Minassian v Minassian

[2010] NSWSC 708

CITATION:	Minassian v Minassian [2010] NSWSC 708
HEARING DATE(S):	26 to 28 May 2010, 18 June 2010 and 25 June 2010
JUDGMENT DATE :	6 July 2010
JUDGMENT OF:	Ball J
DECISION:	1. The proceedings be dismissed with costs. 2. The order made on 21 October 2008 extending the operation of caveat number Y951369 be vacated. 3. The plaintiff forthwith withdraw caveat number Y951369. 4. Judgment for the cross-claimant for possession of the Carlingford property. 5. Leave to the cross-claimant to issue a writ of possession for the Carlingford property at any time after 31 August 2010.
CATCHWORDS:	TRUSTS - Express trusts - resulting trusts - constructive trusts - requirements of writing - EVIDENCE - Documents - where lost - admission of secondary evidence - need to have personal knowledge of contents - admissions as to contents - admissions contained in later contract
LEGISLATION CITED:	Conveyancing Act 1919 Evidence Act 1995
CATEGORY:	Principal judgment
CASES CITED:	Australian Competition & Consumer Commission v Pratt (No 3) [2009[ FCA 407 Caiglia v Caiglia [2010] NSWSC 341 Calverley v Green (1984) 155 CLR 242 Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010 Green v Green (1989) 17 NSWLR 343 Last v Rosenfeld [1972] 2 NSWLR 923 Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 337 Lustre Hosiery Ltd v York (1935) 54 CLR 134 Mack v Lenton (1993) 32 NSWLR 259 Maks v Maks (1986) 6 NSWLR 34 Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337 Rochefoucauld v Boustead [1897] 1 Ch 196 Toll (FGCT) Pty Ltd v Alphafarm (2004) 219 CLR 165
TEXTS CITED:	Australian Law Reform Commission, Interim Report on Evidence (ALRC 26), Vol 1, para 651 Australian Law Reform Commission, Report on Evidence (ALRC 38) Cross on Evidence (7th Ed)
PARTIES:	George Minassian (Plaintiff) Elie Minassian (Defendant)
FILE NUMBER(S):	SC 2008/280752
COUNSEL:	Mr J Loofs (Plaintiff) Mr G Waugh (Defendant)
SOLICITORS:	Rowlandson & Co (Plaintiff) Fordham Lawyers (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

6 JULY 2010

2008/280752 GEORGE MINASSIAN v ELIE MINASSIAN

JUDGMENT

1 The plaintiff (who, for convenience, I will refer to as George) and the defendant (Elie) are brothers. George, who is the older of the two, is the executor of their late mother’s will. He is also the sole beneficiary. Elie is the registered proprietor of a property in Carlingford. George, as executor, claims that Elie holds a 50% interest (or, as a fall back, some other interest) of the Carlingford property on trust for the estate. The trust is said to arise in a variety of ways. George has filed a caveat in respect of that claim and, by consent orders made on 21 October 2008, the operation of that caveat was extended until further order. Elie has filed a cross-claim seeking possession of the property.

Background and facts

2 George and Elie have an older brother, Harry Minassian. They also have four sisters – Maria Pampalian, Rita Keosseian, Katia Zatarian and Sylvia Geroyan. For convenience, I will refer to each of them by their Christian names. All of them, apart from Katia (who lives overseas), gave evidence – the three sisters, for George; Harry, for Elie.

3 The family originally came from Syria, although a number of family members moved to Lebanon before migrating to Australia.

4 The first to arrive in Australia was Rita in 1970 (with her husband Joseph) and Harry in 1971. Maria and then George came in 1974. George worked for Harry for a time and, towards the end of 1975, commenced employment with Rheem. Maria and George lived with Harry when they arrived in Australia, in each case for approximately 12 months. George moved out in about 1976 to rental accommodation in Artarmon.

5 Elie arrived in Australia in May 1976. He was 14 years old at the time. He, too, lived with Harry, who, by that time, had married. An affidavit was also filed from Harry’s wife (Maggie). However, due to ill health, she was not available for cross-examination.

6 Harry and Maggie were Elie’s guardians. They cared for all his needs including paying him pocket money whilst he was at school. From about the age of 15, Elie worked at Woolworths on Thursday nights and Saturday mornings, where he earned approximately $50 per week, and at a carwash in Gladesville on Sunday, where he earned approximately $15 per day. He graduated from school in 1977 and took up a fulltime position in Woolworths until early 1978, when he started working fulltime as an apprentice jeweller. While fulltime at Woolworths, Elie earned approximately $140 per week plus approximately $30 per week in overtime. During the time that he was an apprentice jeweller he earned approximately $100 per week plus some overtime. He also continued to work at Woolworths on Thursday nights and Saturday mornings and at the carwash on Sundays.

7 In early 1978 George and Elie rented a small property in Meadowbank. Elie says that they shared the rent (which was $40 per week) and household expenses. George says that the rent was $45 per week and that he paid it together with the cost of utilities.

8 In early 1979, George and Elie’s parents (Mr and Mrs Minas) migrated to Australia with Sylvia. In anticipation of their arrival, George and Elie moved to a larger unit in Artarmon and Mr and Mrs Minas and Sylvia lived with them. Again, Elie says that he and George shared the rent, utility expenses and other miscellaneous expenses, while George says that he paid the rent and those expenses.

9 Neither Mr nor Mrs Minas worked when they first arrived in Australia. Neither could speak English and, indeed, neither learned a significant amount of English during their lives. Mr Minas’s native tongue was Armenian and that is the language that he normally used with his children. Mrs Minas’s native tongue was Arabic and any conversations including her were normally conducted in that language. Mr and Mrs Minas arrived in Australia with approximately USD10,000 in cash which was worth approximately $8,000 at that time. There is a dispute about whether they had other significant assets in the form of jewellery, Persian rugs and antique furniture which they either carried in their luggage or which were shipped separately. For reasons that will become apparent, I do not think that it is necessary to resolve this dispute.

10 In December 1979, Mr Minas bought a fruit and vegetable shop. The amount he paid for it is unclear. George says that it was $3,000. Harry said in his affidavit that it was $6,000, but under cross-examination said that his father told him that it was $5,000. Again, for reasons that will become apparent, I do not think that anything turns on the resolution of this dispute. Elie gave up his apprenticeship as a jeweller and went to work full-time in the shop with his father. Other family members, including George, provided some assistance to them when the business commenced. Again, there is a dispute about how much assistance they provided. Again, I do not think that anything turns on its resolution. There can be no doubt, however, that it was Elie and his father who were principally responsible for working in the shop. The business was run down when they bought it. Over time, Elie and his father built it up. Just when it became profitable is unclear, but it unquestionably did and, in 1984, it was sold for approximately $25,000. The proceeds of sale were split equally between Elie and his father.

11 The genesis of the proposal to acquire the Carlingford property is not entirely clear. The likelihood is that Harry suggested to the members of the family living in the Artarmon unit that it would be more sensible for them to buy a property rather than to continue to pay rent. It appears that Maggie found the property and, after it was inspected by several family members, it was agreed among the family that it was an appropriate property to buy. The asking price was $75,000. There were a number of discussions between Mr Minas, Harry, George and Elie about how the purchase of the house would be financed. Mrs Minas, no doubt, also participated in those discussions on occasions. Mr Minas, George and Elie also met with the manager of the local Commonwealth Bank to discuss borrowing part of the purchase price. There is a significant dispute about these discussions and the way in which the purchase price for the property was funded.

12 In an affidavit sworn on 18 September 2008 (which was not read at the final hearing, but a paragraph of which was tendered on behalf of Elie) and in the original verified statement of claim, George said that the purchase price was made up of a loan from CBFC Limited of $5,000, $10,000 cash from him, $25,000 cash from his parents and $35,000 borrowed from the Commonwealth Bank. George also said in that affidavit that he contributed a further $7,000 for the purchase of furniture and his parents a further $14,000 “for the house”. George said that Elie had no money at the time and made no contribution to the purchase of the property. In the statement of claim, George also alleged that the interest payments on the $35,000 loan were paid as to one-half by him and as to one-half out of the business account of the fruit and vegetable shop.

13 In his verified defence and in his affidavit evidence, Elie says that the purchase price was made up of $35,000 from the Commonwealth Bank, $15,000 from CBFC Limited, $5,000 borrowed by Harry from the Bank of New South Wales, $7,000 from Mr and Mrs Minas and $7,000 to $8,000 from each of him and George.

14 The principal affidavit relied on by George in these proceedings was sworn on 3 February 2010. In that affidavit, George accepts that he was originally mistaken about how the purchase price was made up. He says that, having thought about the matter again “deeply”, his memory is that $35,000 came from the Commonwealth Bank, $15,000 from CBFC and $5,000 from Harry. However, he maintains that his parents contributed $15,000 and that he contributed $5,000 towards the house and $5,000 for conveyancing fees and other costs associated with the purchase. He said nothing in that affidavit about the cost of furniture.

15 There is also a dispute about what happened at the meetings with the bank manager.

16 George says that before going to the bank his father proposed that he, Mrs Minas, George and Elie take equal shares in the Carlingford property. In the context of that conversation, George says that Mr Minas said to Elie that, given that he (Elie) did not have enough money for the deposit, he expected Elie to pay the loan repayments. George also says that Mrs Minas at that time produced a significant amount of gold jewellery which she suggested could be sold to raise money for the house. George’s recollection is that, at the second meeting with the bank, the manager said that the bank would not lend Mr and Mrs Minas any money given their age and their lack of capacity to repay the loan and that consequently only he and Elie could be the registered owners. Mr Minas was upset at the bank’s attitude. In response, George says that he offered to see a solicitor to have some sort of agreement drawn up to protect Mr and Mrs Minas’s interest. Mr Minas agreed. According to George, he had a number of discussions with Mr Hedley Proctor of Hedley Proctor Lawyers in relation to the preparation of that agreement and that he, Elie and Mr and Mrs Minas met with Mr Proctor. At that meeting, Mr Proctor explained the effect of a draft of the agreement that he had prepared. George says that the agreement was subsequently signed on 11 December 1980 by himself, Elie and Mr and Mrs Minas. That agreement appears to have been lost. However, George gave the following evidence of its terms:

“I recall that the 1980 agreement was signed by myself, the defendant and my parents and witnessed by Proctor. I recall that the 1980 agreement consisted of 2 to 3 pages. I read the document and although I cannot remember each term of the 1980 Agreement, I recall reading that the agreement reflected my parents’ contribution to the purchase price of the Carlingford property and I distinctly recall a provision in the 1980 agreement that if the Carlingford property sold, after the deduction of relevant expenses and the discharge of any mortgage, the proceeds of sale were to be distributed in one-quarter shares to each of myself, the defendant and my parents. I also remember a term of the 1980 agreement that the defendant and I would be solely responsible for the mortgage payments.”

17 Elie says that Mr Minas only attended the first meeting with the bank manager. At that meeting, they asked to borrow $55,000. The bank manager responded that the Commonwealth Bank could only lend $35,000, but that CFBC could lend a further $15,000 (at a higher interest rate). It was for that reason that another $5,000 had to be borrowed from Harry. Elie says that all the discussions proceeded on the assumption that George and he would purchase the house between them. He denies that there were any family discussions about George and their parents buying the house in equal shares. Elie accepts that his father raised the question of what would happen to him and Mrs Minas when George and Elie got married and that he replied that they could live in the house for the rest of their lives. Elie denies that he ever saw or signed the 1980 agreement, or was aware of its existence until it was raised in connection with these proceedings.

18 The Carlingford property was purchased on 5 December 1980 in the names of George and Elie.

19 George and Elie also disagree about who made the repayments on the various loans. George says that he paid half the Commonwealth Bank and CBFC loans until early 1984. He says that he repaid the whole loan obtained through Harry. Elie, on the other hand, says that George paid half of the repayments due on each loan for about 6 to 8 months and then stopped paying altogether.

20 George married Susan Giroian (Susan) in December 1982. Susan also gave evidence (for Elie). She worked for a time as Elie’s secretary. George and Susan lived in the Carlingford property after their marriage for about 6 weeks and then moved out to a unit in Ryde – as a result, it appears, of an argument between George and his father.

21 Towards the end of 1983 George decided to buy a service station. He needed $10,000 to do so. Elie agreed to give him that amount of money in exchange for George’s interest in the Carlingford property. The transfer, which is dated 14 October 1983, shows a half interest in the property being transferred to Elie for $36,000. It is agreed between the parties that Elie received $10,000 cash. George remained liable on the mortgage to the Commonwealth Bank and CFBC but he accepts that Elie became solely responsible for making those payments from “early 1984”.

22 I will return to the 1980 agreement later. However, leaving that agreement aside for the moment, I generally accept Elie’s version of what happened up until early 1984, rather than George’s. In particular, I accept Elie’s evidence of how the purchase price for the property was made up and of the contributions he made to rent and mortgage repayments. There are several reasons for that.

23 First, I think George demonstrated that he had a poor recollection of what occurred in relation to the purchase of the property, although he claimed to have a very clear one. He accepts that the original evidence he gave in relation to the parties’ respective contributions was mistaken. His revised evidence appears to be little more than a reconstruction based on the evidence given by Elie. Elie, on the other hand, gave consistent and appropriately qualified evidence concerning his recollection of the sources of funds for the purchase price. Moreover, George’s revised evidence was not limited to the contributions made to the purchase price. In the original verified statement of claim, George said that the Elie’s share of the mortgage payments came out of the business account of the fruit and vegetable shop. However, in his affidavit evidence he concedes that Elie made the repayments.

24 Secondly, I do not accept George’s evidence that Elie had no money at the time to contribute to the purchase price. It is clear that Elie worked very hard from the time that he turned 15. The evidence is that he was meticulous in keeping track of his money in a notebook. Elie said that he saved a substantial part of the money he earned and that evidence was not seriously challenged. His evidence on this point was supported by the evidence of Harry and Maggie. Both said that Elie was encouraged to save whilst he was living with them and that that is what he did. Maggie was not cross-examined due to her ill health. That must be taken into account in considering what weight is to be given to her evidence. However, Harry was not cross-examined on the topic of Elie’s savings either. For that reason, I think some weight can be placed on the evidence Maggie gave on that topic. On George’s account of the events, Elie effectively did nothing to contribute to the family’s living expenses until he started paying half the mortgage repayments on the Carlingford property, and presumably spent all the money he earned on himself, since, according to George, he had none to contribute to the purchase of the Carlingford property. I find that implausible having regard to the hard work Elie was prepared to do, the care with which he kept track of his money, the evidence concerning his preparedness to save and his willingness to take on the whole responsibility of paying off the loans in respect of the property when George moved out. Having regard to the amount that he was earning from the age of 15, it does not strike me as implausible that he would have saved about $7,000 to $8,000.

25 In my opinion, what happened was that George, Elie and Mr and Mrs Minas scraped together what money they could to finance the purchase of the house. In order to do so, Mr and Mrs Minas may have sold some possessions. Alternatively, by that stage, the fruit and vegetable shop may have started to generate income for Mr Minas which he could apply towards the house. But I do not think that it follows from that that it was likely that Elie contributed nothing. I think that each contributed what they had; and, as I have said, it does not strike me as implausible that, in Elie’s case, that amount was approximately $7,000 to $8,000. The four of them were still $5,000 short. As a result, it was necessary for them to borrow that amount through Harry.

26 My third reason for preferring Elie’s account of what happened is that I do not find George’s account of the conversations with the bank manager plausible. I accept that the bank was not willing to lend to Mr and Mrs Minas alone. But it strikes me as odd that the bank would insist that they could not take an interest in the property at all – particularly in circumstances where they had contributed a significant amount towards the purchase price.

27 Finally, George said that he continued to pay half the mortgage repayments until early 1984 and repaid the whole of the loan arranged by Harry. I do not find this evidence plausible. George moved out of the Carlingford property in early 1983, shortly after he got married. He transferred his interest in the property to Elie in October 1983. Although he received only $10,000 cash, the price he was recorded as paying (that is, $36,000) was consistent with Elie acquiring half the house from George and taking responsibility for each of the loans. I find it implausible that George would have continued to contribute to repayment of the loans after he moved out. In addition, Harry gave evidence that, several months after he had taken out the loan of $5,000, he received notices from the bank saying that the repayments were overdue. He says that he spoke to Elie about it and that, following that conversation, he heard nothing further. I accept this evidence. It seems plausible that, having acted as Elie’s guardian, Harry would speak to Elie; and it seems equally plausible that, given what Harry had done for Elie, Elie would not let him down. The likelihood is that Elie made sure that the loan repayments were made by paying them himself.

28 Mr Loofs, who appeared for George, submitted that I should accept George’s evidence about the conversations concerning the property because it is highly improbable that the parties did not, as Elie contended, discuss how the property was to be owned. That is particularly so in circumstances where Mr Minas expressed concern about his and his wife’s position. Mr Loofs says that if I reject Elie’s account of what happened I should accept George’s. I do not accept this submission. Until the time the Carlingford property was purchased, George and Elie were responsible for providing accommodation for the family. It seems clear that Mr and Mrs Minas, George and Elie accepted that George and Elie would be responsible for the mortgage repayments and the outgoings (such as rates and utilities) in relation to the Carlingford property. It does not strike me as odd in those circumstances that the family simply assumed that the house would be bought by George and Elie. Mr Minas raised concerns about his and his wife’s position when Elie and George married. But I do not think that it follows that he was concerned that he and his wife should have an interest in the property, as opposed to a right to stay there for as long as they wanted.

29 Nothing further of significance happened until April 1990. At that time, Mr Minas went to see Mr Phair, a solicitor, to obtain advice in relation to the Carlingford property. Mr Phair was with the same firm as Mr Proctor (the lawyer who is said to have prepared the 1980 agreement). How Mr Minas came to see Mr Phair is unclear. For some reason, Mr and Mrs Minas became concerned about their position. Sylvia says that she took her father to see Mr Phair on at least two occasions and translated for him. Mr Phair prepared an agreement between Mr and Mrs Minas and Elie. He also prepared wills for Mr and Mrs Minas and a caveat.

30 The agreement records the following in Recital A:

“On 11 ^th December 1980 Mr. George Minassian entered into an agreement which provided inter alia that in the event of a sale of [the Carlingford property] Mr. & Mrs. Minas would receive one half of the proceeds of sale subject to repayment of loans to the Commonwealth Savings Bank of Australia and CBFC Limited.”

Recital B records that the parties wished to vary the 1980 agreement. Clause 1 then provides that Mr and Mrs Minas could remain in the property for the rest of their lives. They agreed, in return, to keep the property in good repair and to pay outgoings. Clause 5 provides that the property could be sold at any time with the consent of all the parties. Clause 6 provides that the parties otherwise confirmed the terms of the 1980 agreement.

31 The wills prepared for Mr and Mrs Minas are in similar terms. Each of Mr and Mrs Minas leaves their estate to the other, but in the event that one predeceases the other they leave their interest in the Carlingford property to Elie and the balance of their estate to be divided equally between their children.

32 The interest sought to be protected by the caveat is said to be “an equitable interest in the property pursuant to agreement dated 11 December 1980”.

33 Mr Phair was not prepared to give an affidavit. However, he was subpoenaed by George and gave evidence in chief orally. He could shed little light on the documents.

34 There is a dispute about the circumstances in which the 1990 agreement came to be signed by Elie. At the time, Elie had a panel beating business. He gave evidence that his father came to his workshop one day and insisted that Elie sign the 1990 agreement immediately. Elie tried to resist doing so and told his father that he wanted to obtain legal advice in relation to the document. However, after a sometimes heated discussion lasting about an hour, he signed the document. He also signed each of his parents’ wills. Elie said that he did not read the documents carefully and that he only agreed to sign them because of a concern about waiting customers and because of the pressure that was being placed on him. Sylvia, on the other hand, says that Elie was asked to go to the Carlingford property one day to sign the agreement, which is what he did.

35 I prefer Elie’s account of what happened in relation to the 1990 agreement. Sylvia had no real recollection of the 1990 agreement or the circumstances in which she says it was signed. It strikes me as implausible that Elie would sign the agreement without question. In addition, the fact that he signed both his parents’ wills is consistent will Ellie’s account of what happened. It is hard to believe that he would have done so if the circumstances in which he signed the documents were calm and considered, as Sylvia suggests. Mr Loofs, who appeared for George, submitted that it was implausible to believe that Elie could have spent an hour with his father without reading the documents carefully. I do not accept that submission. I do not find it at all implausible that in a sometimes heated discussion between father and son Elie would focus on the discussion rather than the documents he was being asked to sign. What I do find implausible is that Elie would as a conscious act sign his parent’s wills for the purpose of confirming or giving effect to some legal right his parents had.

36 Mr Minas died in 1998. In accordance with his will, his estate passed to Mrs Minas.

37 In May 2000, Mrs Minas made a new will. She was taken by Rita and Maggie to see a solicitor in order to do so. George says (and I accept) that he did not become aware of that will until 2001. Under that will, Mrs Minas left her estate “(including my 50% share in the property situate at … Carlingford)” to be divided between her children other than Elie in proportions set out in the will. Why Elie was excluded remains unclear. George suggests that it was because Mrs Minas and Elie had had a falling out. Elie denies that. I do not think that it is an issue that I need to resolve in these proceedings.

38 In about September 2001, George, who had separated from his wife in 1996, moved back to the Carlingford property with his mother. He had ceased to operate the service station a number of years earlier and, from the time he moved back to Carlingford, he looked after his mother and was paid a carer’s allowance.

39 Mrs Minas made another will – her last – in November 2002. Under the terms of that will, she appointed George as her executor and left him the whole of her estate “(including my beneficial interest in the property situated at … Carlingford)”. She was taken to the solicitors to make that will by George and a family friend, Adib Khourieh.

40 Mrs Minas died in 2008. Shortly after her death, Elie sought possession of the Carlingford property.

41 George puts his case in four ways. First, he says that the 1980 agreement created an express written trust to the effect that the Carlingford property would be owned by Mr and Mrs Minas, George and Elie in equal shares or, alternatively, that Mr and Mrs Minas would each be entitled to 25 per cent of the proceeds of sale of the property. Second, he relies on an express oral trust to the same effect. Third, he relies on a constructive trust arising from the common intention of the parties to the same effect. Fourth, he relies on a resulting trust arising from Mr and Mrs Minas’s contribution to the purchase price.

Express written trust arising from the 1980 agreement

42 George seeks to prove the existence and terms of the 1980 agreement in various ways. First, he relies on direct evidence from those who say they saw the agreement – that is, himself and Rita. Second, he seeks to infer its existence and its terms from the contents of the 1990 agreement. Third, he relies on statements made by or on behalf of Mr and Mrs Minas concerning their interest in the Carlingford property. Those statements take various forms. There are the statements in the 1990 wills which were signed by Elie. There is the statement in the caveat concerning the interest that they claimed. There are the statements in Mrs Minas’s later wills. Finally, George and his sisters and some other witnesses give evidence of oral statements made by Mr and Mrs Minas concerning their interest in the property. Some of those statements were made in discussions leading up to the acquisition of the property. A substantial number of them were made after the property had been purchased.

43 Section 48 of the Evidence Act 1995 sets out how a party may adduce evidence of the contents of a document. Relevantly, it permits a party to prove the contents of a document by adducing evidence of an admission made by another party to the proceeding as to the contents of the document (s 48(1)(a)) or, where the document in question is not available to a party, by “adducing from a witness evidence of the contents of the document in question” (s 48(4)). Clause 5 of the Dictionary of the Evidence Act relevantly provides that a document is taken not to be available to a party if “it cannot be found after reasonable inquiry and search by the party”. Section 51 of the Evidence Act abolishes the common law principles applicable to the proof of the contents of a document.

44 Although s 51 of the Evidence Act abolishes the common law principles relating to the admissibility of evidence to prove the contents of documents, it does not affect the principle that, at least where property disputes are in question, clear and convincing evidence of the contents of the lost document is necessary. In Maks v Maks (1986) 6 NSWLR 34, for example, the plaintiff sought to establish by oral secondary evidence the contents of a declaration of trust by the defendant in favour of the plaintiff in respect of a half share in a house. McLelland J said (at 36):

“I am of the opinion that where the original writing is not produced and secondary evidence is relied on, there must be clear and convincing proof not only of the existence, but also of the relevant contents, of the writing, of the same order as the proof required to establish an entitlement to the rectification of a written instrument …, the two classes of case being to my mind in relevant respects analogous.”

See also Mack v Lenton (1993) 32 NSWLR 259 at 261 per Young J; Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010 at [29] per von Doussa J.

45 There is no specific provision of the Evidence Act dealing with how the existence of a document is to be proved. That depends on the common law as modified by the general provisions of the Evidence Act.

46 I think that it is more likely than not that there was some form of written agreement dated 11 December 1980. I say that largely because of the terms of the 1990 agreement and the caveat prepared at the same time. I deal below with the question whether the fact that Elie signed the 1990 agreement (and the wills) can be taken as an admission by him in relation to the 1980 agreement. However, even if it is not, in my opinion, the 1990 agreement and the caveat are admissible to prove the existence of the 1980 agreement. Mr Phair signed the caveat. He could not recall seeing the 1980 agreement. However, he gave evidence that it was his practice to satisfy himself that there was at least some basis for the claim made in the caveat. The likelihood is that he saw a document dated 11 December 1980 and it was that document that formed the basis of that claim. Mr Phair could not recall preparing the 1990 agreement. However, he signed the letter dated 23 March 1990 to Mr and Mrs Minas enclosing a draft of that agreement. Again, the likelihood is that he reviewed the draft agreement even if he did not prepare it himself; and, again, it is difficult to see where the reference to an agreement bearing a date of 11 December 1980 would have come from other than from a document bearing that date. It is possible that Mr Phair did not actually see the 1980 document but was relying on a description of it given to him by Mr Minas or George. But in that case the document still must have existed in order to be described. The only other alternative is that Mr Minas or George gave Mr Phair the date and some description of the document sufficient to permit the caveat and 1990 agreement to be prepared in circumstances where no such document existed. That strikes me as unlikely.

47 What, then, were the contents of the 1980 agreement? As I have said, s 48 of the Evidence Act determines what is admissible in answering that question. Mr Loofs made two submissions in relation to that section. First, he submitted that the 1980 agreement was “not available” to George within the meaning of the Act. Consequently, he said, s 48(4) applied. Second, he submitted that that subsection should be read as permitting the admission of all evidence admissible in accordance with other provisions of the Act which was relevant to the contents of the document, or that it should at least be interpreted as permitting admissible hearsay evidence of the contents of the document.

48 I am prepared to accept that the 1980 agreement was “not available” to George in the sense required by the Evidence Act. The likely location of the document was at Mr Phair’s offices or among his parents’ papers. A subpoena was served on Mr Phair to produce documents but he did not produce a copy of the 1980 agreement. Although George did not give direct evidence of the searches that he had made among his parents’ papers, it is clear that he did search through those documents and he attached a number of them to his affidavit. I am prepared to infer that, as part of his searches, he also looked for the 1980 agreement and was unable to find it.

49 However, I do not accept Mr Loofs interpretation of s 48(4) of the Evidence Act. That subsection permits a party to adduce evidence of the “contents’ of the document. That evidence could take the form of evidence from a person who has seen the document and who can give evidence about what it contained. It could also take the form of another document that purported to record the contents of the document that is unavailable: Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 337. However, I do not think that it includes evidence concerning people’s intentions or beliefs from which the contents of the document might be inferred. That evidence is not evidence of the contents of the document.

50 For similar reasons, I do not think admissible hearsay evidence of the contents of a document (such as evidence from a witness that Mr Minas told the witness about the contents of the 1980 agreement) is admissible under s 48(4). That evidence is evidence of what one person said to another concerning the contents of the document in question. It is not itself evidence of the contents of the document.

51 There is some support for the conclusion of the previous paragraph in the Report of the Australian Law Reform Commission that led to the Evidence Act (ALRC 38). In its Interim Report on Evidence (ALRC 26), the Commission recommended adoption of similar principles to those contained in the US Federal Rules in relation to the proof of the contents of documents. That recommendation was adopted in the Final Report (see ALRC 38 para 231) and the legislation drafted by the Commission to give effect to that recommendation (see cl 125(3) of the draft legislation appended to the Commission’s Report) was based, in part, on Rule 1004 of the US Federal Rules. That rule provides that “[t]he original is not required and other evidence of the contents of a writing, recording, or photograph is admissible” if certain conditions are satisfied. Section 48(4) is in substantially the same terms as cl 125(3). Rule 1004 does not state what “other evidence” is admissible to prove the contents of the document. However, Wigmore states the principle at common law in these terms:

“a person who proposes to testify to the contents of a document, either by copy or otherwise must have read it . He may not describe its contents merely on the credit of what another has told him it contains even though his informant purports to have read it aloud in the presence: Wigmore on Evidence , 1972 Volume 4, § 1278 (emphasis in original).”

52 It is hard to believe that the US Federal Rules intended to depart radically from the principle stated by Wigmore without expressly saying so. Similarly, it is hard to believe that the Australian Law Reform Commission in recommending adoption of a clause based on the US Federal Rules (cl 125(3)) intended to depart radically from that principle.

53 There is nothing in s 48(4) of the Evidence Act to suggest that it sets out the exclusive means of proving the contents of a document that it is not available to a party. It is still open to a party to prove the contents of a document not available to the party in accordance with subs (1) – and, in particular, by adducing evidence of an admission by a party concerning the contents of the document.

54 It follows from what I have said that the contents of the 1980 agreement can be proved either through admissions by Elie or through direct evidence of someone who saw the agreement.

55 Elie signed the 1990 agreement and, in the absence of an application to have it set aside, is bound by its terms: Toll (FGCT) Pty Ltd v Alphafarm (2004) 219 CLR 165. However, it is not a deed and consequently does not give rise to an estoppel in relation to the facts asserted in it: see J D Heydon, Cross on Evidence (7^th ed) at [39160]. In any event, any such estoppel would only operate in proceedings based on the 1990 agreement. It would not operate in proceedings the 1980 agreement: Offshore Oil NL v Southern Cross Exploration NL 9 (1985) 3 NSWLR 337. The 1990 agreement, and the wills signed by Ellie, may amount to an admission by him in relation to the facts asserted in them, but the weight of that admission depends on the circumstances in which they were signed. As Ryan J explained in Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 at [77]:

“An agreement does not ordinarily constitute a representation by a contracting party. One reason for that is the difficulty in attributing a particular statement in the agreement to one party or the other. It is also notorious that parties to an agreement may elect to conduct their contractual relations and, if necessary, enforce the rights arising from them on a basis which is contrary to fact. That is not to say that no statement in an agreement or contractual document can ever constitute a representation in the sense used in the definition of “admission” in the Evidence Act. A recital to a deed or other written contract may, in its context, be so expressed as to warrant the conclusion that both contracting parties intended it to operate as an assertion of actual fact. In that event, the recital, in my view, would be admissible in later proceedings as an admission against either contracting party.”

See also Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143-4 per Rich, Dixon, Evatt and McTiernan JJ.

56 In my opinion, the 1990 agreement is of little assistance in establishing the contents of the 1980 agreement and what assistance it is does not support George’s case. Recital A is the only provision of the 1990 agreement that purports to record the terms of the 1980 agreement. That recital suggests that George, but not Elie, was a party to the agreement. The operative terms of the 1990 agreement purport to vary the terms of the 1980 agreement. Consequently, it is difficult to see how they could operate as admissions by Elie of the terms of the earlier agreement. Even if they could, clause 1 (providing that Mr and Mrs Minas can remain in the property for the whole of their lives) seems unnecessary if they owned half the property.

57 I do not think that the wills signed by Elie take the matter any further. They could only amount to an admission if it could be said that Elie intended, by signing them, to adopt the statements made in them as his own. It strikes me as inherently improbable that someone would sign another’s will for the purposes of adopting the statements it contained, particularly when, at the same time, that person signed an agreement dealing with the same subject matter. The likelihood is that Elie signed the wills in error at the time that he signed the 1990 agreement. He did not pay close attention to what he was signing because of his father’s insistence, the heated debate that they were having and his concern to return to work.

58 Both George and Rita say that they saw the 1980 agreement and gave evidence of its terms. However, I think that this evidence needs to be treated with caution. George did not say when he last saw the 1980 agreement, although it appears from his evidence that it was at about the time that it was signed – some 30 years ago. He says nothing about what happened to the agreement after it was signed. His evidence was unreliable on other important aspects of the case (such as how the purchase price was made up) and the likelihood now is that his memory has been clouded by an emotional investment in the case.

59 The only person apart from George who says she saw the 1980 agreement is Rita. According to her, she raised a concern with her father shortly after the purchase of the Carlingford property about whether Mr and Mrs Minas would be protected. In response, Mr Minas went and got a copy of the 1980 agreement and asked Rita to explain it to him. Rita describes the document in much the same way as George in her affidavit. However, in cross-examination she was much less certain. She insisted she saw the four names. She admitted that she did not read the second page and did not understand all of the words used on the first page. However, she described what she saw in the following terms:

“I saw the Agreement 1980 and then I saw four names and four signatures. I saw the 25% on each one of them, next to them, whatever, up, down, it was there, 25%. I can see the signatures, but after that it is blocked …”

I do not find this evidence convincing. It is possible that Rita was shown a document by her father in 1980 but having regard to the amount of time that has lapsed and the evidence that she was able to give of it, I do not think that any weight can be placed on her evidence of its terms.

60 Mr Loofs submitted that the terms of the 1980 agreement could be inferred from statements made by Mr and Mrs Minas both at the time that the agreement was entered into and later and from Mrs Minas’s later wills. In particular, he relies on evidence from Maria to the effect that her parents told her on several occasions during the 1980s that they owned the Carlingford property with Elie and George in quarter shares. In my opinion, that evidence is not admissible under s 48 of the Evidence Act. In any event, I do not think that Maria’s evidence is reliable. Again, it is implausible that she would remember conversations from over 20 years ago. She was insistent that she could remember exactly what was said in circumstances where she clearly could not do so. Moreover, it is clear from an SMS message she sent to Elie that was highly critical of Elie’s decision to seek to take possession of the Carlingford property and that she thinks poorly of Elie for doing so. That view clouded the evidence that she gave.

61 It is also important to bear in mind that some three years after the 1980 agreement was entered into George entered into a transaction with Elie (the sale of his share in the house) which is not easy to explain except on the basis that they each owned a half share of the house. The sale price was expressed to be $36,000, which was approximately half the value of the house. The amount that Elie paid George was $10,000, which was approximately half the amount of cash that had been invested in the house. Elie took over responsibility for repaying all the loans. These facts strongly suggest that the George and Elie at least thought that Elie was acquiring a half interest in the house from George.

62 Mr Loofs submitted that, once I concluded that there was a 1980 agreement, it was almost inevitable that I should conclude that the parties were Mr and Mrs Minas and Elie and George. The argument appears to be that, if I accept that there was a 1980 agreement, I must also accept that that agreement came into existence because of the concerns Mr and Mrs Minas had about their position given that their names were not on the title. Once that is accepted, it must follow that Elie as well as George was a party to the agreement because he, like George, was a registered proprietor. The natural inference is that the parties agreed that they would each have a 25 per cent interest in the property. I do not accept this submission. I accept that there was some form of agreement entered into 1980. I also accept that the likelihood is that agreement came into existence because of concerns on the part of Mr and Mrs Minas about their position. However, I do not think it necessarily follows from that that Elie was a party to the agreement or that the agreement created a trust in favour of the parents or contained a promise that they would receive half the net proceeds of sale of the house in all circumstances and for all time.

63 Taking into account all these matters, I am not satisfied that George has established that the 1980 agreement contains the terms alleged by him, let alone that he has done so to the standard required by Maks v Maks (1986) 6 NSWLR 34.

Express oral trust

64 George claims that, even if there was no express written trust created by the 1980 agreement, there was an express oral one. In doing so, he must, among other things, overcome the hurdle created by sections 23C(1) and 54A(1) of the Conveyancing Act. Section 23C relevantly provides:

“(1) Subject to the provisions of this Act with respect to the creation of interests in land by parole–

(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) …
(2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.”

Section 54A(1) relevantly provides:

“No action or proceedings may be brought upon any contract for sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person there unto lawfully authorised by the party to be charged.”

65 George seeks to escape the consequences of these provisions by relying on the principle that equity will not permit the Statute of Frauds (embodied by these sections) to become an instrument of fraud. That principle was stated by Lindley LJ in Rochefoucauld v Boustead [1897] 1 Ch 196 at 206 in the following terms:

“It is further established by a series of cases, the propriety of which cannot now be questioned, that the Statute of Frauds does not prevent the proof of a fraud on the part of the person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself. Consequently, notwithstanding the statute, it is competent for a person claiming land conveyed to another to prove by parol evidence that it was so conveyed upon trust for the claimant, and that the grantee, knowing the facts, is denying the trust and relying upon the form of conveyance and the statute, in order to keep the land himself.”

See also Last v Rosenfeld [1972] 2 NSWLR 923; Caiglia v Caiglia [2010] NSWSC 341.

66 The application of that principle depends on proof that Elie knew that he was acquiring the Carlingford property on trust for his parents. Proof of that depends on proof that Elie participated in conversations at the time to the effect that the property would be held on trust or that he subsequently made an admission to that effect.

67 There is no evidence of an admission by Elie that the property was held in trust.

68 The only evidence that Elie participated in discussions to the effect that the property would be held on trust is given by George. The evidence takes two forms. First, George relies on a number of conversations he says that he had with Elie and his parents when they first discussed buying the house to the effect that they would each own a quarter share. Second, George relies on a meeting he says was attended by Mr and Mrs Minas, Elie and himself with Mr Proctor to discuss the terms of the 1980 agreement. I have already rejected George’s evidence on these matters. In those circumstances, his claim based on an express oral trust must fail.

Constructive Trust

69 The constructive trust relied on by George stems from decisions such as Green v Green (1989) 17 NSWLR 343, Grant v Edwards [1989] Ch 638 and Maharaj v Jai Chand [1986] AC 898. A constructive trust of this type has two elements. First, there must be a common intention that the parties should have a beneficial interest in the property. Secondly, the persons claiming an interest must have acted to their detriment on the basis of that common intention. The common intention can be proved by the evidence of express agreement. Alternatively, it can be inferred from their statements and conduct at the time the property was purchased or so immediately after as to constitute the same transaction. It can also be inferred, for example, from the making of contributions to the cost of a property or meeting expenses in maintaining it. However it cannot be inferred from some subsequent statements and conduct except to the extent that they amount to admissions: Green v Green (1989) 17 NSWLR 343 at 355 per Gleeson CJ; Calverley v Green (1984) 155 CLR 242 at 261-2 per Mason and Brennan JJ. See also Shepherd v Doolan [2005] NSWSC 42 at [31]-[42] per White J. A constructive trust of the type in question is normally imposed in the context of family relationships where there is an inferred common intention and where one party has acted to his or her detriment (by, for example, making contributions to the property) but where there is a lack of certainty or consideration or non-compliance with the statutory requirements of writing: see Maharaj v Jai Chand [1986] AC 898 at 907, cited with approval by Gleeson CJ in Green v Green (1989) 17 NSWLR 343 at 354.

70 In my opinion George has failed to proof the facts necessary to establish a trust of this type. In particular, George has failed to establish that there was a common intention that his parents would each have a 25 percent interest in the property. I have rejected the suggestion that that was a matter discussed between the parties. I have also rejected the submission that Elie should be taken to have made some admission to that effect or that such an agreement can be implied from the 1990 agreement. Nor do I think that an intention of that type can be inferred from the contributions the parents made to the costs of the property. I say something more about that below. However, I do not think it can be inferred that the parties intended that Mr and Mrs Minas would have a 50 percent interest in the property from the fact that they contributed approximately $8,000 towards the costs of its acquisition particularly in circumstances where, at the time of acquisition, George and Elie were responsible for repayment of the mortgage and loan arranged by Harry as well as all the outgoings in relation to the property. Once again, evidence of statements by Mr and Mrs Minas after the property was bought and statements in Mrs Minas’s wills is not admissible to establish the existence of a constructive trust.

Resulting trust

71 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.

72 In my opinion, the evidence in this case is not sufficient to displace the presumption of advancement, although I think that the evidence does establish that that presumption was qualified. Mr and Mrs Minas contributed what money they had to enable George and Elie to buy the house. It is clear from the discussion that Mr Minas had with Elie that they did so in the expectation that they would be able to live there for as long as they wanted. However, on the findings I have made, there is nothing in the evidence to suggest that Mr and Mrs Minas did not intend to benefit George and Elie in making the contribution that they did. The fact that Mr and Mrs Minas expected that George and Elie would repay the mortgages and loan arranged by Harry and pay the outgoings on the property and would allow them to live at the property for as long as they wanted suggests the opposite. It follows that this claim also must fail.

Orders

73 Although Elie did not make a formal application for an order under s 74MA of the Real Property Act 1900 that George by required to withdraw the caveat, Mr Waugh, who appeared for Elie, indicated that he sought an order of that type. In my opinion, there is no reason why such an order should not be made. Nor is there any reason not to make the orders sought in the cross-claim. In those circumstances, I make the following orders:

1. The proceedings be dismissed with costs.

2. The order made on 21 October 2008 extending the operation of caveat number Y951369 be vacated.

3. The plaintiff forthwith withdraw caveat number Y951369.

4. Judgment for the cross-claimant for possession of the Carlingford property.

5. Leave to the cross-claimant to issue a writ of possession for the Carlingford property at any time after 31 August 2010.

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