Marsh v Chief Commissioner of State Revenue
[2002] NSWADT 203
•10/17/2002
CITATION: Marsh v Chief Commissioner of State Revenue [2002] NSWADT 203 DIVISION: General Division PARTIES: APPLICANT
Terence John Marsh
RESPONDENT
Chief Commissioner of State RevenueFILE NUMBER: 023088 HEARING DATES: 12/08/02 SUBMISSIONS CLOSED: 09/24/2002 DATE OF DECISION:
10/17/2002BEFORE: Higgins S - Judicial Member APPLICATION: first home owners grant - approval of application - First Home Owners Grant Act - first home owners grant - approval of application MATTER FOR DECISION: Prncipal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
First Home Owners Grant Act 2000
Stamp Duties Act 1920CASES CITED: Calverley v Green (1984) 155 CLR 242
Maguire v Commissioner, Office of State Revenue [2001] NSWADT 172
Bull v Bull [1955] 1 QB 234
Muschinski v Dodds (1985 -1986) 160 CLR 583
Koh v Chan (1997) 139 FLR 410
Nelson v Nelson (1994) 33 NSWLR 740
Dwyer v Dwyer (1788) 2 Cox 92; 30 ER 42
Re Holden and Secretary, Department of Social Security [1995] AAT-37ALD738
Triantafilis v Commissioner of Stamp Duties for New South Wales (unreported NSWSC, Hodgson J, 5 October 1995 and NSWCA, Mason P, Priestley JA, Powell JA, 28 April 1998)REPRESENTATION: APPLICANT
In person
RESPONDENT
G Van Emmerik, agentORDERS: 1.The decision of the Commissioner not to approve the applicant's application for a first home owner grant is set aside.; 2.In substitution for the Commissioner's decision, a decision is made to approve the applicant's application for a first home owner grant.
1 On 26 April 2002, Mr Marsh applied to the Tribunal pursuant to s.28 of the First Home Owner Grant Act 2000 (”the Act”) and s.38 of the Administrative Decisions Tribunal Act, 1997 for a review of the decision of the Chief Commissioner of State Revenue (“the Commissioner”) to disallow his objection to the Chief Commissioner’s original decision that a first home owner grant was not payable to him.
2 In January 2001, Mr Marsh wrote to the Office of State Revenue seeking clarification of the First Home Owners Grant Scheme. In that letter Mr Marsh stated that since 1987 he has been the registered proprietor of a residential property in Woodenbong. However, it was a property that he had not paid for and one in which he has never lived or intended to live in. He stated that his parents had at all times lived at the property, they had paid for the property and all the outgoings related to it. The reason he had become the named registered proprietor was because his parents were unable to obtain a bank loan in their name at the time the property was acquired.
3 On 30 January 2001, the Commissioner replied to Mr Marsh’s letter in which he stated: “Under your circumstances, any application lodged at this office would be rejected, however, once rejected, you would have grounds to lodge an objection.”
4 Subsequently, Mr Marsh did lodge an application as he had found a property that he wished to purchase in Grafton. On 31 October 2001, the Commissioner rejected his application. As he was entitled to do, Mr Marsh lodged an objection and provided the Commissioner with some additional material in relation to the Woodenbong property.
5 On 22 March 2002, the Commissioner wrote to Mr Marsh advising him that he had disallowed his objection as he had been unable to establish that he met the eligibility criteria for a grant under the Act. The reason given by the Commissioner as to why Mr Marsh did not meet the eligibility criteria was the fact that Mr Marsh held a “relevant interest” in residential property.
The Legislation
Eligibility for a Grant
6 Under the First Home Owner Grant Act 2000 (“the Act”) a first home owner grant is payable if an applicant fulfils certain “eligibility criteria” and the residential property the applicant wishes to purchase is an “eligible transaction”. S. 7 of the Act states that:
- 7 (1) A first home owner grant is payable on an application under this Act if:
- (a) the applicant or, if there are 2 or more of them, each of the applicants complies with the eligibility criteria, and
(b) the transaction for which the grant is sought:
(i) is an eligible transaction, and
(ii) has been completed.
(3) Despite subsection (1) (b), a first home owner grant is payable before completion of the relevant eligible transaction, as authorised by section 20.
(4) Only one first home owner grant is payable for the same eligible transaction.
7 The exemptions in s 9(2) and s 12(2) of the Act relate to residency and citizenship and do not apply to the circumstances of this case.
8 In this case there is no dispute that the property, which Mr Marsh purchased is an “eligible transaction” under the Act.
9 Division 2 of Part 2 of the Act sets out 5 eligibility criteria, which applicants for a grant under the Act must either meet or be able to show they do not contravene. In this case, the only relevant criteria is that set out in s. 11 of the Act which is the 4th eligibility criteria. This section provides:
- 11(1) An applicant for a first home owner grant is ineligible for the grant if the applicant or the applicant's spouse has, before 1 July 2000, held :
- (a) a relevant interest in residential property in New South Wales , or
(b) an interest in residential property in another State or a Territory that is a relevant interest under the corresponding law of that State or Territory.
(3) An applicant is ineligible if the applicant or the applicant's spouse has, on or after 1 July 2000 and before the date on which the application is made, held an interest in property (other than property to which the application relates) used at any time on or after 1 July 2000 as the residence of the applicant or the applicant's spouse, being:
- (a) a relevant interest in residential property in New South Wales , or
(b) an interest in residential property in another State or a Territory that is a relevant interest under the corresponding law of that State or Territory
10 The term a “relevant interest” is defined in s 5(2) of the Act to include an “estate in fee simple” in the land. There was no dispute that Mr Marsh’s interest in the Woodenbong property is an estate in fee simple in the land.
11 However, s.5(2) is qualified by s. 5(3)(b) which provides that “an interest is not a relevant interest in the hands of a person who holds it subject to a trust”. This subsection must be read subject to s. 5(4) which provides:
- “s.5(4) The Chief Commission may recognise an interest (a non conforming interest) as a relevant interest in land even though the interest may not conform with the above provisions (and even though the interest may not be recognised at law or in equity as an interest in land) if there is, in the Chief Commissioner’s opinion good reason to do so”.
12 In this case, Mr Marsh’s interest in the Woodenbong property arose prior to July 2000 so s.11(1) applies. He has continued to hold that interest since 1 July 2000, but he has never resided there. Accordingly, s.11(3) of the Act does not apply.
Review by the ADT
13 S. 28(2) of the Act provides that “on review before the Tribunal, the applicant’s and respondent’s cases are not limited to the grounds of the objection.”
14 S. 28(3) of the Act also provides that the applicant has the onus of proving the applicant’s case in an application of review.
Issues
15 The issue in this application is whether s.5(3)(b) of the Act applied to Mr Marsh’s interest in the Woodenbong property. That is, does Mr Marsh hold this property on trust for his parents, and was this the case when the property was acquired in September 1987. If he does hold the legal title to the property on trust for his parents it is not disputed that Mr Marsh is eligible for the first home owner’s grant under the Act in respect of his purchase of the Grafton property.
Evidence and Findings of Fact
16 The parties agreed to rely on the material, which had been filed in the Tribunal and no other oral evidence was called. Mr Van Emmerik, on behalf of the Chief Commissioner took no issue in respect of the matters that were asserted in the documentation that had been provided or filed by Mr Marsh.
17 During the hearing Mr Marsh made certain unsworn statements in respect of the documents that had been filed. Mr Van Emmerik on the whole accepted these statements subject to Mr Marsh providing some additional material in support, which he did and which is referred to below.
18 It is not disputed that the Woodenbong property was purchased in September 1987. The property was purchased after Mr Marsh’s father (Mr Marsh senior) was advised that the house he and his wife had been renting for many years, from Mr Marsh’s (senior) employer, was to be demolished. In their statutory declaration, Mr and Mrs Marsh senior state they looked for other properties in their area to buy or rent. They could not find any property to rent and found the Woodenbong property, which was for sale for $36,000. They had saved a deposit of $12,000 and approached their local National Australia Bank (“the Bank”) for a loan for the remaining amount of $24,000. In their statutory declarations, Mr and Mrs Marsh senior each state that their application for a loan was refused because of their age. At the time they were aged 59 and 57 years. Mr Marsh senior was still working at that time.
19 As they were unable to find a suitable property to rent or get a loan to purchase the property they had seen, their son, Mr Marsh (the applicant), decided he would do what he could to assist them in being able to purchase the Woodenbong property. At the time he was working at the local branch of the Bank and the Bank agreed to advance the money to purchase the property on the condition that Mr Marsh was the named borrower and the person named on the title deeds.
20 The Bank “loan application” form for the loan of $24,000 to Mr Marsh (the applicant) states as follows:
- “We advised Mr Marsh due to his age (59 years) and not having a lump sum to come at retirement (65 years) maximum term of loan would be 6 yrs and at current interest rates repayment would be approximately $489 p/m which is fairly high on present wage.
Due to the above circumstances Terry Marsh has approached us for assistance in purchasing house in his name at staff concessional rate.
As house will not be rented out and will be used by Mr and Mrs Marsh to live in now and when they retire, we recommend consideration be given to approval of this loan in T J Marsh’s name at concessional rate.”
21 The loan was approved in April 1987, but was not advanced until 21 September 1987 on settlement of the sale agreement. Mr Marsh (the applicant) stated at the hearing before the Tribunal that he had no involvement in the negotiation of the purchase of the property. This was done by his parents, and the delay in settlement was due to the vendor having to complete some work on the property before the sale could be finalised. However, Mr Marsh (the applicant) stated that he did attend the settlement of the property as this was a task he was required to do in his then position with the Bank.
22 Included in the documents filed in the Tribunal is the sale agreement for the Woodenbong property. The purchasers originally named on this agreement are Mr and Mrs Marsh senior. Their names have been crossed out and the name of Mr Marsh (the applicant) inserted instead.
23 When the Bank loaned the money, a loan account was opened with the Bank in the name of “Terence John Marsh” (the name of the applicant).
24 At the same time as the loan account was opened the Bank opened another account, which was called the “No 2 account”. This account was also opened in the name of “Terence John Marsh”. It was from this account that the regular monthly loan re-payments were debited and then credited to the abovementioned loan account in discharge of the loan amount. Mr Marsh explained that the establishment of the two accounts was the usual practice adopted by the Bank at that time. The loan account is the account, which records the loan amount and the payments made in respect of the loan. It is an account exclusively operated by the Bank and records what has been loaned and what has been repaid. On the other hand, the No. 2 account is the account operated by the customer and into which the customer makes deposits and withdrawals. Included are withdrawals that the customer authorises the bank to make, in this case the monthly repayment of the loan. These repayments are then credited by the Bank to the relevant loan account.
25 At the hearing, Mr Marsh (the applicant) explained that the No 2 account in his name was at no time operated by him. He stated that it was at all times exclusively operated by his parents as their day to day operating account. That is, the account was opened with his parents being the signatories to the account. Mr Marsh also stated that his parents were the ones who deposited and withdrew money into and out of the account. They were also the only ones who exclusively operated the cheque-book that was attached to the account. At the hearing Mr Marsh stated that the reference to “salary” deposits into the No 2 account were references to his father’s salary and not his salary. At the hearing it was agreed that Mr Marsh be given the opportunity to provide further verification of the operation of these accounts by a specified date. In accordance with this agreement Mr Marsh filed further correspondence from the Bank, which supported Mr Marsh’s statement.
26 At the time the loan account and the No 2 account were opened Mr Marsh (the applicant) already had an account with the Bank in his name. This account Mr Marsh stated was his personal account into which he had his salary paid and which he operated exclusively for his own purposes. The bank statements for this account were also in evidence before the Tribunal.
27 The abovementioned No 2 account was closed on 29 March 1989 and a new account in the name of Mr Marsh senior was opened on the same day.
28 The loan was repaid in October 1993.
29 During the time that the No 2 account was in operation (i.e. the period 1 September 1987 to 15 March 1989), the statements of this account record regular withdrawals of $160.00 and the statements of the loan account record a deposit of the same amount on the same date.
30 For the period 30 March 1989 to October 1993 the statements of the account of Mr Marsh senior show regular withdrawals of $161.20 and $161.50. These withdrawals are stated to be “transfer T J Marsh” and the statements of the loan account record a deposit of $160.00 on the same day that the withdrawals were made from the account of Mr Marsh senior. Mr Marsh (the applicant) stated at the hearing that the $1.20 and $1.50 difference between what was withdrawn and what was deposited represented Bank charges relating to each transaction. He stated that no money was transferred from his father’s account into his account. This was confirmed in correspondence that was subsequently filed by Mr Marsh in accordance with what had been agreed between the parties.
31 Mr and Mrs Marsh senior both state that they and not their son repaid the money loaned from the Bank. They also state that their son has never resided at the property, contributed to the costs associated with the property or benefited in any way from the property. Produced to the Tribunal was a document that recorded rate payments on the property to the local council. This document states that pensioner rebates apply to the property. Mr and Mrs Marsh senior both state that they have always paid these rates. Mr Marsh (the applicant) also states that he has never made any contribution to the loan amount or the outgoings of the property.
32 On 21 July 1987, not long after the loan had been approved but not drawn down, Mr Marsh (the applicant) made a will in which he bequeathed all his property to his parents if they should survive him and if they should not, then to his brother and his sister. At the hearing Mr Marsh stated that he made this will so as to protect his parent’s interest in the property that was being purchased for them. However, the will makes no reference to the Woodenbong property.
33 Mr and Mrs Marsh state that they hold the certificate of title to the Woodenbong property and they have always held it in a safe place, which is only accessible to them.
Submissions
34 Mr Van Emmerik for the Chief Commissioner accepted that the only way in which Mr Marsh (the applicant) would be eligible for a first home owner’s grant would be if he held the whole of the Woodenbong property on trust for his parents. He submitted that the evidence showed that Mr Marsh (the applicant) had contributed $24,000 (i.e. 2/3rds) to the purchase of the property. This contribution was the loan, which the Bank had advanced to him to complete the purchase of the property.
35 He went on to submit that the evidence showed that at the time this money was loaned to Mr Marsh (the applicant) the money was used to purchase the property in the name of Mr Marsh (the applicant) and that his interest in the property was not impressed with a trust fully in favour of his parents. However, he did concede that Mr Marsh (the applicant) held 1/3rd of the property on trust for his parents as this represented their contribution to the purchase price.
36 In respect of the repayments of the loan by Mr and Mrs Marsh senior, at the hearing, Mr Van Emmerik argued that this was in effect payment in the form of rent.
37 In submissions filed subsequent to the hearing, Mr Van Emmerik accepted that Mr and Mrs Marsh senior had made all the loan re-payments, had paid all the outgoings and that they were the sole custodians of the certificate of title. He went on to state that the Commissioner accepts that these are factors to indicate an oral trust agreement is in place. However, he maintained his submission to the effect that Mr Marsh (the applicant) had become the legal owner of the property and the beneficial owner to the extent of his contribution.
38 Mr Marsh, on the other hand, submitted that it was never his or his parents’ intention that he become the real owner of the Woodenbong property. He was to become the owner in name only so that his parents were able to obtain the loan necessary to purchase the property. This loan was at all times intended to be paid for by his parents, which they did. That is, he never regarded the property as his – it was at all times that of his parents.
Reasons and Decision
39 As stated above, the question is whether in the circumstances of this case, Mr Marsh as the registered and legal owner of the Woodenbong property, holds that legal interest on trust for his parents.
40 For the purpose of ss. 5(3)(b) and 11(1)(a) of the Act, what must be determined is whether Mr Marsh (the applicant) on acquiring his interest in the Woodenbong property in September 1987, acquired that interest on trust for his parents. No deed of trust was executed so the question of whether a trust was created will be dependent on the partys’ intentions at that time (Calverley v Green (1984) 155 CLR 242 at 251). This intention being inferred from what the parties said and did before or at the time of the purchase, or so immediately after it as to constitute part of the transaction.
41 S. 5(3)(b) of the Act is in broad terms in that it would include an express trust, an implied trust, a resulting trust and a constructive trust. Whether the terms of the sub section is also broad enough to exclude a legal interest, which is partially subject to a trust, or whether it only operates to exclude a relevant interest, which is in its entirety subject to a trust was not raised in this case. For the reasons stated below, it is not necessary to decide this particular issue in this case. However, the Tribunal notes the decision of the Deputy President in Maguire v Commissioner, Office of State Revenue [2001] NSWADT 172, in which the Deputy President appears to have given the section a very wide meaning. In that case the Deputy President held that the applicant’s 1% legal interest was subject to a resulting trust on behalf of his mother, who held the remaining legal interest in the property, and himself as tenants in common in the proportion to which they had contributed to the purchase price [at 47].
42 It is well established that where two or more persons contribute unequally to the purchase price of a property (real property) and the legal title is transferred to only one of them as the sole legal owner, there is a rebuttable presumption of a resulting trust for all of the contributors in shares proportionate to their respective contributions (Bull v Bull [1955] 1QB 234 and Calverley v Green (1984) 155 CLR 242 at 246). That is, the legal owner holds the property on trust for the other contributors to the purchase of the property and the beneficial interest that these contributors hold is equivalent to the proportion of their respective contributions to the purchase price.
43 The same presumption applies where only one person contributes to the purchase price of property in the name of another or in the name of another and himself jointly (Calverley supra and Muschinski v Dodds (1985-1986) 160 CLR 583 and Koh v Chan (1997) 139 FLR 410).
44 This presumption, as with all presumptions, is rebuttable.
45 However, the presumption will not apply where a particular relationship exists between the person who contributes to the purchase money and the person in whose name the property is purchased. The particular relationships include those of husband and wife and parent and child (see Calverley supra, Nelson v Nelson (1994) 33 NSWLR 740, Dwyer v Dwyer (1788) 2 Cox 92; 30 ER 42 and Koh v Chan (supra)). In these circumstances, there is a presumption of a gift, which is commonly referred to as a presumption of advancement (Calverly Gibbs CJ at 249 – 250). As a result of the presumption of advancement the wife and child are presumed to hold both the legal and beneficial interest in the property. If the husband or parent allege that their contribution was not a gift, the onus rests on them to establish that they had a contrary intention at that time.
46 Again, this presumption is rebuttable (see Calverley supra, decision of Gibbs CJ at 251-252).
47 In this case, Mr and Mrs Marsh senior provided $12,000 towards the purchase money of the Woodenbong property. The presumption of advancement was not argued in this case, and in my view correctly so because the evidence establishes that Mr and Mrs Marsh senior had a contrary intention at the time the property was purchased. That is, it was never their intention to advance the $12,000 to their son by way of a gift.
48 Accordingly, the presumption of a resulting trust does apply in respect of this portion of the purchase price of the property. As mentioned above, it is conceded by the Commissioner that Mr Marsh (the applicant) does hold the property on resulting trust, as to 1/3rd of the beneficial interest, for the benefit of his parents. This, the Commissioner appears to argue, is not sufficient to bring Mr Marsh’s (the applicant’s) interest within s.5(3)(6) of the Act. As mentioned above, the Commissioner argued that Mr Marsh’s interest in the property must be shown to be held on trust as to its entirety. This is contrary to the findings of the Deputy President in Maguire v Commissioner, Office of State Revenue [2001] NSWADT 172 at [45-47]. The Commissioner seeks to distinguish that case from the current matter in that Mr Marsh’s parents were never registered as proprietors of the property. Whereas, in Maguire’s case the mother and the son were both registered proprietors as tenants in common, with the son having a 1% share [at paras 2 and 11].
49 In my opinion the facts in Maguire are distinguishable to those in this application. However, this distinction does not mean that the same legal findings apply. This application must be determined on its own established facts.
50 The essence of Mr Marsh’s evidence is that he does not hold any beneficial interest in the property. While he did not articulate it in this form, the effect of Mr Marsh’s case is that while he acquired legal title to the property, at all times it was his intention and that of his parents that they and not he was to be the effective or real owners of the property.
51 The onus rests on Mr Marsh to establish his case and he must establish that the presumption of resulting trust does not apply in that, at the time he became the legal owner of the property, he and his parents intended that his parents and not he would be the beneficial owners of the property in its entirety (Calverley supra at 251 and Muschinski supra at 590).
52 I agree with the submissions of Mr Van Emmerik that the fact that Mr and Mrs Marsh subsequently re-paid the loan cannot be used as evidence to establish the requisite intent of the parties at the time the property was acquired (Calverley supra at 257-8). However, any material that is contemporaneous with the time the property was purchased which evidences the intention of Mr Marsh and his parents is relevant. So too is any relevant documentary evidence created at that time and any evidence subsequent in time to the purchase, which is inconsistent with their stated intention (Calverley supra at 269 and Muschinski supra at 590).
53 It is not disputed that there is no evidence of an expressly declared trust prior to or at the time the property was purchased. That is, there is no evidence of an express declaration of trust by Mr Marsh (the applicant) at this time. However, it is also well established that a trust may be established by operation of law (see Re Holden and Secretary, Department of Social Security [1995] AAT-37ALD738 and Jacob’s Law of Trust in Australia, 6th Edition at [301 to 310]). Such trusts arise either because of the presumed intention of the settlor or because the circumstances are such that it would be inequitable to allow the person who has control of the property to hold it for its own benefit. The former class of trust is referred to as an implied trust and the latter is referred to as a constructive trusts. In my opinion, for the reasons set out below, in this case, it is the former that applies in this case.
54 Having regard to all the material that was before the Tribunal, in my opinion, the evidence establishes that the conduct of Mr Marsh and his parents at the time Mr Marsh acquired the Woodenbong property was such that it rebuts the presumption of a resulting trust in favour of Mr Marsh in respect of loan in his name, which made up the remainder of the purchase price. What the evidence does give rise to is a presumed intention by Mr Marsh that he obtained the loan for the benefit of his parents and that he would hold the legal title of the property, in its entirety, on trust for his parents. Of particular relevance is the following evidence:
- (a) It was Mr and Mrs Marsh senior who wanted to purchase the property. Mr Marsh (the applicant) had no interest in purchasing it;
(b) the initial contract for sale of the property named Mr and Mrs Marsh senior as purchasers;
(c) Mr and Mrs Marsh senior made the initial approach to the Bank for a loan to purchase the property;
(d) Mr Marsh had no involvement in any of the negotiations for the purchase of the property. This was done by his parents;
(e) the Bank loan document which expressly states that due to the circumstances in which the Bank had refused to loan the money to Mr and Mrs Marsh senior, “… Terry Marsh has approached us for assistance in purchasing house in his name …”;
(f) The Bank loan application expressly states that the property would not be rented and that the parties intention was that the property was to be purchased for “… Mr & Mrs Marsh to live in now and when they retire …”.
(g) The Bank loan application expressly stated “….we recommend consideration be given to approval of this loan in T.J. Marsh’s name…”.
(h) Mr Marsh had no intention to live in the property, make any contribution towards repaying the loan or the ongoing costs in relation to the property, or benefit from the property in any way. It was the parties intention that the effective owners of the property were Mr and Mrs Marsh senior who were to live in the property and be responsible for the repayment of the loan and the ongoing costs in relation to the property;
(i) The Bank accounts in Mr Marsh’s (the applicant’s) name were arranged so that his parents and not Mr Marsh were the exclusive operators of the account and the beneficial owners of the monies held therein. That is, the accounts were held by Mr Marsh in name only; and
(j) Mr and Mrs Marsh senior at all times have had possession of the title deeds to the property.
55 There is an argument that the will executed by Mr Marsh is inconsistent with an implied trust, in that it is a document evidencing that he had a claim to an interest in the property. As mentioned above, the will makes no reference to the property.
56 In my opinion, it is equally arguable that the will is consistent with an implied trust having been created, as the parties realised that Mr Marsh was to become the holder of the legal title to the property. Hence the will was a means of transferring the legal title of the property, in the event he predeceased both his parents. This would of course give effect to what the parties had intended at the time in that Mr and Mrs Marsh senior were the effective owners of the property. The will can not displace any equitable interest Mr Marsh’s parents had in the property or acquired in the property. In this case I accept Mr Marsh’s explanation that he executed the will in order to protect his parent’s interest in the property, as the effective owners.
57 In relation the payments made by Mr and Mrs Marsh senior after the property was purchased, I do not accept Mr Van Emmerik’s submission that these were payments in the form of rent. Had there been payment of rent, this would be contrary to an implied trust being created. Instead, the evidence clearly establishes that these payments were re-payments of the loan.
58 The Commissioner sought to rely on the decision of Triantafilis v Commissioner of Stamp Duties for New South Wales (unreported NSWSC, Hodgson J, 5 October 1995 and NSWCA, Mason P, Priestley JA, Powell JA, 28 April 1998) and Calverley v Green (supra). In my opinion the decision of Triantafilis is distinguishable from this application. The decision related to the question of who had “actually paid” for the purchase of a property for the purpose of determining the amount of stamp duty that was payable under the provisions of the Stamp Duties Act 1920 (NSW). That is not the issue in this case.
59 In Calverley the question was whether the presumption of a resulting trust had been rebutted by a contrary intention. The Court found it had not. The principles cited in this case equally apply to this case, however, for the reasons stated above, in my opinion the evidence in this case does rebut this presumption.
60 Accordingly, in my opinion the evidence establishes that at the time the property was purchased the parties intended that Mr Marsh was to be the holder of the legal title to the property and that he otherwise held it on trust for his parents. That is, an implied trust was created by Mr Marsh (the applicant) in favour of Mr and Mrs Marsh senior at the time the property was acquired. That implied trust related to the money loaned by the Bank or alternatively in respect of his beneficial interest in the property to the extent it related to the loaned money.
61 If it is the latter, s. 23C(1)(b) of the Conveyancing Act 1919, in order to create such an interest in the property the declaration of trust has to “… be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.” However, sub-section 23C(2) of the Conveyancing Act 1919 provides that the abovementioned provision does not affect the creation or operation of resulting, implied or constructive trusts. In this case, sub-section 23C(2) would apply as Mr and Mrs Marsh senior’s interest was created by way of an implied trust.
62 For the reasons stated above I am of the view that the Commissioner’s decision is not the correct and preferred decision and I order that:
- (a) the decision of the Commissioner not to approve the application is set aside; and
(b) in substitution for the Commissioner’s decision, a decision is made to approve the applicant’s application for a first home owner grant.
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