was whether the Third Respondent had provided relevant bank statements, the Third Respondent finally agreed that he had not. The relevant exchange was as follows:
[COUNSEL FOR THE WIFE]: All right. So, the order says this, [the Third Respondent], that you provide to the solicitors for the wife, copies of all bank statements that you asserted contained proof of moneys that you provided to the husband and his family from 2012 until the end of 2017 within 56 days. Yes?
[THE THIRD RESPONDENT]: Right. I see that now, yes.
[COUNSEL FOR THE WIFE]: And you didn’t comply with that order, did you?
[THE THIRD RESPONDENT]: So, my understanding was – I’ve seen this for the first time. My understanding was I need the proof of the payment which we’ve done in a timely manner.
[COUNSEL FOR THE WIFE]: Would you like me to repeat my question?
[THE THIRD RESPONDENT]: No. If you wish, yes.
[COUNSEL FOR THE WIFE]: You didn’t comply with that order, did you?
[THE THIRD RESPONDENT]: I’ve complied with my understanding of the order, correct.
[COUNSEL FOR THE WIFE]: Well, was it your understanding that you were required to provide copies of all bank statements?
[THE THIRD RESPONDENT]: My understanding of the order was I needed to provide proof of the payment, which I’ve done in a timely manner.
[COUNSEL FOR THE WIFE]: Well, sir, the order asks you to provide copies of all bank statements. You understand that part of the order, don’t you?
[THE THIRD RESPONDENT]: That’s the first time I’ve seen that written order, and my understanding was what I’ve just explained.
[COUNSEL FOR THE WIFE]: Sir, would you answer my question, whether or not you understand - - -?
[THE THIRD RESPONDENT]: I think I have.
[COUNSEL FOR THE WIFE]: do you understand - - -?
[THE THIRD RESPONDENT]: I’ve answered your question. No, I have answered.
[COUNSEL FOR THE WIFE]: All right. Well, is your answer – is your answer that you don’t understand what the words “copies of all bank statements” means?
[THE THIRD RESPONDENT]: No. I’ve explained to you my understanding and I’ve complied with my understanding.
[COUNSEL FOR THE WIFE]: Sir, do you understand that I’m not asking you about your understanding?
[THE THIRD RESPONDENT]: I’ve answered the question to the best of my ability.
[COUNSEL FOR THE WIFE]: Okay. And you have – well, you’ve not provided any bank statements to my client by way of disclosure during the course of these proceedings, have you?
[THE THIRD RESPONDENT]: I’ve provided proof of payment, correct.
[COUNSEL FOR THE WIFE]: I didn’t ask you that, sir?
[THE THIRD RESPONDENT]: Sir, I do not recall providing bank statements.
[COUNSEL FOR THE WIFE]: I’m sorry?
[THE THIRD RESPONDENT]: I do not recall providing any bank statements.
(Transcript 21 October 2020, p.218–219 lines 11–3)
The Third Respondent was also dismissive of attempts by counsel for the wife to obtain clarification of the circumstances in which he had executed and signed the First Deed. This included the date and circumstances in which he received the agreement, that is, whether it was sent electronically or by way of post and whether he had advised his then solicitors that he had received the document by post and not electronically as alleged by the husband. Those matters will be expanded upon below.
Credibility of the wife
The credibility of the wife was adversely impacted by attempts she made to clarify the assertions of fact she was making in these proceedings in circumstances where the Notice Disputing Facts and Authenticity of Documents filed on 1 July 2020, on her behalf by her solicitors, expressed the wife’s factual contentions in the alternative. In several instances, those competing factual contentions were mutually inconsistent with that inconsistency being incapable of rational explanation (Transcript 17 August 2020, p.67–68; p.73–75). Nevertheless, as recently noted by Sackar J in Pirovic v Barbieri [2020] NSWSC 1892 at [104], disbelieving a witness on one matter does not mean the opposite is proven, and the evidence must be looked at as a whole: see Saravinovska v Saravinovksa (No 6) [2016] NSWSC 964 at [470]-[471]; Cook v Sirius International Insurance Corporation Australia Branch [2020] NSWSC 1631 at [155].
Aside from that aspect of the wife’s evidence where she had difficulty clarifying the position reflected in “Notices Disputing Facts”, which had been signed and filed on her behalf by her solicitor, the wife gave her evidence in a clear, direct and straightforward manner. She appeared to make a genuine attempt to recall relevant events and to seek clarification from documentary evidence where her memory was unclear. The wife was also prepared to make admissions against her interest including admitting that she had witnessed the husband’s father’s Will.
To be clear, however, my preference for generally accepting the accuracy of the evidence of the wife over that of the husband, and the Second and Third Respondents is not based on the mere demeanour of the parties in the witness box. As I will set out further below, my assessment of the evidence provided by each party has been influenced by both the manner in which they gave their evidence and, more significantly, the consistency or inconsistency of each of the witness’s testimony with other evidence presented in the proceedings together with the plausibility of the evidence which they gave. As I will explain, that lack of plausibility resulted in the Respondents failing to evoke in me, as the trial judge, a feeling of “an actual persuasion of the occurrence or existence” of the relevant fact that I will identify as being a fact in issue.
CONSIDERATION OF ISSUES
The amount of $112,000
Does the husband hold 4.87 per cent of his right, title and interest in the Suburb F property on express trust for the Second Respondent?
The wife conceded that, on 26 September 2012, the Second Respondent withdrew from her Westpac bank account the sum of $112,010 (having been referred to a funds transfer document dated 28 September 2012, a Westpac bank statement for account ending #…80 dated 28 September 2012 – see pages 18 and 19 of Exhibit 9) (Transcript 17 August 2020, p.62).
The wife further conceded that the amount so withdrawn by the Second Respondent was paid into the trust account of those solicitors, acting on the conveyance, and, on 2 October 2012, those solicitors withdrew from their trust account a cheque made out to the Office of State Revenue for $112,010 and that the amount so paid represented the Stamp Duty payable in respect to the purchase of the Suburb F property (having been referred to a copy of a bank cheques drawn by P Lawyers to the Office of State Revenue and ANZ Bank – see page 20 of Exhibit 9) (Transcript 17 August 2020, p.62).
In Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, Ward CJ in Eq, at [39], usefully summarised the relevant principles in respect to the formation of an express trust as follows:
As to the intention necessary to establish an express trust, what is required is a sufficiently certain manifestation of an intention to create a trust. The question of intention is to be determined objectively; some private, subjective, intention being insufficient (see Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 at 277 (Gummow and Hayne JJ; at 290 (Heydon and Crennan JJ)). It is relevant, particularly in the family context where the question here arises, to note what was said in Nguyen v Phan (No 2) [2015] VSC 634 (at [237]), by Elliott J, namely that:
In order to find an express trust was created, it is not necessary for the plaintiffs to prove the parties specifically and formally turned their minds to the fact that a trust was being created; no special or technical language needs to be used; it is sufficient if the intention to create a trust may be ascertained from what the parties actually agreed or said. The intention is imputed when manifest in what is expressly agreed or declared. That intention must be clear from the language used, as objectively understood in the relevant circumstances of the case, including the relationship of the parties. More than once, Gummow J has observed that the precision that might be expected in arms-length commercial transactions is not to be expected in private family dealings. [footnotes omitted]
For there to be a trust over land in New South Wales, it must be manifest in writing as required by s 23C of the Conveyancing Act 1919 No 6 (NSW) which states:
(1) Subject to the provisions of this Act with respect to the creation of interests in land by parol—
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will,
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing.
(2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.
As noted by the Full Court in Vadisanis v Vadisanis (2014) 53 Fam LR 345 (per Ainslie-Wallace, Ryan and Johnston JJ) at 354, [44], “[t]he correct time to determine the beneficial interests in a property is at the time of acquisition”. This includes the situation in respect to an express trust. In that respect, in Green v Calverley (1982) 8 Fam LR 770 at 772, Hutley J.A (with Samuels J.A. agreeing) said:
When, therefore, the respondent endeavours to set up that the appellant’s interest is held on trust for him, it must be shown that at the latest, at the moment of the transfer being registered, which occurred on 16 November 1973, the parties had jointly agreed that she would hold her interest in the joint tenancy on trust for him. This is not a case of resulting trust, nor of a constructive trust. If the respondent succeeds, it must be a case of an express trust and an express trust at the time when the legal estates were acquired.
While the decision of the Full Court was reversed by the High Court (see Calverley v Green (1984) 155 CLR 242 (“Calverley v Green”)), there was no question about the accuracy of that statement of principle. As noted by Gibbs CJ in Calverley v Green at 252:
The extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created.
The husband was unable to recall the exact date upon which the settlement of the purchase of the Suburb F property occurred. Comparatively, the wife asserts that the settlement occurred on 3 October 2012 (Transcript 18 August 2020, p.160 lines 12–13). The husband further advised the Court, through his solicitor advocate, that the settlement occurred in October 2012 (Transcript 2 November 2020, p.270 line 18). It was, therefore, not disputed that the settlement occurred at some stage in the month of October 2012 and, for the purpose of this decision, erring in favour of the husband and the Second and Third Respondents on this issue, I will assume that the settlement occurred on 31 October 2012.
In this matter, the instrument which the Second Respondent relies upon to establish the existence of an express trust is the Second Deed which the husband and Second Respondent contend was executed by them on the first day of September 2012. However, in circumstances where the totality of the evidence casts doubt on the evidence of the party asserting that the document has been signed as it purports to have been, failure to call or at least identify the person who witnessed the document is a factor that I consider to be relevant in determining whether the document has been executed as the person or persons seeking to rely upon the document assert it has been. In this case, most relevantly, the date of the execution of the document is time critical. This is because, as I have noted, if the Second Deed is to be considered in characterising the nature of the payment as creating an express trust, the Second Deed must have been executed prior to the settlement of the purchase of the Suburb F property which occurred in the month of October 2012.
Accordingly, in order to establish the existence of an interest in the nature of an express trust in the Suburb F property to the extent of 4.87 per cent, the Second Respondent carries the onus of establishing that the Second Deed said to have been executed on 1 September 2012 was executed on that day or, at least, that the Deed was executed at a time prior to 31 October 2012, being the last possible date of the settlement of the purchase of the Suburb F property.
For reasons which I set out, the Second Respondent has failed to discharge that onus.
First, a question arises as to why the husband failed to obtain legal advice in respect to such a significant document in circumstances where he had a firm of solicitors acting for him on the conveyance and where, as I have earlier indicated, the husband acknowledged that he is not legally qualified. The absence of legal advice in respect to that issue means that it is not possible to ascertain the date of the advice which would have been provided.
Second, the Court has some concern that neither the Second Respondent nor the husband were able to provide the original copy of such a significant document. This failure, in itself, is not determinative in proving the authenticity of the document nor the circumstances in which it was executed. It is, however, a relevant consideration insofar as the absence of the original document showing the actual signatures of the parties would have enabled greater scrutiny of the authenticity of those signatures. This has not been possible in circumstances where the originals have not been produced.
Third, the Second Deed, purportedly dated 1 September 2012, records the address of the husband as “2S Street, Suburb BB NSW”. Prior to moving into the Suburb F property, the wife and husband in fact resided at 1S Street, Suburb BB, in the State of New South Wales. The husband explained the error as a “typo” (Transcript 19 August 2020, p.204 line 7–11). However, a similar error is made in the First Deed between the husband and the Third Respondent. It is, of course, possible that the same typographical error was made in respect of both documents, nevertheless it is, again, a relevant consideration when evaluating the totality of evidence.
Fourth, suspicion arises in circumstances where the husband’s signature on both the First and Second Deeds were both witnessed by a person identified as “Mr L” who the husband states was a gentleman who operated a coffee van at a Business Park titled “DD Centre” which was located in the vicinity of CC Street in the State of New South Wales. The explanation provided by the husband and the Third Respondent as to why they approached the gentleman to witness and sign the First and Second Deeds is implausible. For reasons which I explain, that implausibility when considered in the context of the totality of the evidence, to which I refer, satisfies me that both the Second Deed and the First Deed were signed at a time postdating the settlement of the property and, indeed, after the time when the wife and husband had moved into the Suburb F property.
Implausibility of the First and Second Deeds being witnessed by Mr L

At paragraph 27(b) of his same Affidavit, the husband attests that:
At the time of completion of the purchase of the Suburb F property, [the Third Respondent] advanced a further amount of $550,000 that was applied to the purchase price of the Suburb F property. [The Third Respondent] paid this amount into the trust account of the solicitors that acted on the sale, namely Emmerson & Emmerson.
At paragraphs 36 to 38 of his same Affidavit, the husband further attests as follows:
36. I do not recall if I asked or if [the Third Respondent] suggested that he could assist us in buying a house. There was never any suggestion from either of us that [the Third Respondent] would give us money. I would not have asked for a gift with any expectation that [the Third Respondent] would agree. My experience of [the Third Respondent] through the years is that he is extremely careful with his money and is focused on accumulating his own wealth. I recall that [the Third Respondent] said on a number of occasions “I can put in money to buy a share of the house that you buy. I would own a share proportional to what I put in”.
37. I discussed my conversations with [the Third Respondent] with the wife many times. I recall I said “Even if we can borrow some money from the bank we are not going to be able to borrow anything like what we need. [The Third Respondent] said he will put in money to buy a share of the house, and that will help us to get a house.” The wife said “Yes, that sounds like a good idea”
38. Therefore, in the process of considering purchasing a home, the plan was that we would borrow what we could from a financial institution and [the Third Respondent] would become a part owner of the home for whatever money he put in. We looked at houses which had an asking price, in some instances, of well over $3 million which was considerably in excess of anything we could afford by ourselves. We continued to hunt for houses in that price range only because we anticipated that Mr B Ormonde would put money in. We had many conversations along the lines that one of us would say “well, if we get this house, we are only going to be able to get it if [the Third Respondent] comes into the deal.” All along we had conversations in which one or the other of us would say “[the Third Respondent will have a share of the home for the money he puts in.”
At paragraph 51 of his same Affidavit, the husband states:
…the money paid by [the Third Respondent] towards the purchase of the Suburb F property was not a gift. At no time did [the Third Respondent] say or imply that those monies were advanced as a gift.
For reasons which I have previously set out, I am also satisfied that the Third Respondent advanced that sum of $550,000 in the manner described by the husband in that paragraph. Having determined that the Third Respondent advanced, on behalf of the husband, the total sum of $780,000 towards the purchase of the Suburb F property, it is necessary to consider whether, as result of the Third Respondent’s conduct in making those two separate payments, for that purpose, a resulting trust arises such that the husband holds the property on trust for the Third Respondent for an amount equivalent to the percentage of his contribution to the purchase price.
In Minassian v Minassian [2010] NSWSC 708, Ball J at [71] stated:
A resulting trust arises where, among other circumstances, a person makes a contribution to the purchase price of property the legal title to which is held in the name of another: Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; Calverley v Green (1984) 155 CLR 242. The property is held in trust for those who contributed to its acquisition in shares proportionate to their contributions. The presumption of a trust is displaced (by the presumption of advancement) where the contribution is made by a husband to the acquisition of property by his wife or by a parent to the acquisition of property by a child. However, the presumption of advancement can be rebutted or qualified by evidence that manifests an intention to the contrary. The only evidence that is admissible to rebut the presumption of advancement is evidence of admissions or evidence of acts or statements by the parties before or at the time of the purchase or so immediately after the purchase as to be part of it: Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365–6 per Dixon CJ, McTiernan, Williams, Fullager and Taylor JJ.
In Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 (“Charles Marshall v Grimsley”), which was referred to by his Honour Ball J, the High Court held at 363-364:
...We are in the presence of the familiar problem that arises whenever a person purchases and pays for property, real or personal, whatever its description may be, the legal title to which is transferred by his direction into the name of another person. If that person is a stranger, the presumption of a resulting trust arises and he holds the property on trust for the purchaser. But if the purchaser is the father of or a person in loco parentis to the legal owner, the presumption arises from the relationship of the parties that the father intended to purchase the property to advance his child and to make the child not only the legal but also the beneficial owner of the property. These presumptions were described as landmarks in the law by Eyre C.B. as far back as 1788 in the leading case of Dyer v. Dyer (1). In Sidmouth v Sidmouth (2), decided in 1840, Lord Langdale M.R. said: “The law applicable to cases of this nature is subject to so little doubt that it has not been questioned in the argument of this case. Where property is purchased by a parent in the name of his child, the purchase is prima facie to be deemed an advancement; the resulting or implied trust which arises in favour of the person who pays the purchase-money, and takes a conveyance or transfer in the name of a stranger, does not arise in the case of a purchase by a parent in the name of a child; but still the relation of parent and child is only evidence of the intention of the parent to advance the child, and that evidence may be rebutted by other evidence, manifesting an intention that the child shall take as a trustee; and in this case, as in most others of the like kind, the only question is, whether there is such other evidence. That contemporaneous acts and even contemporaneous declarations of the parent may amount to such evidence, has often been decided. Subsequent acts and declarations of the parent are not evidence to support the trust, although subsequent acts and declarations of the child may be so; but, generally speaking, we are to look at what was said and done at the time.
(Citations omitted) (See also Calverley v Green (supra) at 266; Dullow v Dullow (1985) 3 NSWLR 531 at536; Brown v Brown (1993) 31 NSWLR 582 at 588, 595; Nelson v Nelson (1995) 184 CLR 538 at 548, 584, 602).
In Noack v Noack [1959] VR 137 (“Noack”), Deane J at 140 held that “no presumption of benefit” arises between siblings. The Full Court of the Supreme Court of Victoria (Herring, CJ, Gavan Duffy and Adam, JJ), in Noack, stated that subject to “a few qualifications and comments” which are not here relevant, their Honours agreed “entirely with the reasons for judgment of the learned trial judge”. To similar effect, in McGregor v Nicol [2003] NSWSC 332, the presumption of resulting trust was applied in respect to a transfer of funds between siblings.
The question therefore becomes whether the wife has discharged the onus of proof that rests with her of rebutting the presumption of a resulting trust, by evidence of the existence of a contrary intention on the part of the Third Respondent and the husband at the time of the purchase of the Suburb F property: see Calverley v Green at 251 (per Gibbs CJ), 261–2 (per Mason and Brennan JJ), 269 (per Deane J).
As noted by the High Court at 364, in Charles Marshall v Grimsley, such evidence may include a “contemporaneous declaration” of the party advancing funds for the purchase.
In seeking to rebut the presumption, the wife relies upon a handwritten memorandum titled ‘Confirmation of Non-Repayable Gift’ dated 6 July 2012 signed by the Third Respondent which was provided to J Bank in 2012, in support of the husband’s application for a home loan from that institution for the purpose of purchasing the Suburb F property (see page 77 of Exhibit 11). The document states:
We [the Third Respondent]
of [N City address set out]
have made a gift of $460,000 [repeated in words]
to [the husband]
of [address set out]
These funds are to assist in the purchase of the property known as [the Suburb F property]
and I/We confirm that the said gift is not conditional or repayable at any time.
[Signature the Husband]
[Signature of the Third Respondent]
6 July 2012
It is to be noted that the document refers to the gift being made in respect to the purchase of the Suburb F property. One possible inference is that the document referred to either or both the amount of $230,000 and/or the amount of $550,000 paid by the Third Respondent on behalf of the husband towards the purchase of the Suburb F property.
As against that possible inference, it is to be noted, however, that while not referring to the date that the purported gift had been made, the document states that such a gift occurred prior to 6 July 2012. For reasons which I have set out, I am satisfied that the amount of $230,000 paid by the Third Respondent on behalf of the husband in respect to the deposit required for the Suburb F property was made on 26 July 2012. It was not disputed that the amount of $550,000 paid by the Third Respondent in respect to a portion of the purchase price of the Suburb F property was made by a transaction which occurred on 28 September 2012. That is, both transactions occurred after the date of the document titled “Confirmation of Non-repayable Gift” which, as noted, refers to monies being gifted by the Third Respondent to the husband prior to 6 July 2012.
Further, the amount of $460,000 referred to in that document does not correlate to either the disputed amounts of $230,000 or $550,000. There is no evidence before the Court of the Third Respondent making a substantial transfer to the husband prior to 6 July 2012 or paying a substantial amount on the husband’s behalf prior to that date. Both the husband and the Third Respondent deny that the Third Respondent gifted to or on behalf of the husband an amount in that sum.
In those circumstances, the inescapable conclusion is that, in the document ‘Confirmation of Non-Repayable Gift’ dated 6 July 2012, the Third Respondent falsely stated that, as at that date, he had gifted the sum of $460,000 to the husband and, further, in communicating or causing that document to be communicated to J Bank, the husband similarly made a false representation.
In Jordan & Jordan (1997) FLC 92-736, Chisholm J at 83,927 provided a helpful analysis of what is known as the “Elias principle “ which is based upon the decision of the Full Court in Elias and Elias (1977) FLC 90-267. His Honour summarised the principle as follows:
When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.
However, that principle is inapplicable in the present case because it is the wife and not the husband or the Third Respondent who is seeking to rely upon the document titled “Confirmation of Non-Repayable Gift”. That document has been accepted into evidence.
On its face, the document is a declaration to a third party namely J Bank that prior to 6 July 2012 the Third Respondent had gifted to the husband the sum of $460,000. That document is not a declaration in respect to subsequent payments made on behalf of the husband by the Third Respondent in the sum of $230,000 and $550,000. Accordingly, that representation is not one that characterises those payments. The evidence in the form of that “Confirmation of Non-Repayable Gift” does not, therefore, rebut the presumption of a resulting trust, to which I have earlier referred, in respect to the $770,000 funds provided from the Third Respondent to or on behalf of the husband.
The wife has not provided any additional evidence that the Third Respondent gifted either the amount of $230,000 or the amount of $550,000 to the husband. Indeed, in response to questions from the solicitor for the husband, the wife expressly disavowed the assertion contained in paragraphs 4(b) and 5(c) of her Notice Disputing Facts and Authenticity of Documents of Third Respondent. Both of those subparagraphs, contend, in the alternative, that both the sums of $230,000 and also the sum of $550,000 were paid from the Third Respondent to the husband as a gift. The relevant questioning of the wife in that respect was as follows:
[SOLICITOR ADVOCATE FOR THE HUSBAND]: Okay. So in your notice disputing facts and authenticity of documents, so far in the first three paragraphs we’ve got you saying 3(b) as an untrue statement, 4(b) an untrue statement, 5(a) an untrue statement and 5(c) an untrue statement. Is that correct?
[THE WIFE]: Yes.
(Transcript 17 August 2020, p.74 lines 29–32)
It is regrettable that, in this case, the wife was placed in an extremely difficult position as a result of the approach that her solicitors took in responding to the Second and Third Respondents’ Notices to Admit Facts and Authenticity of Documents. Specifically, by listing competing and inconsistent factual contentions in the alternative, the legal advisers for the wife left her in a vulnerable position in cross examination. Nevertheless, the husband made it entirely clear in his Affidavit filed 21 July 2020 that he presented his case on the basis of the responses contained in the two separate Notices Disputing Facts and Authenticity of Documents to the Notices to Admit Facts filed by the Second and Third Respondents. No application has been made by the legal representatives of the wife to resile from or seek to amend either of those Notices Disputing Facts and Authenticity of Documents. Moreover, it is to the credit of the solicitor for the husband that he provided the wife with several opportunities to clarify her position including by way of follow-up questions seeking to draw together and to clarify her contentions and, specifically, whether she was contending that the monies paid by the Third Respondent on behalf of the husband were by way of a gift. The wife’s evidence in that respect was as follows:
[SOLICITOR ADVOCATE FOR THE HUSBAND]:…Come back to what I was asking you a moment ago. I went through each of these propositions - - -?
[THE WILFE]: Yes.
[SOLICITOR ADVOCATE FOR THE HUSBAND]: and you agreed with me?
[THE WIFE]: Yes.
[SOLICITOR ADVOCATE FOR THE HUSBAND]: … that 3(b), 4(b), 5(a) and 5(c) were untrue. You agreed with me on that, didn’t you?
[THE WIFE]: I said that I believe that (a) – 3(a), 4(a) and 5(b) were true.
[SOLICITORADVOCATE FOR THE HUSBAND]: Yes, you did say that, but you also agreed that 3(b), 4(b) and 5(a) and (c) were untrue?
[THE WIFE]: I did, yes.
(Transcript 17 August 2020, p.75 lines 9–18)
Finally, for reasons which I have set out, I have rejected the wife’s contention that monies paid by the Third Respondent to the husband were in actual fact the monies of the husband.
In circumstances where I have held that there is no presumption of advancement in respect to funds advanced by a sibling to another sibling or on behalf of that sibling, it can be inferred that it was intended that the Third Respondent would obtain an interest in the Suburb F property as a result of the Third Respondent advancing, on behalf of the husband, the separate amounts of $230,000 and $550,000 towards the purchase of the Suburb F property. The wife has failed to discharge the onus which rests upon her of establishing that outcome was one which the parties did not intend. Accordingly, I find that the Third Respondent has an interest in the Suburb F property on resulting trust in proportion to the amount that the Third Respondent has contributed to the purchase price but, as I will explain, immediately below, subject to possible adjustment that may be made at the final hearing of this matter.
In light of that finding, it is unnecessary to determine the remaining issues, namely:
·whether the husband holds an interest, right or title in the Suburb F property on constructive trust for the Third Respondent;
·whether the Third Respondent is entitled to an equitable lien and/or equitable charge over the Suburb F property to secure payment to him of the monies expended by him on the acquisition the Suburb F property and/or any additional amount equivalent to the Third Respondent’s equitable interest in the Suburb F property; and
·whether orders should be made that the wife and husband pay the Third Respondent the equivalent sum of the Third Respondent’s declared interest in the Suburb F property.
What is the proportion of the Third Respondent’s interest in the Suburb F property on resulting trust?
As noted by Gibbs CJ in Calverley v Green at 252:
The extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created. The fact that the mortgage debt was repaid by the appellant is therefore not relevant in determining the extent of the interests of the parties in the land, although it may be relevant on an equitable accounting between the parties.
A difficulty I have in determining the extent of the Third Respondent’s interest in the Suburb F property, at this stage of the proceedings, is that it is not possible to accurately determine the amount that the wife and the husband paid in respect to the purchase price of the Suburb F property. In that respect, at paragraph 27(d) of his Affidavit, the husband stated that the proportion of the purchase price of the Suburb F property sourced from his funds and the funds of the wife was $140,000. The husband was, however, in responding to questions from counsel for the wife, less clear about the precise figure and categorised his evidence as set out in paragraph 27(d) as being “approximately correct” and that he would have included that amount “from recollection” (Transcript 18 August 2020, p.160–161; 164).
I further note that, at this stage of the proceedings, I am not in a position to determine whether there should be an equitable accounting between the parties in respect to the mortgage debt which has been paid by both the wife and the husband and/or in respect to any improvements made by the wife and/or the husband to the property.
I am also not in a position to consider, at this stage of the proceedings, whether any adjustment should be made pursuant to the provisions of ss 79, 80 and 90AE of the Act in respect to the Third Respondent’s interest in the Suburb F Property. In that respect, as noted by Mason and Brennan JJ in Calverley v Green at 260:
The provisions of ss.79 and 80 of the Family Law Act 1975 (Cth) now furnish a further ground for not applying the special rules governing the title to property in the case of spouses in order to resolve property disputes between parties who have cohabited but who have not married. On dissolution of a marriage, ss.79 and 80 confer a discretionary power upon the Family Court of Australia to alter the property interests of the parties to the marriage if it is just and equitable to do so.
Section 90AE(2)(b) has been inserted into the Act subsequent to the decision of the High Court in Calverley v Green and, subject of course to arguments presented at final hearing, empowers the Court, in proceedings under s 79 of the Act, if appropriate and necessary, to make an adjustment between the parties, that is just and equitable, that “alters the rights, liabilities or property interests of a third party in relation to the marriage”.

Accordingly, a determination of the extent of the Third Respondent’s interest in the Suburb F property will require further consideration at the final hearing of this matter, at which time the Court will consider any issues of equitable accounting, as referred to by the High Court in Calverley v Green, and/or whether any orders should be made in respect to the Third Respondent’s interest in the Suburb F property pursuant to ss 79, 80 and 90AE(2) of the Act.
The amount of $50,000
Is the husband indebted to the Third Respondent in the sum of $50,000 in respect to funds advanced by the Third Respondent to the husband for the purpose of the husband purchasing the motor vehicle 1?
The evidence of the husband in respect to funds which he obtained from the Third Respondent to purchase the motor vehicle 1 is set out at paragraph 10 of the Affidavit of the Third Respondent filed 9 August 2019, as follows:
I transferred $50,042.61 from my N City bank account to KK Finance Company with beneficiary account of …28 by way of loan to the [husband], such amount being agreed to be repaid to me prior to or upon sale of a motor vehicle 1 purchased by the [husband].
The Third Respondent attached to his Affidavit as annexure “F” a copy of the ledger extract from his N City account. The Third Respondent further attached as annexure “G” a copy of an email from JJ Company showing bank details corresponding to his transfer of funds in respect to the purchase. Those documents establish that the funds were transferred in or about April 2009.
At paragraph 11 of his Affidavit filed 7 April 2019, the Third Respondent states “I also lent Mr Ormonde $50,000 to buy a motor vehicle 1. In retrospect I wish I hadn’t. The loan was not documented. It is not a gift. I want my money back. If need be by having the car transferred to me”.
I give little weight to the evidence set out in paragraph 10 of the Third Respondent’s Affidavit filed 9 August 2019 because of its lack of specificity. That is, it does not provide details of what was said by either the husband or the Third Respondent to each other and, without that evidence, it is not possible to determine whether the Third Respondent is justified in his conclusion that the effect of the agreement between himself and the husband is that the funds which he contributed in respect to the purchase of the motor vehicle 1 would be repaid to him prior to or upon the sale of the motor vehicle 1. This is in circumstances where, in response to questions from counsel for the wife, the Third Respondent acknowledged that he could not recall any conversation which he had with the husband regarding the purchase of the motor vehicle 1. The evidence of the Third Respondent in that respect is as follows:
[COUNSEL FOR THE WIFE]: And that you haven’t taken any steps at all in the 11 years since to either obtain a repayment or – of those funds?
[THE THIRD RESPONDENT]: I don’t know what that – steps.
[COUNSEL FOR THE WIFE]: Have you, in terms - - -?
[THE THIRD RESPONDENT]: Sorry, I don’t understand the context of the word “steps”. What does that mean?
[COUNSEL FOR THE WIFE]: Well, you haven’t done anything to get that money back, have you?
[THE THIRD RESPONDENT]: I don’t know. Like I said, I cannot remember every – maybe I’ve said to my brother, you know, three years ago when I saw the motor vehicle 1 wasn’t in great condition or something, I may have said “Let’s get rid of it”. I don’t recall. I truly cannot recall every conversation I’ve had for no – if I’ve at any time claimed the money back for a car that was purchased. And it’s not top of mind, by the way. You know, it’s a car and it’s – it’s 11 – whatever, how many years ago? It’s a decade ago. But no, I don’t remember having a conversation between me and my brother about the motor vehicle 1.
(Transcript 21 October 2020, p.228–229 lines 42–8)
As he is seeking to assert that the monetary advance which he made in respect to the purchase of the motor vehicle 1 was a loan, the Third Respondent carries the onus of adducing sufficient evidence to satisfy the Court of an intention to create a legally enforceable relationship. In that respect, in Strand & Strand (No. 2) [2018] FamCAFC 247, the Full Court at [24] said:
The characterisation of a particular advance of monies depends on whether the circumstances known to both parties to the transaction at the time demonstrate, objectively, that the payment was made by way of loan. If, for example, the money was paid upon the express condition that it should be repaid then, notwithstanding any absence of formal documentation, and regardless of the motivation for the payment, a contract of loan will exist: Berghan v Berghan (2017) 57 Fam LR 104.
In terms of the Full Court’s reference to the “circumstances” of the case, in South Australia v Commonwealth (1962) 108 CLR 130, Windeyer J at 154 said:
The circumstances may show that they did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. The status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances, may put the matter outside the realm of contract law.
Applying that principle in the area of contract law, in Ermogenous, the High Court at 105 stated:
It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.” To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet “[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts.”
In the context of family relationships, in Ashton v Pratt (No 2) [2012] NSWSC 3 (“Ashton v Pratt (No 2)”), Brereton J at [29] said:
In the absence of express statement that their arrangements were or were not intended to be legally binding, intention to create legal relations is an inference of fact, determined objectively; accordingly, Ms Ashton’s subjective intentions in that respect are not relevant [Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 105-7, [24]-[28]; Darmanin v Cowan [2010] NSWSC 1118, [204]-[215]].
In determining whether such an inference should be drawn, context is relevant. In that respect, in Ashton v Pratt (No 2), Brereton J at [30] further said:
Family, social, and domestic arrangements do not normally give rise to binding contracts, because the parties lack the necessary intention [Teen Ranch Pty Ltd v Brown (1995) 87 IR 308, 310 (Handley JA, referring to Balfour v Balfour [1919] 2 KB 571)].
In circumstances where the Third Respondent was unable to recall details of any conversation which he had between himself and the husband regarding the purchase of the motor vehicle 1, and in the absence of any documentary communication between them, the Third Respondent has failed to present sufficient evidence to the Court that would enable the Court to conclude that the husband and the Third Respondent intended to enter into a legally enforceable relationship in respect to funds advanced by the Third Respondent to the husband to facilitate the purchase of the motor vehicle 1. This is in circumstances where authorities confirm that family arrangements do not normally give rise to binding contracts because the parties lack the necessary intention.
Accordingly, I determine that the husband is not legally obliged to repay monies to the Third Respondent in respect to funds advanced by the Third Respondent to the husband to facilitate the purchase of the motor vehicle 1. Whether the husband does or should feel under a moral obligation to repay those monies to his brother is an entirely different matter.
Claim pursuant to s 106B of Act
It is unnecessary for me to consider the wife’s application pursuant to s 106B of the Act because:
(a)The Court has found that the Third Respondent has not acquired an interest in the Suburb F property pursuant to the First Deed between the husband and Third Respondent;
(b)The Court has found that the Second Respondent has not acquired an interest in the Suburb F property pursuant to either:
(i)the Second Deed between the husband and the Second Respondent; or
(ii)the Limited Recourse Loan Agreement; and/or
(iii)the Call Option Agreement; and
(c)The Court has found that no monies are payable by the husband and/or the wife to either the Second Respondent or the Third Respondent pursuant to those instruments to which I have referred immediately above.
Accordingly, I will dismiss that aspect of the wife’s Application.
CONCLUSION
Accordingly, the only declaration I make in these proceedings is to the effect that the Third Respondent has an interest in the Suburb F property to the extent to which he has contributed the sum of $780,000 towards the purchase price of that property. For reasons which I have set out, it is not possible to calculate precisely the proportion of that interest. That issue will need to be determined at final hearing, at which time the Court will also hear argument as to whether the Third Respondent’s interest in the Suburb F property should be the subject of any equitable adjustment or other adjustment pursuant to s 79 of the Act.
I note that the parties have, to date, incurred combined legal fees of $577,202. The Court has a real concern that, if this matter continues on the same litigation trajectory, costs incurred by the parties will exceed the net assets available for distribution between the parties. I respectfully remind the parties and their legal advisers of their obligations pursuant to r 1.04 of the Family Law Rules 2004 (Cth) which requires the parties to have regard to the proportionality of costs that are incurred in proceedings.

I certify that the preceding three hundred (300) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 11 March 2021

File number(s):	SYC 3012 of 2018
Judgment of:	MCCLELLAND DCJ
Date of judgment:	11 March 2021
Catchwords:	FAMILY LAW – PROPERTY – Equitable interests – Discrete issues – Where third parties to the marriage, the mother and brother of the husband, assert they have an equitable interest in the former matrimonial property of the husband and wife – Consideration given to whether the property is held on express, resulting or constructive trust for the third parties – Consideration given to whether the third parties are entitled to an equitable lien or charge over the property – Consideration given as to whether the husband and/or wife are indebted to the third parties – Where the wife makes an application under s 106B of the Family Law Act 1975 (Cth) that the Court should set aside agreements purportedly executed by the third parties and the husband in respect to monies alleged to be advanced to or on behalf of the husband in respect to the former matrimonial property – Consideration of bona fides of the purported agreements – Where determination of these discrete issues is necessary to ascertain the pool available for distribution between the husband and wife – Declaration made that one of the third parties has a beneficial interest by way of resulting trust in the property – No determination made as to the proportion of that interest – All other claims dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 79, 80, 90AE, 106B Evidence Act 1995 (Cth) s 149 Real Property Act 1900 (NSW), s. 43 Limitation Act 1969 (NSW), s. 14 Conveyancing Act 1919 No 6 (NSW), s. 23C Family Law Rules 2004 (Cth) r. 1.04
Cases cited:	Abrath v North Eastern Railway Co (1883) 11 QBD 440 Allen v Snyder (1979) FLC 90-656 Ashton v Pratt (No 2) [2012] NSWSC 3 Australian Guarantee Corp Ltd v De Jager [1984] VR 483 1 Bale v Mills (2011) 81 NSWLR 498 Baumgartner v Baumgartner (1987) 164 CLR 137 Beatty v Australia and New Zealand Banking Group Ltd [1995] 2 VR 301 2 Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Brown (1993) 31 NSWLR 582 Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26 Calverley v Green (1984) 155 CLR 242 Chalmers v Pardoe [1963] 3 All ER 552 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Cook v Sirius International Insurance Corporation Australia Branch [2020] NSWSC 1631 3 Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 Dullow v Dullow (1985) 3 NSWLR 531 Elias and Elias (1977) FLC 90-267 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Evans v Braddock [2015] NSWSC 249 GC NSW Pty Ltd v Galati [2020] NSWCA 326 Giumelli v Giumelli (1999) 196 CLR 101 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 Green v Calverley (1982) 8 Fam LR 770 Hewett v Court (1983) 149 CLR 639 Jackson v Crosby (No 2) (1979) 21 SASR 280 Jordan & Jordan (1997) FLC 92-736 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lam v Lam [2016] VSC 298 McGlen-McLeod v Galloway [2012] NSWCA 368 McGregor v Nicol [2003] NSWSC 332 Miller v Sutherland (1990) 14 Fam LR 416 Minassian v Minassian [2010] NSWSC 708 Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583 National Commercial Banking Corp of Aust Ltd v Hedley (1984) 3 BPR 9477 Nelson v Nelson (1995) 184 CLR 538 Noack v Noack [1959] VR 137 Ogilvie v Ryan [1976] 2 NSWLR 504 Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400 Pirovic v Barbieri [2020] NSWSC 1892 Saravinovska v Saravinovksa (No 6) [2016] NSWSC 964 Sivritas v Sivratas (2008) 23 VR 349 South Australia v Commonwealth (1962) 108 CLR 130 Strand & Strand (No. 2) [2018] FamCAFC 247 Swettenham v Wild [2005] QCA 264 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Traxys Europe SA v Balaji Coke Industry Pvt Ltd [2011] FCA 1132 United Pacific Finance Pty Ltd (Rec and Mgrs Apptd) v Govindasamy [2020] NSWSC 128 Vadisanis v Vadisanis (2014) 53 Fam LR 345 Vedejs v Public Trustee [1985] VR 569 Warner v Hung; Bellpac Pty Ltd (rec’s and mgrs apptd) (in liq) (2011) 297 ALR 56 Westpac Banking Corp Ltd v Sansom (1994) 6 BPR 13,790 Young v Queensland Trustees Ltd (1956) 99 CLR 560 Brendan Edgeworth et al, Sackville & Neave: Australian Property Law (LexisNexis Butterworths, 10th ed, 2016) Carroll and Kopsen, ‘The Importance of full and frank disclosure in family law financial proceedings and the many consequences of non-disclosure’ (2017) 45(1) Federal Law Review 97 O’Dell E, ‘Liens, Necessity and Unjust Enrichment’ (2006) 57 Northern Ireland Legal Quarterly 288 Westlaw AU, The Laws of Australia (online) 29 Restitution, ‘29.1.10 Equitable Liens’
Number of paragraphs:	300
Date of hearing:	17-19 August 2020; 19-21 October 2020; 2 November 2020
Place:	Sydney by web conference
Counsel for the Applicant:	Mr Guterres
Solicitor for the Applicant:	MistryFallahi Lawyers
Solicitor for the First Respondent:	Mr Brown of Browns the Family Lawyers
Counsel for the Second and Third Respondents appearing on 17-19 August 2021:	Mr Kaufmann
Solicitor for the Second and Third Respondents appearing on 19-21 October 2020 and 2 November 2020:	Ms Johnson of Leigh Johnson Lawyers

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	11 MARCH 2021