Oliver v Renwick Street Pty Ltd; Scahill v Parker

[2024] NSWSC 346

Supreme Court

New South Wales

Medium Neutral Citation:

Oliver v Renwick Street Pty Ltd; Scahill v Parker [2024] NSWSC 346

Hearing dates:

4, 5 and 6 March 2024

Date of orders:

4 April 2024

Decision date:

04 April 2024

Jurisdiction:

Equity

Before:

Hmelnitsky J

Decision:

In proceedings 2021/00264886:

(1) Declare that the second defendant holds the Wedderburn property subject to a resulting trust in favour of the plaintiff as to 31.75% as an equitable tenant in common.

(2) Otherwise dismiss the amended summons filed 2 February 2022.

(3) Dismiss the cross-claim.

(4) The first defendant to pay the plaintiff’s costs of the proceedings.

In proceedings 2022/00052316:

(1) Proceedings dismissed with costs.

Catchwords:

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts – Where purchase price was paid using the funds obtained from a loan which was eventually paid by the legal owner

EQUITY — Trusts and trustees — Express trusts — Declaration of trust – Where there was no writing

EQUITY — Trusts and trustees — Express trusts — Declaration of trust over land – Writing requirement - Whether an affidavit sworn in the proceedings in which satisfaction of the writing requirement is in issue can constitute sufficient compliance with s 23C of the Conveyancing Act 1919 (NSW)

ESTOPPEL — Proprietary estoppel — Encouragement — Detrimental reliance – Whether sufficient evidence that circumstances amounted to detrimental reliance – Whether remedy would be proportional to detriment suffered.

EQUITY — Subrogation — Requirements – Where mortgage not yet discharged – Whether a declaration should be made that a third party has a right to be subrogated to the position of the mortgagee once discharge has occurred – Where there is no evidence that funds were intended to be repaid – Where there was no expectation of subrogation

CONTRACTS — Performance — Discharge by performance – Whether the confiscation of money paid in satisfaction of a loan agreement “revives” the repayment obligation under the loan agreement.

Legislation Cited:

Agricultural Holdings Act 1941 (NSW)

Conveyancing Act 1919 (NSW) ss 23C, 37A

Crimes Act 1914 (Cth) s 3F

Criminal Assets Recovery Act 1990 (NSW) ss 10A, 12

Evidence Act 1995 (NSW) s 136

Proceeds of Crime Act 2002 (Cth) ss 5, 19, 38, 39

Property Law Act 1969 (WA) s 34

Property Law Act 1974 (Qld) s 11

Statute of Frauds 1677 (UK)

Cases Cited:

Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393

Ambridge Investments Pty Ltd (in liquidation) v Baker [2010] VSC 59

Barkworth v Young (1856) 26 LJ Ch 153

Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44

Bosanacv Commissioner of Taxation (2022) 2754 CLR 37; [2022] HCA 34

Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26

Calverley v Green (1984) 155 CLR 242; [1984] HCA 81

Cheltenham & Gloucester Plc v Appleyard [2004] EWCA Civ 291

Ciaglia v Ciaglia [2010] NSWSC 341

Cochrane v Cochrane (1985) 3 NSWLR 403

Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84

Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53; [2006] FCAFC 157

Dudgeon v Chie (1954) 55 SR (NSW) 450

Equuscorp Pty Ltd v Jiminez [2002] SASC 225

Fletcher v Burns (1997) 12 BPR 22937

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Kelly v Commissioner of Taxation [2012] FCA 423 Kelly v Federal Commissioner of Taxation [2013] FCAFC 88

Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62; [2015] HCA 6

Lucas v Dixon (1889) 22 QBD 357

Michael Aronis & Aronis Nominees Pty Ltd (trading as Welland Tyrepower) v Hallett Brick Industries Ltd [1999] SASC 92

Moore v Aubusson [2020] NSWSC 1466

Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753

Northwestern Shipping & Towage Co Pty Ltd v Commonwealth Bank of Australia (1993) 118 ALR 453

Padovan and anor v MGG Group Pty Ltd (in liq) [2011] NSWSC 1080

Popiw v Popiw [1959] VR 197

Priestley v Priestley [2017] NSWCA 155

Re Romer & Haslam [1893] 2 QB 286

Scahill v DPP (Cth) [2019] NSWCCA 190

Secretary, Department of Social Security v James (1990) 95 ALR 615

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

South Coast Oils (Q and NSW) Pty Ltd v Look Enterprises Pty Ltd [1988] 1 Qd R 680

State Bank of New South Wales v Geeport Developments Pty Ltd (1991) 5 BPR 11

The Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33

Texts Cited:

Goode on Payment Obligations in Commercial and Financial Transactions (3rd Ed, 2016, Sweet & Maxwell)

Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)

Tyree, Banking Law in Australia (10th Ed, 2021, LexisNexis)

Category:

Principal judgment

Parties:

2021/00264886:
Siobhan Oliver (Plaintiff, Second Cross-defendant)
Renwick Street Pty Ltd (First Defendant, Cross-claimant)
Anthony Parker (Second Defendant, First Cross-defendant)

2022/00052316:
Philip John Scahill (Plaintiff)
Anthony Parker (First Defendant)
Siobhan Oliver (Second Defendant)

Representation:

Counsel:
2021/00264886:
H Stowe (Plaintff, Second Defendant, First and Second Cross-defendants)
J Mee (First Defendant, Cross-claimant)

2022/00052316:
J Mee (Plaintiff)
H Stowe (First and Second Defendants)

Solicitors:
2021/00264886:
Just Defence Lawyers (Plaintff, Second Defendant, First and Second Cross-defendants)
Keith Bagley (First Defendant, Cross-claimant)

2022/00052316:
Keith Bagley (Plaintiff)
Just Defence Lawyers (First and Second Defendants)

File Number(s):

2021/00264886; 2022/00052316

Publication restriction:

Nil

JUDGMENT

1. This dispute principally concerns the ownership of residential property at Wedderburn in southwestern Sydney. The registered proprietor of the property is Mr Anthony Parker. There is also a dispute in relation to a loan taken out to acquire the property.

The parties and their claims

2. The parties to the proceedings and their various claims to an interest in the property are as follows.

3. Ms Siobhan Oliver was formerly Mr Parker’s de facto partner. She claims to be entitled to one half of the property pursuant to the terms of an express trust declared by Mr Parker at the time of purchase. Alternatively, she claims that Mr Parker is estopped from denying that he holds one half of the property for her by reason of her reliance on clear statements to that effect made at the time of purchase. Her reliance was constituted, she says, by her contribution of almost half the purchase price. In the further alternative, she claims that Mr Parker holds the property subject to a purchase price resulting trust having regard to her contribution to the purchase price. Lastly, she seeks to be subrogated to the position of the first mortgagee of the property in relation to payments made by her in partial discharge of that mortgage.

4. Ms Oliver and Mr Parker are represented by the same solicitors and counsel in these proceedings. Mr Parker and Ms Oliver separated very shortly before the commencement of the hearing, but he does not resist any aspect of the relief sought by Ms Oliver.

5. Renwick Street Pty Ltd (Renwick Street) is a company associated with Mr Philip Scahill. Renwick Street obtained a judgment against Mr Parker in the District Court in relation to some moneys said to be owing under an agreement relating to the construction of a house on the Wedderburn property. Renwick Street contends that Ms Oliver’s claim to have an equitable interest in the Wedderburn property and Mr Parker’s acquiescence in that claim are recent inventions designed to stymy Renwick Street’s ability to execute a writ against the property in satisfaction of its District Court judgment.

6. Mr Scahill separately seeks judgment against Mr Parker or alternatively Ms Oliver in the sum of $200,000 plus interest. Mr Scahill lent the sum of $200,000 to either Mr Parker or Ms Scahill in order to allow the Wedderburn property to be purchased. Mr Parker subsequently gave Mr Scahill a bag containing $200,000 in cash in repayment of that loan. About a year later, the Australian Federal Police (AFP) seized cash in that amount from Mr Scahill. Mr Scahill contends that the loan therefore again became due and payable (regardless of whether the loan was to Mr Parker or Ms Oliver) and seeks judgment. It is also relevant to note his primary contention that the loan was made to Mr Parker, not Ms Oliver. If he is right about that primary contention, then a large part of the cash which Ms Oliver claims to have contributed to the purchase price was not her cash at all – it was cash lent to Mr Parker.

7. There are two proceedings before the Court which I shall refer to as the 2021 proceedings and the 2022 proceedings.

8. Ms Oliver is the plaintiff in the 2021 proceedings. Renwick Street is the first defendant and Mr Parker is the second defendant. The substantive relief sought in those proceedings by Ms Oliver is as follows:

1. A declaration that Mr Parker holds the Wedderburn property on express trust for himself and Ms Oliver, as tenants in common in equal shares.

2. In the alternative, declarations that:

1. Mr Parker holds the Wedderburn property on resulting trust on behalf of Ms Oliver, as to the proportion of the Property corresponding to the Ms Oliver’s contribution to the purchase price.

2. Mr Parker holds the Wedderburn property on constructive trust on behalf of Ms Oliver, as to 50% of the property.

3. Ms Oliver is entitled to be subrogated to the rights of Members Equity Bank Ltd (Members Equity) under its registered Mortgage over the Wedderburn property, in respect of payments made by her in discharge of that mortgage.

3. An order that Mr Parker forthwith transfer 50% of the Wedderburn property to Ms Oliver.

9. Renwick Street has brought a cross-claim in the 2021 proceedings by which it seeks the following relief:

1. In the event that the Court finds that Mr Parker holds the Wedderburn property or any part of it on trust for Ms Oliver, a declaration that such alienation is void under section 37A of the Conveyancing Act 1919 (NSW) (the Conveyancing Act).

2. An order that the caveat of Ms Oliver be removed from the title to the Wedderburn property.

10. Mr Scahill is the plaintiff in the 2022 proceedings. He seeks the following relief.

1. Judgment against Mr Parker for the amount of $200,000.

2. In the alternative, judgment against Ms Oliver for the amount of $200,000.

3. Interest.

4. Costs.

11. On 20 May 2022, Darke J ordered that evidence in one proceeding be evidence in the other.

Facts

12. Mr Parker was a technician who worked on baggage carousels and conveyer belts at Sydney International Airport. In July 2014, Mr Parker was arrested and charged with serious offences relating to the importation of commercial quantities of illicit drugs into Australia via the airport. Mr Parker was convicted and is currently serving a very lengthy full time custodial sentence. The charges of which he was convicted were gravely serious drug importation offences and offences relating to dealing with the proceeds of crime.

13. The Wedderburn property was acquired in early 2013 in circumstances I describe in more detail below. At that time, Mr Parker and Ms Oliver were in a de facto relationship.

14. At the time he commenced the relationship with Ms Oliver, Mr Parker was separated from his wife but they were not yet divorced. During 2012 and early 2013, there were quite bitter divorce and child support proceedings between the two of them. They were in dispute about Mr Parker’s child support obligations and about the extent of his financial disclosure.

15. Ms Oliver had previously been in a relationship with a man who had drug and alcohol problems as well as a gambling problem. The two of them had a joint bank account with an associated credit card. He ran up very substantial debts on the credit card which neither he nor Ms Oliver was able to service. As a result of this, Ms Oliver had an adverse credit rating in 2012 and 2013.

16. In early 2013, Mr Parker and Ms Oliver (whom I will for convenience but a little inaccurately describe as the plaintiffs; I recognise that Mr Parker does not seek any relief in either proceedings) were living in a property at Bradbury owned by Mr Parker. That property was registered in Mr Parker’s name but Ms Oliver considered it to be her home.

17. In 2012 and 2013, Ms Oliver was working at two recruiting firms, APS Group and Rush Recruitment, which shared premises with the accounting firm of Mr Scahill. Mr Scahill spent as much time in the offices occupied by Ms Oliver as he did in his own office. Ms Oliver introduced Mr Parker to Mr Scahill very late in 2012. Following this introduction, Mr Scahill assisted Mr Parker with his financial affairs from time to time. There was evidence that they had commercial dealings but the evidence was not very clear.

The purchase of the Wedderburn property

18. Much of what the plaintiffs said about how they came to acquire the Wedderburn property was disputed. Mr Scahill and Renwick Street (whom I will for convenience but, again, a little inaccurately call the defendants) contend that the plaintiffs’ evidence about this matter was, essentially, recent invention.

19. At least some aspects of the purchase were not in dispute. A contract to purchase the land was entered into by Mr Parker in early 2013. Settlement occurred on 22 March 2013. Mr Parker became the registered owner. The total purchase price was $630,000.

20. Mr Parker obtained finance from Members Equity who took a mortgage over the property. The amount borrowed from Members Equity was $317,000. Mr Parker was the only mortgagor. The balance of the funds required at settlement were paid by bank cheques obtained by Ms Oliver using cash withdrawn from her ANZ cheque account.

21. However, how that cash found its way into her account and most of the rest of what occurred in early 2013 is disputed by the defendants. Because the defendants’ case relies at least to some extent on the way the plaintiffs’ accounts are said to have changed over time, it is appropriate that I set some of their evidence out in full.

The initial accounts of how the property was purchased

22. In his affidavits sworn on 20 September 2021, Mr Parker said:

“[2]Prior to the purchase, I had a discussion with my partner, Siobhan Oliver, to the following effect:

Me:   “Let’s buy some land. I will find it. If you are happy with it, we will buy as partners. You get 50%. I get 50%.”

S:   “Yes. Fine. Let’s do it.”

[3]It is my recollection that we were originally going to make the purchase, and apply for loans, in both our names. However, my recollection is that when we inquired about getting a loan in both our names, Siobhan’s application was declined, because she had problems with her credit rating, because her ex-partner had run up a significant credit card debt on a joint credit card. My recollection is that we were told by the bank that they would only lend if the loan and purchase were in my name. At around that time, I had a conversation with Siobhan to the following effect:

Me:    “We will both still be partners on the property. But why don’t I put it just in my name for now. When your credit rating issues are sorted out, we can put it back in both our names.”

S:    “That’s fine.”

[4]   I ended up taking the loan in my name alone. The lenders required a contribution of around $300,000 to the purchase, over and above the amount they were lending. I had discussions with Siobhan about Siobhan taking out a loan to make her contribution to the purchase of the property.

[5]Shorting after the property settled, we had a conversation to this effect:

Me:   “It’s in my name. But don’t worry, the property is ours. It is not just mine. We are partners in this. We will sort out the names on the property later.”

S:   “Okay.””

23. In her affidavit sworn 20 September 2021, Ms Oliver referred to the contract for the purchase of the property and said:

“[6] Around six months before Anthony entered into that contract, I had a conversation with him to the following effect:

Him:   “I want us to purchase some land for us to build our home. We need to talk about whose name we should put it in”

Me:   “I have problems with my credit rating, and that might cause some difficulties if it goes in my name as well. I think you should put it in your name now. Once I sort out my stuff, we can put in both our names.”

Him:   “Yes – that’s fine. It will be our house, but I will put it my name to start with.”

Me:    “Great – we can sort the paperwork later to put my name on the title as well.”

[7]To the best of my recollection there were other conversations about the fact that the property was to be purchased in Anthony’s name, but we would both be the owners. I can’t now recall the details of those conversations, but I recall that they were generally consistent with the effect of the conversation which I describe in paragraph 1 above.

[8] Sometime later, Anthony found the Property, and we had a conversation to the following effect:

Him:    “I have found the perfect land. It is flat. It has no trees. It has a dam. This is the one.”

Me:    “Great. Let’s go have a look.”

[9]We inspected the property together, and we both thought it was great. I said: “Go for it. Make an offer.”

[10]Anthony entered into negotiations with the real estate agent. I recall I had discussions with Anthony from time to time about the price he was offering for the land. I can’t now recall the prices, but recall conveying to him that I was happy for him to make offers on the basis of the prices we discussed.

[11]He ultimately signed the contract with the vendor.”

[Errors in original]

24. Ms Oliver also gave evidence as to the source of funds which she claimed to have contributed to the purchase of the property. She said:

“[12]Prior to the signing of the contracts, we had a discussion about funding the deposit, to the following effect:

Him:    I want to pay a big deposit. Are you able to give me some money towards it.

[I am pretty sure that he mentioned a figure, but I no longer remember what that figure was. However, I assume it was $300,000, because I remember that was the amount I ultimately contributed to the deposit.]

Me:    I feel a bit uncomfortable asking Phil [Scahill], but I am sure I would be able to get a loan from him if I asked.

Him:    Leave it with me, and I will sort it out.”

25. One of the things that was readily apparent during the course of her evidence was that Ms Oliver was not at all fluent with financial concepts, such as the difference between a deposit and the funds paid at settlement.

26. Ms Oliver then said, according to her affidavit:

“I feel a bit uncomfortable asking [Mr Scahill], but I am sure I would be able to get a loan from him if I asked.”

27. According to Ms Scahill, Mr Parker then said:

“Leave it with me, and I will sort it out.”

28. Ms Oliver’s evidence about what happened next was as follows:

“[13]I recall having some dealings with Scahill about the loan. I specifically recall one particular conversation with Scahill, where he said that “I am happy to give you a loan for $200,000, and I will deposit that directly into your account.” Apart from that conversation, I can’t now recall the details, or the substance of the other discussions with Scahill about the loan. I have no recollection one way about whether I had discussions about the term of the loan, security for the loan, or documentation for the loan. I specifically recall that there was no documentation in relation to the loan.

[14]I have no recollection one way or the other about whether I had any discussions with Anthony about the terms of the loan from Scahill.

[15]Shortly after, I recall checking my bank account a couple of weeks after these dealings, and seeing Scahill had deposited the $200,000 there.”

29. Her evidence was that she contributed this $200,000 to the purchase of the property, together with an additional $100,000. As to that $100,000, her evidence was that $30,000 was savings from her salary, which at the time was around $75,000 per year, and the balance of $70,000 was deposited by Mr Parker into her account.

29. In relation to the $70,000 deposited by Mr Parker, her evidence was that she had a vague recollection of him saying:

“I have a bit of spare cash. I will deposit that into your account to help you pay your share of the deposit. If I deposit the money into your account, it will have the added bonus of ensuring [my ex-wife] can’t get her dirty paws on it.”

31. After describing how Mr Parker arranged finance from Members Equity, and some other detail, Ms Oliver then said:

“[27]Following on from the purchase of the property, Anthony and I also had many conversations to the following effect:

A:   The property is in my name, but it belongs to both of us ok.

S:    Yes, I know that.

[28]There were also times following on from the purchase of the property, where Anthony would say, “Yes just my name is on title, but you also own the property.”

32. At the time the proceedings were commenced and the abovementioned affidavits were sworn, both of the plaintiffs were in custody. Mr Parker was serving the sentence I have already referred to. Ms Oliver had in the meantime been convicted of charges relating to dealing with the proceeds of crime.

The February 2022 affidavits about the purchase of the property

33. By the time she came to swear her affidavit of 15 February 2022, Ms Oliver was no longer in detention and was living again at the Bradbury property. She had discovered some additional correspondence, including a letter dated 31 January 2013 from Elders Real Estate, who acted as agents on the purchase, together with a “Sales Detail Sheet” attached to that letter. The 31 January letter was addressed to Mr Parker and Ms Oliver and congratulated the two of them on their purchase. The Sales Detail Sheet described the purchasers as the two of them.

34. These documents prompted Ms Oliver to recall that before the conversation to which she had deposed in paragraph 6 of her earlier affidavit, she had also had the following discussion with Mr Parker:

“Parker:   We will buy the property together. We will put it in both our names.

Oliver:      Yes. Let’s do that.”

35. This affidavit also contained additional detail concerning her earlier reference to problems with her credit rating. In this affidavit, she explained the misgivings which those problems had given rise to. She said:

“It was after the dealings described in paragraphs (iii) and (iv) above, that I developed misgivings about placing my name on the title, in light of my credit rating. Those misgivings arose when an ME Bank representative came to our house to discuss the loan for the purchase of the Property, originally on the understanding that it would be a joint loan by me and Anthony for our joint purchase of the Property. In the course of that discussion, he described the loan application process, and stated that the process involves an assessment of credit ratings. I informed him that I had problems with my credit rating, in response to which he said something like “That might cause problems. It might be easier if the loan was made exclusively in the name of Anthony.” I have a firm recollection that after the ME representative said that, I had a conversation with Anthony to the effect of the underlined portion of the conversation set out in paragraph 3 above. However, I don’t presently have a precise recollection of when that conversation took place, and whether it was during or after the meeting with the ME representative or shortly after. My best recollection is that it was shortly after. I refer to the statement in the conversation I describe in paragraph 3 above: “I want us to purchase some land for us to build our home. We need to talk about whose name we should put it in.” I firmly recall a statement to that effect, but it might have been made by Anthony in a prior conversation.”

The 2024 evidence about the purchase of the property

36. Shortly prior to the hearing, Ms Oliver came into possession of further documents from around the time of purchase. These documents were obtained from the possession of the Australian Federal Police They included the following:

1. A copy of an executed first page of a contract for sale of the Wedderburn property dated 31 January 2013, with both Mr Parker and Ms Oliver as purchasers and executed by the both of them.

2. A copy of an internal business record created by a representative or agent of Members Equity in February 2013, evidently at or shortly after the meeting otherwise described in the plaintiffs’ evidence. It records under “Customer Objective and Loan Purpose”:

“Existing cust (Anthony) would like to purchase block of land & to borrow funds to complete purchase. He would like to take out Member package due to lower rate and offset acc. He’s going to purchase the land with his new domestic partner (Siobhan) but due to adverse CRAA on Siobhan, MBM has discussed this with Ian Perry & to proceed as per his suggestion Ie loan to be only in Anthony’s name – amended COS to show his name is only required. Purchase price $530k. Loan amt $300k MP Ultimate 30ys var.”

[Errors in original]

37. These documents prompted some additional recollections on the part of Ms Oliver, namely:

“(b) This reinforces my recollection that concerns about my credit rating caused a rethink of the structure of the purchase. This document corroborates my recollection (described in paragraph 4(v) of my Second Affidavit) of discussions with ME Bank representative about my credit rating issues;

(c) I understand that the reference to “COS” is a reference to a Contract of Sale. This refreshes a recollection that Anthony signed a second Contract of Sale, in which he was the only named purchaser. I have been unable to locate a copy of that contract.

(d) I noted in paragraph 4(v) of my Second Affidavit that I had no precise recollection of the exact sequence of events in relation to the decision to change the strategy from purchasing the property in both our names, to purchasing the Property in the name of Anthony only. Reviewing the document at page 3 of the Bundle does not refresh my recollection further as to that sequence of events. My best recollection is that:

(i) Anthony I had originally signed the contract of sale for tor the Property as co-purchasers;

(ii) At some point, I became concerned that problems with my credit rating might frustrate getting loan approval, and I raised this concern with Anthony;

(iii) Anthony’s first response was “Let’s just give it a go in both our names”;

(iv) There was discussion with ME, in which ME confirmed that there would be problems with the loan application if I was a co-borrower and co-purchaser; and they advised that Anthony be the only person on the contract and the loan application;

(v) It was ultimately agreed between me and Anthony, that Anthony be identified as the sole purchaser of the Property on the sale and loan contracts;

(vi) Notwithstanding that agreement, it remained my clear understanding that I remained an equal owner, based on the conversations I refer to in paragraph 3 of my Second Affidavit, and paragraphs 27 and 28 of my First Affidavit.”

Mr Scahill’s evidence about the loan from Renwick Street

38. Mr Scahill gave a different account of how the $200,000 loan was made. I note at the outset that all parties accepted that Mr Scahill caused $200,000 to be deposited into Ms Oliver’s account in early 2013. It is also not in dispute that these were funds which Mr Scahill loaned to someone. The only question was: to whom?

39. In an affidavit sworn on 25 January 2022 while Mr Scahill was also serving a term of imprisonment for offences relating to receiving the proceeds of crime, he deposed as follows:

“[3] On or about mid-January 2013, Parker approached me in my office when the following conversation took place:

Parker:    ‘I have found a property to buy. I am going through a divorce and waiting for a property settlement. I need a loan of $200,000.00 to be able to buy the property. Can you lend me $200,000.00 short term? I will be able to repay you from the divorce settlement or my compensation settlement when on or other comes through?’

Scahill:   ‘Yes, I can lend you $200,000.00 on the proviso that a caveat be lodged as security.’

[4] The loan agreement was between me as lender and Parker as borrower. The agreement was not committed to writing.

…

[6] The loan was not expressed to be for a term with a fixed date for repayment. I relied on Parker’s representation that he would be able to repay the loan from Parker’s divorce settlement or compensation settlement. I considered that I could call for repayment at any time if the loan was not repaid within a short period of time.

…

[8] Approximately one week later, Parker telephoned me saying: “pay the loan into Siobhan’s bank account.” Parker gave me the account details.

[9] To make the loan funds available, I reconciled funds of various entities which I entered, held in the Trust Account of Scahill & Co Pty Ltd. All of which I was the legal and beneficial owner.

[10] On 31 January 2013, I transferred the sum of $200,000.00 into the plaintiff’s bank account.”

40. I allowed the evidence in paragraph 4 on the limited basis that it could only be used as evidence of Mr Scahill’s understanding of the agreement: s 136 Evidence Act 1995 (NSW).

41. Mr Scahill expressly rejected Ms Oliver’s evidence that she had had some discussion with him about the loan. All of this was, in turn, emphatically refuted by Mr Parker.

42. Mr Scahill did not keep any formal record of the loan. Nor was there any contemporaneous correspondence or note in relation to it. There was however some additional evidence that bears on the question of whether the loan was to Mr Parker or Ms Oliver.

43. The plaintiff tendered a document containing a handwritten note apparently referring to the loan. Mr Scahill accepted that this document was in his handwriting and that it had been prepared by him at the time of making the loan. It was headed “Siobhan Oliver - $200k transfer”. It contained Ms Oliver’s name and bank account details. It then said:

“’Loan’      $200,000”

44. It also contained a number of entries about payments from and to the Scahill & Co trust account. Mr Scahill said that these entries reflected that the $200,000 was paid out of his trust account from funds paid in by other clients but that no client was left short as a result of the transfers.

45. Mr Scahill was also shown extracts from a record of interview with the Australian Federal Police on 8 September 2014. He accepted that he had given that interview and that he had reviewed the transcript of it at the time. The record of interview contained the following:

“Q290.    Okay. So – and so she first approached you about building a house about the time you gave them the two hundred thousand dollars…(indistinct)…

A    She first approached me – she first approached me about lending them some money- - -

…

Q293.    Okay. And why would Siobhan approach you for a loan as opposed to going to a bank?

A   Oh it probably – sorry, it wasn’t just Siobhan, it would’ve been Siobhan and Anthony. So they come in and seen me.

…

Q367.    So January, two thousand and thirteen they both came to see you because that was when they wanted to borrow the two hundred thousand dollars?

A   Yeah.

…

Q667.   M’hm.

A   But at the end of the day the money that was lent to Siobhan OLIVER was my income that was in the trust account.”

46. I comment on Mr Scahill’s evidence in relation to the record of interview later in these reasons.

47. The court also received evidence of a letter dated 28 August 2013 written by a solicitor on behalf of the Registrar General, Land & Property Information. The letter was addressed to Mr Scahill and referred to “dealings that you [ie, Mr Scahill] lodged…requesting the Registrar General to, in relation to [the Wedderburn property], record a claim by the caveator, Phil John Scahill…and a claim by the caveator, Siobhan Oliver….”.

48. It also separately noted that Mr Parker “lodged both of the caveats” and that he had attended at the offices (presumably at Queens Square, Sydney) and presented his driver’s licence with the dealings.

49. The letter said:

“In caveat AH960674, Annexure “A” to Marginal Note (I) states that the caveator, Phil John Scahill, loaned the sum of $200,000.00 to Siobhan Oliver to purchase the land, and the land was purchased by Anthony Robert Parker on behalf of his partner, Siobhan Oliver.”

50. Mr Parker was emphatic that he most certainly did not know about these caveats and that he had not lodged them and had not presented his driver’s licence to anyone at any time in connection with this matter.

51. At the same time, Mr Scahill strongly refuted that he had any knowledge of the caveats or the correspondence, from him, to which the letter referred.

52. In the circumstances, I am wary of placing much reliance on this evidence. I do not have the dealings or correspondence to which it refers. I also do not know when those dealings were purportedly lodged or what else they say.

Payment for the property

53. Account statements for Ms Oliver, together with her affidavit evidence, demonstrate that she withdrew funds from her account and contributed them towards the purchase of the Wedderburn property. This occurred in two stages. First, she withdrew $61,435 on 27 February 2013 which I infer was used for the deposit of $63,000. Next, she withdrew $291,959.36 on 22 March 2013 in circumstances I describe in slightly more detail below, for the balance of the purchase price and other settlement costs.

54. The balance of the purchase price was paid by Mr Parker using the proceeds of the loan from Members Equity, who took a mortgage as security.

55. In the time between the purchase of the property and Mr Parker’s arrest, he made the mortgage payments on both the Wedderburn property and the Bradbury property, where they were living. Ms Oliver paid day to day living expenses such as groceries. They each saw themselves as being in a domestic partnership in which they more or less equally shared their overall costs.

56. Once Mr Parker was arrested in the middle of 2014, Ms Oliver began to pay the mortgage payments. An account reconciliation showed that her total contribution towards the mortgage on the Wedderburn property was $87,470.21. The evidence showed that she received some money from Mr Parker’s family and from some other sources which she was able to use to service the mortgages. These amounts were approximately as follows:

1. $40,000 given to her by Mr Parker’s step-father.

2. $30,000 which she received as the proceeds of an insurance claim relating to a car accident.

3. $16,000 which seems to have been from her own savings.

Repayment of the loan

57. In April or May of 2013 Mr Parker made an unannounced visit to Mr Scahill at his office and produced cash totalling $200,000. Mr Scahill accepted that this was, in his words, “in repayment of the loan”. Mr Parker and Mr Scahill counted the money out, then Mr Scahill lodged it in a safety deposit box at his bank.

58. Mr Parker’s evidence about the repayment was very similar to Mr Scahill’s account, save that he said that the cash was to repay Ms Oliver’s loan and that he said so at the time. He also said that he paid $220,000 in cash, not $200,000.

59. On 25 July 2014, the cash was confiscated from Mr Scahill’s possession. Mr Scahill’s evidence was that he believed the cash was confiscated as proceeds of a crime committed by Mr Parker.

60. It is Mr Scahill’s case that the amount of the loan became due and payable (again) when the cash used to repay it in 2013 was seized from his possession by the AFP in 2014.

District Court proceedings

61. While Mr Parker was in prison, Renwick Street commenced proceedings against him in the District Court by way of statement of liquidated claim. Those proceedings resulted in a default judgment in the sum of $517,729.99 inclusive of costs. The basis of that claim was very like the basis of the claim now brought by Mr Scahill in the 2022 proceedings. It seems that cash totalling $473,350.75 that had been used by Mr Parker to pay Mr Scahill for other services was seized from Mr Scahill’s trust account in 2014. Renwick Street obtained default judgment but without first pleading or otherwise mentioning to the District Court that payment had actually been received in 2013 and that the claim was brought in circumstances where that cash was subsequently seized.

62. There was an application to have that default judgment set aside, which was unsuccessful.

Further procedural history.

63. Default judgment was entered in favour of Mr Scahill against Mr Parker by the District Court on 9 November 2017. On 28 November 2017 Mr Scahill filed a writ for the levy of property as judgment creditor against the Wedderburn property (the First Writ).

64. Mr Scahill then went about trying to enforce the First Writ through the District Court. Administrative errors resulted in the First Writ expiring on 28 November 2019 without any enforcement having taken place.

65. On 29 November 2019 Mr Scahill filed another writ against the Wedderburn Property and had the operation of that writ extended to 29 November 2021 by order of the District Court dated 4 November 2020.

66. On 30 August 2021, Mr Scahill served a lapsing notice on Ms Oliver in relation to a caveat which she had placed on the Wedderburn property. In response to that lapsing notice Ms Oliver commenced the 2021 proceedings by way of summons filed 16 September 2021 to extend the operation of her caveat and to seek the final relief that is the concern of this judgment. An amended summons was filed on 2 February 2022.

67. The 2022 proceedings were commenced separately by Mr Scahill by way of statement of claim filed 22 February 2022.

Issues for determination

68. There are two sets of slightly overlapping issues for determination.

69. In the 2021 proceedings, it is necessary to determine the following:

1. Did Mr Parker hold the Wedderburn property on the terms of an express trust for Ms Oliver? In determining this issue, it is necessary to decide whether the evidence which each of Mr Parker and Ms Oliver has given is reliable or, as the defendants say, whether it must be rejected as recent invention. It is also necessary to determine whether any declaration of express trust was effective having regard to the terms of section 23C of the Conveyancing Act.

2. Alternatively, is Mr Parker estopped from denying the existence of Ms Oliver’s interest in the property?

3. In the further alternative, is the Wedderburn property held subject to a purchase price resulting trust reflecting Ms Oliver’s financial contribution to the purchase price? For reasons given below, it is appropriate to determine this issue prior to the previously mentioned issue concerning estoppel.

4. Is Ms Oliver entitled to be subrogated to the position of Members Equity to the extent she made payments to discharge the mortgage?

5. Does section 37A of the Conveyancing Act apply to defeat any dealing in the Wedderburn property?

70. In the 2022 proceedings, two main issues arise:

1. To whom did Mr Scahill lend $200,000?

2. Is Mr Scahill entitled to judgment from either Mr Parker or Ms Oliver notwithstanding the receipt of cash from Mr Parker referred to in paragraph [57] above?

Express Trust

71. The express trust over the Wedderburn property for which Ms Oliver contends was not evidenced by any contemporaneous written document. Instead, Ms Oliver relies on an “implied” declaration of trust by Mr Parker. I will deal with the writing requirement in due course.

72. Ms Oliver invited me to determine the question of whether there was a declaration of trust by determining whether such a declaration could be implied. She particularly relied on what was said by French CJ in Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62; [2015] HCA 6 at [3] where his Honour said:

“The question whether an express trust exists must always be answered by reference to intention. An express trust cannot be created unless the person or persons creating it intended to do so. Absent, as in this case, an explicit declaration of such an intention, the court must determine whether intention is to be imputed. It does so by reference to the language of the documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties.”

73. I do not however understand French CJ to have been saying that a declaration of trust may be found provided only that the Court is satisfied that the purported settlor had an intention to create a trust. That, after all, was not quite the issue in dispute in that case. The question there was whether the requisite intention could be discerned from the commercial contract between the parties. In this regard, his Honour referred with approval to the decision of Heydon and Crennan JJ in Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 at [103]. Of particular relevance for the present case is what was said by their Honours at [105]:

“The authorities establish that in relation to trusts, as in relation to contracts, the search for “intention” is only a search for the intention as revealed in the words the parties used, amplified by facts known to both parties. Thus in 1881 Sir George Jessel MR said163:

‘The settlement is one which I cannot help thinking was never intended by the framer of it to have the effect I am going to attribute to it; but, of course, as I very often say, one must consider the meaning of the words used, not what one may guess to be the intention of the parties.’”

74. See also Heydon and Leeming, Jacobs’ Law of Trusts in Australia (8^th ed, 2016, LexisNexis Butterworths) (Jacobs’ Law of Trusts) at [5-02].

75. The question of whether Mr Parker declared an express trust therefore cannot be resolved in favour of Ms Oliver by finding merely that Mr Parker intended to create one. Although there is no requirement as to the particular form of words or writing to be used, there is nonetheless a requirement that the intention somehow be expressed. I will therefore first address the question of what was actually said at the time.

What did Mr Parker say at the time?

76. I have already set out the evidence on which Ms Oliver relies on this issue. It consists of the accounts given by her and by Mr Parker. The real issue here is whether I accept the evidence on which Ms Oliver relies.

77. The reliability of that evidence was challenged by Renwick Street, largely on the basis that it was a recent invention designed to defeat its attempts to obtain satisfaction of its District Court judgment. To some extent, that argument depended on the fact that the plaintiffs’ respective accounts of what was said and done in early 2013 had become more complete and somewhat more definitive during the course of the litigation. To some extent, the argument also depended on the proposition that the claim was one that was only ever made belatedly, after Renwick Street had first attempted to execute a writ against the property. The defendants also submitted that the evidence of both Mr Parker and Ms Oliver should be rejected as being generally unreliable.

78. As to the notion that the plaintiffs’ accounts had changed in some meaningful way during the course of the litigation, it is relevant to note that each of them was in custody at the time of swearing their first affidavits. Nonetheless, each made their position quite clear in those affidavits in ways that have not really changed in the meantime. The events in question occurred in early 2013. The first affidavits were not sworn until late 2021. In fairness to both Mr Parker and Ms Oliver, neither purported to have a terribly extensive or detailed recollection of any conversation from 2013. Each candidly explained where their recollection was vague or uncertain.

79. The further documents that have become available over time have corroborated rather than contradicted the plaintiffs’ initial recollections. For example, Ms Oliver’s very general early (September 2021) recollection as to whether the property would be purchased in their joint names and as to why it was eventually purchased in Mr Parker’s name alone has been confirmed, in stages, by material produced over time. By February 2022 she had obtained access to the correspondence from the real estate agent to which I referred above. This letter is some limited evidence that there may well have been some discussion at the time about the two of them purchasing the property together. The real estate agent, at least, considered them to have purchased the property together. That evidence is of course not relevant to the ultimate question of whether an express trust was created, but it does tend to bolster my perception of Ms Oliver’s reliability as a witness.

80. In her affidavit of February 2022, Ms Oliver said that the real estate agent’s letter had assisted her recollection of what was said at the time, namely that they initially told the real estate agent that they wished to purchase the property together. Although this was a “new” recollection as at February 2022, it is one that has now been strongly corroborated by the documents produced by the AFP shortly prior to the hearing in early 2024. Those documents revealed that both Mr Parker and Ms Oliver had, in fact, initially signed a contract to purchase the Wedderburn property jointly. This is a fact which both Mr Parker and Ms Oliver had forgotten and therefore cannot have had in mind when they recorded their recollections in their earlier affidavits. Yet it is a fact which strongly corroborates their recollections. This further bolsters my perception of the reliability of Ms Oliver’s and Mr Parker’s affidavit evidence. Ms Oliver’s February 2022 affidavit evidence about this matter may have been “recent”, but it was hardly “invention”.

81. Ms Oliver’s February 2022 affidavit evidence about the attempts to take out a joint mortgage is in the same category. In her September 2021 affidavit, Ms Oliver said that she didn’t recall the discussions about who was going to be the borrower but that she always assumed it would be Mr Parker “because of the credit difficulties” to which she had referred.

82. In her February 2022 affidavit, Ms Oliver said that she was prompted by the additional documents to recall in more detail their attempts to obtain a joint mortgage. I have set this evidence out above. This evidence was also said to be recent invention. It is true that it was “new” in that she had not been able to recall it earlier. But this evidence has also been strongly corroborated by documents produced shortly prior to the hearing by the AFP. As noted at paragraph [36] above, those documents included a business record created by a representative or agent of Members Equity on 21 February 2013 which corroborates both Ms Oliver’s and Mr Parker’s evidence about the basis on which they were purchasing the land and the reason why they did not purchase it in both names. The document records that “[Mr Parker is] going to purchase the land with his new domestic partner (Siobhan) but due to adverse CRAA [ie, credit assessment] on Siobhan” the loan would be in his name only.

83. This document provides good independent support for important aspects of Ms Oliver’s and Mr Parker’s evidence that are said to have been “invented” or otherwise unreliable. These circumstances give me additional confidence that the affidavit accounts which both Mr Parker and Ms Oliver have given about how the Wedderburn property came to be purchased are generally reliable. They are not recent inventions.

84. Next, it was argued that the timing of the plaintiffs’ claim about the existence of a trust was suspicious in that it was not mentioned until the defendants started to press their own claims against the Wedderburn property.

85. I do not find it very surprising that Mr Parker and Ms Oliver did not take any steps to prove their position in relation to this matter until 2021. The evidence shows that on 16 November 2018 the NSW Crime Commission obtained an order pursuant to s 10A of the Criminal Assets Recovery Act 1990 preventing Mr Parker from disposing of or otherwise dealing with both the Wedderburn property and the Bradbury property.

86. The NSW Crime Commission lodged a caveat to protect the statutory charge which the s 10A order created. Both Ms Oliver and Mr Parker stated that they were aggrieved by the lodgement of the caveat. But the caveat would not have been a reason for them to seek to have their respective interests in the property determined in Court. Both he and Ms Oliver were required to be examined in relation to their interests in the Wedderburn property (and other property) pursuant to an order made under s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 (NSW). The evidence does not show whether that occurred and, if it did, what they said.

87. The first time it seems that the existence of Ms Oliver’s claimed interest seems really to have required resolution by the Court was when the defendants started to press their own claims in relation to the Wedderburn property.

88. I note that the plaintiffs did not otherwise seek to memorialise their position at the time of purchase, but I do not find that fact alone to be a sufficient basis to reject their otherwise quite reliable accounts of those events.

89. In all of these circumstances, I am not prepared to reject the evidence of Ms Oliver or Mr Parker as being unreliable. Rather, I find that their evidence about the circumstances at the time of purchase is generally reliable. I find that Mr Parker did say the words which he claims to have said in his 20 September 2021 affidavit. I also find that he said the words attributed to him by Ms Oliver in her 20 September 2021 affidavit.

Did Mr Parker intend to create a trust?

90. The question of whether Mr Parker intended to create a trust in relation to the Wedderburn property must be resolved by construing the words he used at the time, in the context in which those words were spoken.

91. Before considering the words used, I draw the following conclusions about the immediate context.

92. At some point in late 2012 or early 2013, the plaintiffs decided that they would purchase the Wedderburn property. They intended that they would purchase the property together, by which I mean they would both enter into the contract to purchase the property and would both become registered proprietors. Their purpose, which did not change in the course of January and February 2013, was that they would build a home together at the Wedderburn property.

93. On 31 January 2013, they entered into a contract to purchase the property. It would not have been possible for the plaintiffs to complete that contract without obtaining finance. The need to obtain finance was apparent to both of them from the very outset. Ms Oliver had misgivings about whether she would be able to obtain finance because of the credit difficulties she had, namely those I described at paragraph [15] above.

94. At the same time, Mr Parker wanted Ms Oliver to contribute to the property. His evidence, which I accept, was to the effect that he was very motivated by the unpleasantness of the dispute with his ex-wife (which was happening at the same time as the purchase of the property) to ensure that Ms Oliver made a contribution to the purchase of the property and that her contribution was clear. He did not wish to end up in a dispute with either Ms Oliver or his ex-wife about whether and to what extent Ms Oliver was entitled to an interest in the Wedderburn property.

95. Both Mr Parker and Ms Oliver spoke to a representative or agent of Members Equity about obtaining finance to complete the purchase of the property. This seems to have involved a refinancing of the mortgage over the Bradbury property, but nothing really turns on this. When they spoke with the bank in February 2013, they (but most probably Mr Parker having regard to the terms of the document) made it clear that they wished to purchase the property together and that they also wished to borrow funds jointly for that purpose.

96. However, Ms Oliver’s misgivings about obtaining finance were justified. The bank told them that the loan would not be approved or that it was unlikely to be approved while ever she was nominated as a borrower. This was because of her credit rating, as she had feared.

97. Nonetheless, each of Mr Parker and Ms Oliver still wished to purchase the property. It was in this context that Mr Parker said:

“We will both still be partners on the property. But why don’t I put it just in my name for now. When your credit rating issues are sorted out, we can put it back in both our names.”

98. At some point, likely in the second half of February 2013 after the discussions with Members Equity, Mr Parker entered into a new contract to purchase the property in his name alone.

99. It was in this context that, shortly after completion, Mr Parker said to Ms Oliver:

“It’s in my name. But don’t worry, the property is ours. It is not just mine. We are partners in this. We will sort out the names on the property later.”

100. I am satisfied that Mr Parker intended for Ms Oliver to have a 50% interest in the property and that he expressed this intention when he spoke the words just mentioned. His intention for Ms Oliver to have a 50% interest was formed well prior to the purchase and did not subsequently change. Ms Oliver well understood that this was his intention.

101. This was also his intention regardless of any other conclusion that might be reached about whether Ms Oliver did or did not borrow $200,000 from Mr Scahill and regardless of whether she contributed 50% or some other proportion of the purchase price. So far as the loan from Scahill is concerned, the possibilities are these: either (a) Mr Parker borrowed from Mr Scahill but directed him to pay the money to Ms Oliver so that would look to all the world as though it were her contribution; or (b) Ms Oliver took out the loan and contributed $200,000 to the purchase price on her own account. So far as the additional cash contributed by Ms Oliver towards the purchase price is concerned, the possibilities are broadly the same: either (a) Mr Scahill put money into her account so that she could contribute to the purchase price, or (b) he put money into her account so that it would look to all the world as if she had contributed to the purchase price. On any view, Mr Parker’s actions are consistent with an intention on his part for Ms Oliver to have a 50% interest in the property.

102. I am therefore satisfied that Mr Parker made a declaration of trust in relation to the Wedderburn property in favour of Ms Oliver, and that her interest under that trust was as an equitable tenant in common as to 50%. The declaration was made at about the time of purchase.

Was the declaration of trust recorded in writing?

103. Mr Parker did not make any written record of his declaration of trust in favour of Ms Oliver at the time, nor at any subsequent time prior to the commencement of these proceedings. Although, as I have mentioned above, there was some suggestion that in 2013 Mr Parker lodged a caveat over the Wedderburn property which stated that Ms Oliver had an equitable interest in the property, that caveat was not in evidence and I am not prepared to draw any conclusions about its existence or contents in the light of the state of evidence surrounding that issue.

104. The plaintiffs’ case in relation to the requirement of writing rested entirely on the proposition that the written evidence of Mr Parker contained in his affidavits sworn in these proceedings, particularly his 20 September 2021 affidavit, was sufficient compliance with s 23C(1)(b) of the Conveyancing Act. The issue here is whether affidavit evidence sworn in the proceedings in which the question arises is sufficient compliance with that requirement.

105. Section 23C(1) is as follows:

(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.

106. The plaintiffs particularly rely on what was said in Barkworth v Young (1856) 26 LJ Ch 153 (Barkworth).

107. In Barkworth the plaintiff alleged that he married his wife on the premise of an oral agreement with his father-in-law which stipulated that he (the father-in-law) would leave a share of his estate to his daughter. Subsequently, the father-in-law brought proceedings against the plaintiff in order to have the plaintiff declared a lunatic, wherein the father-in-law swore an affidavit stating that he had indeed made the promise of inheritance to the plaintiff. The father-in-law then died without leaving any provision for the plaintiff, his then deceased daughter (the plaintiff’s wife) or the children of the couple.

108. The plaintiff brought proceedings against the executors of the father’s estate to enforce the earlier oral agreement. The executors relied on the Statute of Frauds 1677 (UK) and pleaded that there was no writing evidencing the agreement. Sir RT Kindersley, Vice Chancellor in the High Court of Chancery found that the earlier affidavit sworn in the lunacy proceedings was sufficient to meet the writing requirement. The Vice-Chancellor said at 6:

“Now, to determine this point, it is necessary to consider what was the object of the Statute of Frauds, at least of the fourth section. Its object was to prevent the mischief arising from resorting to oral evidence to prove the existence and the terms of an alleged verbal agreement in certain specified cases, and, among the rest, an agreement made in consideration of marriage, it having been found that in actions and suits to enforce such agreements they were (in the language of the preamble) "commonly endeavoured to be upheld by perjury and subornation of perjury." It is obvious that there can be no ground to apprehend any such mischief in any case in which you have, under the hand of the party sought to be charged, a written statement of the agreement which he made and of all its terms, and for this purpose it can signify nothing what is the nature or character of the document containing such written statement, provided it be signed by the party sought to be charged ; whether it was a letter written by that party to the person with whom he contracted or to any other person, or a deed or other legal instrument, or an answer to a bill, or an affidavit in Chancery or in bankruptcy or in lunacy. Thus, where a verbal agreement was made for the sale of land, a letter written by the vendor or purchaser to his own solicitor or agent stating the terms of the agreement, and not intended for the inspection of the other party, has been held to be a sufficient note or memorandum within the intent of the statute: Rose v. Cunyngham (11 'Ves. 550), Welford v. Beazeley (3 Atk. 503, per Lord Hardwicke). So a letter written by the vendor to his mortgagee: Seagood v. Meale (Pre. Cha. 560). In Welford v. Beazeley (3 Atk. 503) the Defendant, previously to the marriage of Plaintiff with her daughter, had verbally agreed to give her a marriage portion of £1000. Articles were executed settling the £1000. Defendant was not a party to the articles, but signed them as a witness knowing their contents. This was held a sufficient note or memorandum within the intent of the statute. Now in that case the Defendant, in attesting the articles, had no intention of giving a note or memorandum in writing. But Lord Hardwicke said, "The meaning of the statute is to reduce contracts to a certainty, in order to avoid perjury on the one band and fraud on the other, and, therefore, both in this Court and in the Courts of Common Law, where an agreement had been reduced to such a certainty and the substance of the statute has been complied with in the material part, the forms have never been insisted upon." I may here add that it is no doubt on the same principle that, if a bill is filed to enforce a verbal agreement, and the Defendant by his answer simply admits it without insisting on the statute by the answer, the Court will decree performance, notwithstanding that the Defendant, at the hearing, insists on the benefit of the statute, because you have here all that it was the design of the statute to require - a statement of the terms of the agreement in writing signed by the Defendants. Indeed, formerly, this Court went so far as to hold (though the decisions have been since properly overruled) that, if the answer contained an admission of the parol agreement, though accompanied by a protest insisting on the statute, the Plaintiffs should have a decree. I think the principle of all these cases is applicable to the present. We have a writing signed by the. testator, stating the fact and the terms of the prior parol agreement or promise; and that is what is required by the intent of the statute. Indeed it is impossible not to feel that there seems even more justice in binding a person by such a statement of the agreement as is contained in this affidavit, which is prepared with all caution and deliberation, and which, in addition to the party's signature, is stamped with the solemnity of his oath, and which was intended to be perused by the party with whom the contract was made, than by a mere letter addressed to her own solicitor or mortgagee, written perhaps hastily and carelessly, and never intended to come to the knowledge of the other party.

I am of opinion that the statement in the affidavit of the testator set out in paragraph seven of the bill is a sufficient note or memorandum in writing within the intent of the statute.”

109. This lengthy passage was relied on by Ms Oliver to support her contention that Mr Parker’s affidavit evidence in these proceedings can satisfy the s 23C requirement. I note however that the requirement was satisfied in Barkworth by reference to an affidavit that was already in existence at the time the proceedings before the Vice Chancellor were commenced.

110. The plaintiffs also referred me to a number of other decisions in support of the contention that the writing requirement may be met by way of an affidavit sworn in the proceedings in which the existence of a memorandum in writing was one of the facts in issue. So, for example, I was referred to Equuscorp Pty Ltd v Jiminez [2002] SASC 225 where Besanko J rejected a claim that the writing requirement had been met by way of an affidavit sworn in the proceedings but on the narrow basis that it was not sworn by both putative settlors and because it did not set out the terms of the trust: see especially [116]-[123].

111. I was also referred to the decision of Lee J in Secretary, Department of Social Security v James (1990) 95 ALR 615 at 622, a decision on which Besanko J had relied. Those proceedings were an appeal from a decision of the Administrative Appeals Tribunal in which the Tribunal had found that at the time of purchasing an apartment, the respondent had made a declaration of trust in favour of her daughter and grand-daughter. On appeal, the Secretary contended that the Tribunal had erred in point of law by failing properly to construe s 34 of the Property Law Act 1969 (WA) and by therefore wrongly concluding that the respondent had validly declared a trust.

112. Lee J said:

“The requirements of para.34(1)(b) may be satisfied by a combination of documents capable of being read together. Any informal writing may stand as evidence of the existence of a trust including correspondence from third parties, a telegram, an affidavit or an answer to interrogatories.

The date of creation of the writing is not material. It may come into existence at any time after the declaration of the trust.”

113. His Honour then addressed the particular issue in that case. He noted:

“The Tribunal turned its attention to this question and found the necessary writing to be supplied in the letter from the respondent to the Department dated 23 November 1983 and in the submission the respondent had written in support of her application for a pension in December 1987.

Although the Tribunal did not refer to it, it may have included in the combination of documents the written application for the review of the departmental decision signed by the respondent on 1 May 1988 which stated as follows:

"The unit is not used as an asset. I provided it as a home for my invalid-pensioner daughter...The deeds have been left in my name to protect her. There are instructions in my will to provide this home for her after my death. It will devolve eventually on her daughter, Miriam, if her mother dies after me."

In combination, those documents may have provided writing to confirm an intention to create a trust, to identify the daughter and grand-daughter as objects of the trust, to identify the home unit as the property subject to the trust and to state the terms of the trust to be a life estate for the daughter the with remainder to the grand-daughter.”

114. Ms Oliver particularly relies on these parts of Justice Lee’s reasons.

115. However, that was not the end of the matter. The substance of the Secretary’s argument was that none of these written memoranda set out the actual terms of the trust. The Tribunal’s decision that the writing requirement was satisfied depended, so the Secretary argued, on statements made in oral evidence as to the terms of the trust. The Secretary’s argument was that in concluding that the writing requirement was satisfied, the Tribunal erred by taking into account evidence given in the very proceedings before the Tribunal. His Honour accepted this argument. His conclusions at 624 were as follows:

“It may be seen that in having regard to extrinsic evidence for the purpose of "clarifying" the terms on which the trust was held, the Tribunal had resort to oral evidence which augmented, rather than clarified, the writing upon which the respondent relied to satisfy the requirements of para.34(1)(b) of the Property Law Act 1969 (W.A.). The parol evidence supplied elements that were missing in that writing. This was not a case of the parol evidence resolving a matter to which the writing had referred. (See Harewood v Retese (1990) 1 WLR 333 (Privy Council).) The Tribunal appeared to confuse the question of the sufficiency of the evidence required to persuade the Tribunal that there had been a declaration of trust with the question whether there had been sufficient evidence to show that the requirements of para.34(1)(b) of the Property Law Act 1969 (W.A.) had been met. The Tribunal did not confine its consideration of the latter question to whether such a declaration and the terms of the trust had been further manifested and proved by writing for the purposes of para.34(1)(b). It reached its conclusion that the paragraph was so satisfied by reliance upon the oral evidence.

In so acting, the Tribunal misunderstood the requirements of para.34(1)(b) of the Property Law Act 1969 (W.A.) and erred in law in its finding that the requirements of the paragraph were satisfied. It was not contended that this was a case where oral evidence may be relied upon to prevent the statement being used as an instrument of fraud: Dalton v Christofis (1978) WAR 42; Allen v Snyder (1977) 2 NSWLR 685; Wratten v Hunter (1978) 2 NSWLR 367.)”

116. So understood, James does not assist the plaintiffs here. It affirms that the writing requirement may be satisfied by a later affidavit, but it is not authority for the proposition that the writing requirement may be met by affidavit evidence given in the proceedings in which the existence of that requirement is in issue.

117. Next, I was referred to the decision of Besanko J in Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53; [2006] FCAFC 157 (Draper). This was an appeal from a Federal Magistrate in which the Full Federal Court found errors sufficient to warrant an order for rehearing, including the rehearing of a contention that certain property was held subject to an express trust. The Court was comprised of Mansfield, Rares and Besanko JJ.

118. Mansfield J was of the view that the question of whether the property was held subject to the terms of an express trust needed to be reheard. As to whether the writing requirement had been met, his Honour said at [39]:

“In my view, there has been no review of the various documents produced by Mr Draper , including his affidavits, to determine if s 29(1)(b) has been satisfied: …..His Honour has addressed only the existence of a writing creating the trust in favour of Mrs Draper at the time of the acquisition or settlement of the MacDonald Park property. Section 29(2) in any event provides that the requirements of s 29(1) do not affect the creation of a constructive or implied trust. The significance, if any, of s 29 of the Law of Property Act 1936 should be revisited on the rehearing.”

119. Rares J agreed with Mansfield J: see [76]. As to this particular issue, his Honour said at [85]-[86]:

“85 Both Mansfield J and Besanko J refer to s 29 of the Law of Property Act 1936 (SA) and to the fact that there has been no review of the various documents produced by Mr Draper, including his affidavits in proceedings, to determine whether those affidavits constitute a sufficient declaration in writing of any trust. However, some caution must be applied to the use of Mr Draper's affidavits and other documents which were made after the time he became bankrupt. At that moment he ceased to be a person with any interest in the property. Whatever interest he held, even if it were a bare legal title, had passed to the trustee by force of s 58 of the Bankruptcy Act 1966 (Cth) (although it may have taken some time for the mechanics of the legal title to be passed under s 58(2)).

86 At the time Mr Draper swore his affidavits, he was no longer a person who had any relevant interest in the MacDonald Park property. Prima facie, consideration must be given to whether, once the trustee in bankruptcy became entitled to be, or became, registered as proprietor, only writing signed by the trustee or on his behalf could amount to a relevant declaration against interest or evidence of a trust. An affidavit of Mr Draper may be probative of the truth of the facts which it contains, even if it does not provide the writing required by s 29(1)(b) or the old s 4 of the Statute of Frauds 1677 (UK).”

120. His Honour’s ultimate conclusion on this issue, at [88], was that “the parties should have an opportunity to research this matter and address it at the new trial.”

121. Besanko J, in a passage on which Ms Oliver particularly relies, said at [159]:

“The relevant paragraph of s 29(1) for present purposes is (b): Secretary, Department of Social Security v James [1990] FCA 150; (1990) 95 ALR 615; Equuscorp Pty Ltd v Jimenez and Ors (2002) 220 LSJS 252. In order to satisfy the requirements of the section the writing must clearly set out the beneficiaries, the trust property and the nature of the trust: Smith v Matthews (1861) 3 De GF & J 139 at 151; [1861] EngR 426; 45 ER 831 at 836 per Sir George Turner LJ; Equuscorp Pty Ltd v Jimenez (supra) at [122]. It is well-established that an affidavit executed after, and even well after, the alleged declaration or agreement may be sufficient to satisfy the requirements of s 29(1): Barkworth v Young (1856) 26 LJ Ch 153. It would seem that this principle applies even though, because of the supervening bankruptcy of the alleged trustee, the affidavit is sworn by the alleged trustee at a time when he appears to have an interest in a finding that there is a trust or, at least, is supporting a finding to that effect, although on the rehearing the respondent will not be precluded from submitting that because of the words used in s 29(1)(b) the writing is only effective if signed by the person able to declare the trust at a time when he or she was able to declare the trust. At all events, the short point is that the Magistrate appears not to have considered the possible operation of these principles and it is arguable – and for present purposes I need put it no higher than that because it is a matter to be determined on a rehearing – that statements in one or more of the affidavits sworn by Mr Draper satisfy the requirements of the section.”

122. I can accept that his Honour here assumed that an affidavit sworn in the proceedings could conceivably satisfy the writing requirement. But that does not seem to have been the assumption underlying the reasons of any other member of the Court, nor does it seem to have been the subject of any argument. I would therefore not treat Draper as authority for the proposition for which the plaintiffs cite it.

123. Next, the plaintiffs referred me to a decision of Besanko J in Kelly v Commissioner of Taxation [2012] FCA 423 (Kelly). That case concerned Mr Kelly’s liability to tax as a partner of a Queensland law firm. At issue was whether and, if so, the extent to which the partners of the firm had successfully assigned interests in the partnership to two related trusts.

124. The question of compliance with the writing requirement under s 11(1)(c) of the Property Law Act 1974 (Qld) arose in relation to a series of transactions which was said to have taken place in 2005, although there was no sale agreement or assignment agreement in evidence.

125. At [189] and following, Besanko J addressed two related points taken by the Commissioner of Taxation by reference to the Property Law Act. The first is described at [190]. It was that the rights of partners to partnership property while the partnership carries on business are indivisible and that any attempt to assign a “collective” interest is ineffective at law.

126. The second is described at [191] and was closely related to the issue just mentioned. It was that:

“….the requirement for writing in s 11(1)(c) of the Property Law Act can only be satisfied by writing recording individual assignments. It cannot be satisfied by writing recording an assignment of a “collective” interest of, in this case, a 30% interest. The Commissioner contends that the statements in Mr Kelly’s affidavit and in the affidavits of other witnesses he called do not satisfy the requirement for writing because they record an assignment of a 30% interest in the BCK Partnership, not individual assignments by individual partners.”

127. I note that neither of the submissions put by the Commissioner involved the anterior proposition that the writing requirement may not be met by an affidavit sworn in the proceedings in which the existence of the writing requirement is in issue.

128. Besanko J rejected both of the Commissioner’s submissions. In relation to the first submission, his Honour held that it was clear from the “objective circumstances” that the partners had intended to assign a 30% interest in the partnership and that if the transferee trust had sued on the transaction:

“… any difficulty with the identification of the subject matter of the assignment would have been overcome, bearing in mind that there was consideration for the transaction, by the Court inferring that each partner assigned 30% of his individual interest, or by extrapolating from the total purchase price and the consideration paid to each partner as revealed in the internal records of the BCK Partnership group the relevant interests transferred”

129. As to the second of the Commissioner’s submissions, his Honour said:

“I am not aware of any authority which aids in the resolution of the second issue. However, bearing in mind my view that the Court would overcome the difficulty in identifying the subject matter of the assignments in the manner I have indicated, I think the statements in the affidavits of Mr Kelly and the other witnesses called by him are sufficient to satisfy the requirement for writing. I should make the point that the statements in the affidavits are not received as admissions against interest. They would not meet that description in the circumstances of this case. They are received as satisfying the requirement for writing in s 11(1)(c) of the Property Law Act.”

130. There seems to be no doubt that his Honour – indeed all parties – took the view that the affidavits sworn in the proceedings could be relied upon by Mr Kelly to demonstrate compliance with the Property Law Act. The only question was whether they did so.

131. An appeal and cross-appeal were dismissed in Kelly v Federal Commissioner of Taxation [2013] FCAFC 88. The Full Federal Court seems to have found the Commissioner’s submissions on this point to be somewhat arcane: see their sceptical observations at [63], where the Court described the Commissioner’s submissions as having an air of unreality. The Full Federal Court was however not asked to consider whether the primary judge had been correct to proceed on the basis that the affidavits sworn in the proceedings could satisfy the writing requirement in the first place. I do not read the reasons as having anything to say about that point.

132. On balance, whilst the reasons of Besanko J are entitled to be treated with due deference, I do not regard Kelly as authority for the proposition that the writing requirement may be met in the manner for which the plaintiffs contend.

133. Such other authority as I have been able to identify is directly against the plaintiffs on this point.

134. In Dudgeon v Chie (1954) 55 SR (NSW) 450, Mrs Chie claimed to have been entitled, since 1953, to the possession of a dairy farm at Numulgi, NSW. She issued a writ of ejectment to recover possession from the farmer, Mr Dudgeon. Mrs Chie applied for an order striking out Mr Dudgeon’s appearance and particulars of defence and for leave to enter judgment. Mr Dudgeon’s particulars of defence included a claim that the farm was a holding within the meaning of the Agricultural Holdings Act 1941 and that he had not been given notice pursuant to the provisions of that Act. His basis for contending that the farm was a holding within the meaning of that Act was the written share-farming agreement of 12 October 1945, which agreement had never been terminated. Mrs Chie contended that this agreement had been terminated in March 1950 and that, thereafter, only an oral agreement had been in place.

135. It was common ground that if the share-farming agreement was oral, Mr Dudgeon could not succeed on this defence. The Court noted that the effect of relevant authority was that “the provisions of s. 24, read with s. 5 of the Agricultural Holdings Act, 1941, render the agreement one that is incapable of performance within one year from the making thereof, so that s. 4 of the Statute of Frauds…..applies to it.”

136. Mr Dudgeon then argued that if the true position was that the agreement of 1950 was a new oral agreement, then Mrs Chie’s own affidavit in the proceedings in which she deposed to the existence of the agreement, was sufficient writing of it. The Court (Street CJ and Roper CJ in Eq, Herron J dissenting) rejected this argument. At 467 to 469 the majority explained that an affidavit sworn by the plaintiff for the purpose of the rules (relevantly, rule 27) cannot be used in the same action by a defendant for the purpose of providing sufficient written evidence to satisfy the Statute of Frauds. Their Honours referred to Barkworth but noted that it was a case in which the affidavit in question had been sworn in earlier proceedings.

137. Furthermore, their Honours expressly left open the question of whether the writing in question needed also to be in existence when the party relying on it becomes a party to the action: see their Honours’ reference to Lucas v Dixon (1889) 22 QBD 357 at 469.

138. To like effect is Popiw v Popiw [1959] VR 197, especially at 200 where the Court followed Dudgeon v Chie on this point; and South Coast Oils (Q and NSW) Pty Ltd v Look Enterprises Pty Ltd [1988] 1 Qd R 680 at 690.

139. Dudgeon v Chie has been followed in the Court of Appeal. In Fletcher v Burns (1997) 12 BPR 22937 the plaintiff sued the executors of an estate in an effort to enforce an alleged oral contract made with the deceased in relation to the transfer of land. The Court of Appeal held that the plaintiff was unable to rely on an affidavit sworn by the first defendant as satisfaction of the writing requirement. Handley JA (with Cole JA and Dunford AJA agreeing) said at 22938:

“The affidavit of the first defendant filed after the commencement of the proceedings cannot be a sufficient memorandum because it was not in existence when the proceedings were commenced: see Dudgeon v Chie (1954) 55 SR (NSW) 450 at 469 ; Farr Smith & GLtd v Messers Ltd [1928] 1 KB 397 at 405–8 ; J Williams, The Statute of Frauds: section four, Cambridge University Press, Cambridge, 1932, at 76–9.”

140. Finally, I note that in Ciaglia v Ciaglia [2010] NSWSC 341, White J said at [86]:

“An agreement to mortgage or charge land is within s 54A (Khoury v Khouri at [5] and cases there cited). There is no note or memorandum of the agreement signed by the deceased or his agent. There is a note or memorandum of the agreement signed by the person to be charged, that is, the defendant. She has verified her defence which admits all of the terms of the agreement. The decisions of the Full Court in Dudgeon v Chie (1954) 55 SR (NSW) 450 and the Court of Appeal in Fletcher v Burns (1997) 12 BPR 22,937 and the earlier decisions in Walters v Morgan (1792) 2 Cox 369; 30 ER 169; Cooth v Jackson (1801) 6 Ves J un 12; 31 ER 913 at 39 at 927; and Blagden v Bradbear (1806) 12 Ves J un 466; 33 ER 176 at 471 at 178 preclude reliance upon the defence, and the defendant's affidavit verifying the defence, as constituting a sufficient note or memorandum. (See also Sugden, A Concise and Practical Treatise of the Law of Vendors and Purchasers of Estates, 14th ed (1862) H. Sweet at 149 and Williams, The Statute of Frauds Section IV at 276-277.) This result has been strongly criticised (Greig & Davis, The Law of Contract (1987) LawBook Co at 696) but the authorities are binding upon me. The plaintiff did not seek to rely upon the defence, or the affidavit verifying the defence, as a sufficient note or memorandum.”

Would such reliance have made any difference to the outcome?

225. Had it been necessary to consider this issue, I would have accepted that the mortgage payments were a form of detrimental reliance on Mr Parker’s representations but that the reliance was not sufficient (or sufficiently detrimental) to justify the relief which Ms Oliver seeks.

226. Ms Oliver’s evidence showed that between 2015 and 2018, she paid a total of $87,470.21 towards the Members Equity mortgage over the Wedderburn property. At the same time, she paid a total of $65,117.60 towards the mortgage on the Bradbury property. All of these funds seem first to have been paid by Ms Oliver into offset accounts and, from there, towards the mortgage accounts. There was no evidence as to where Ms Oliver obtained the funds which she paid towards the mortgage on the Bradbury property.

227. As to the funds she paid towards the Wedderburn mortgage, she gave evidence in cross examination that she made those payments in order “keep the property”. She agreed that she did not consider the payments to be a loan to Mr Parker. In re-examination, she essentially repeated her affidavit evidence in chief on this issue, namely that she did not really give any thought at the time to the character of the mortgage payments.

228. She also explained that of the funds she paid towards the mortgage, $40,000 was given to her by Mr Parker’s father-in-law. She agreed that it was given to her to contribute to the mortgage but she also said that it was up to her what she used it for. Even so, she did not dispute that she was given it to help with the mortgage. The rest seems to have been sourced from a small inheritance and from an injury compensation award.

229. On the other hand, I accept that Ms Oliver spent several years paying the mortgage on her partner’s property while he was in prison. She probably did so on the understanding that what he had said all along about her ownership interest still held good. Of the approximately $87,000 which she paid to Members Equity, $40,000 was given to her in order to pay towards the mortgage.

230. If I were to take all of these circumstances into account, the same considerations of proportionality discussed above would have led me to the same conclusion, namely that it would be out of all proportion to her real detriment to declare that she is entitled to 50% of the Wedderburn property.

Subrogation

231. Ms Oliver also seeks to be subrogated to the rights of Members Equity as mortgagee “in respect to the payments she made in discharge” of the Members Equity mortgage.

What is the significance of the fact that the Members Equity debt has not been fully repaid?

232. Ms Oliver accepts that the weight of academic opinion seems to be that there can generally be no subrogation unless the whole of the secured debt has been paid off. She submits, however, that the correct position is that it is only the enforcement or exercise of a right of subrogation that must await the payment out of the security and that a right of subrogation may in fact crystallise before that occurs. She submits that it is appropriate here to order that she be subrogated to the rights of Members Equity but that I make clear that she is not entitled to enforce any such right until such time as the Members Equity mortgage has been discharged.

233. I was referred to State Bank of New South Wales v Geeport Developments Pty Ltd (1991) 5 BPR 11, 947 where Cohen J held that a right of subrogation can arise from part payment of a security. His Honour said:

“... there will be a subrogation of a proportionate part of the security. It may well be that the right to exercise that subrogation may not come into existence until the whole of the debt has been paid, whether by the principal debtor or another person so that the right until then remains dormant. This however seems more a matter of enforcement rather than a question of the rights which exist.”

234. Black J noted those observations in Padovan and anor v MGG Group Pty Ltd (in liq) [2011] NSWSC 1080. His Honour accepted that it was in principle possible to make an order for subrogation in relation to a secured lender whose debt had not yet been paid in full by the sale of the property over which security was held, but declined to do so until such time as the lender had been heard: see paragraph [31]. I also note that that was a case in which the land over which the security was held was sold and where the proceeds were insufficient to discharge the guaranteed debt. It was not a case where the security remained on foot.

235. In Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753, Robb J reviewed each of these authorities and concluded that:

“It is established principle that no right of subrogation can be exercised by any party who pays some or all of the mortgage debt until the whole of the debt has been repaid. No such third party can exercise or interfere with the right of exercise of the original mortgagee’s security rights until that mortgagee has entirely been repaid.”

236. These authorities support Ms Oliver’s contention that an order for subrogation may be made in circumstances where the original mortgagee’s debt has not been fully repaid, but that that right cannot be exercised until the whole of the debt has been paid.

Should an order for subrogation be made here?

237. What is less clear is whether Ms Oliver is entitled to be subrogated to the rights of the mortgage in the first place. As I have already concluded, she is entitled to be recognised in equity as the 31.75% owner of the property.

238. Ms Oliver’s evidence as to the circumstances in which she made payments on the Members Equity mortgage was largely uninformative, in that she said she really did not turn her mind to the basis on which she was making the payments. She did not turn her mind to whether the amounts were a loan, a gift or a payment of any other character. Mr Parker gave no evidence that would assist me to understand the basis on which Ms Oliver made these payments.

239. Ms Oliver points out that a right of subrogation may arise notwithstanding that the person making the payments had no positive intention to be secured by the original security. The absence of a common intention on the part of the borrower and the lender that the lender should have security has been held not to be fatal to the lender’s later claim to subrogation: Cheltenham & Gloucester Plc v Appleyard [2004] EWCA Civ 291 at [40], quoted with approval in Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393 at [59].

240. However, the facts here are in a rather different category. Although I have a somewhat unclear picture as to why the payments were made at all, the most likely possibilities are these: either Ms Oliver was paying Mr Parker’s mortgage as a favour to him using funds provided by third parties for Mr Parker’s own benefit; or she was using those funds in the understanding that the payments were for her and Mr Parker’s joint benefit, recognising that she was an owner of an equitable interest in the property. What is most unlikely is that she was making the payments in the hope or expectation that she would be able to recover them from Mr Parker and, failing that, that she would enforce a security by selling the Wedderburn property.

241. In Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44 at [90], Gummow, Hayne, Heydon, Kiefel and Bell JJ said:

“90 Subrogation, like other equitable doctrines, is applicable to a variety of circumstances, as explained earlier in these reasons. One circumstance concerns sureties, another the paying off of an existing mortgage. But that is not to say that subrogation is a “tangled web” in need of the imposition of the “top-down” reasoning which is a characteristic of some all-embracing theories of unjust enrichment.

…

94 As these reasons have sought to show, the relevant principles of equity do not operate at large and in an idiosyncratic fashion. So it was that in Boscawen v Bajwa, Millett LJ, after denying that subrogation is a remedy which the court has a general discretion to impose whenever it thinks fit to do so, went on:

‘The equity arises from the conduct of the parties on well settled principles and in defined circumstances which make it unconscionable for the defendant to deny the proprietary interest claimed by the plaintiff.’”

242. In Aged Care Services Pty Ltd v Kanning Services Pty Ltd, Gleeson JA referred to the presumption which arises where a third party pays off a mortgage, namely that “the mortgage shall be kept alive for his own benefit”: [52] and the cases there cited. His Honour also referred to the reasons of Kearney J in Cochrane v Cochrane (1985) 3 NSWLR 403 where his Honour said at 405:

“This principle is based on equity's concern to prevent one party obtaining an advantage at the expense of another which in the circumstances of the case is unconscionable. Hence, there is a common thread running through the relevant cases to the effect that the conscience of the mortgagor should be affected so as to cause the mortgage to be kept alive. This is illustrated in the text book examples first, of a third party not being entitled to a right by way of subrogation where he simply lends the money on an unsecured basis to the mortgagor who then uses such funds to pay off the mortgage; and secondly, of a third party being so entitled where he advances the money to pay out the mortgage on the understanding that security would be provided for such advance upon the mortgage being paid out.”

243. As Gleeson JA also explained, the intention of the payer is clearly relevant to the question of whether any presumption has been rebutted: [63].

244. I accept that Ms Oliver is a “third party” to the mortgage in the sense in which that expression has been used in the authorities. The fact that she has paid off some part of the mortgage gives rise to the presumption to which the cases have referred. However, the evidence displaces that presumption here.

245. There are three somewhat overlapping matters that are of particular relevance. The first is that the evidence shows that Ms Oliver had no intention of ever recovering these payments from Mr Parker, either on an unsecured or secured basis. She certainly did not consider the payments to be a loan to Mr Parker. At best, she gave the matter no thought. The fact that she saw herself as an owner of the property and that she kept paying the mortgage in order to keep the property is inconsistent with her claim now to be subrogated to the rights of the mortgagee.

246. The second matter concerns the fact, discussed above, that a significant proportion of the funds Ms Oliver used to pay the mortgage were given to her by Mr Parker’s father-in-law. Ms Oliver invited me to treat these funds as if they were simply her own and that she should be as free to recover them from Mr Parker by enforcing a security to which she was subrogated as if she had obtained the funds from any other source. However, the fact that she was given the funds by Mr Parker’s father-in-law inevitably bears on the question of whether it would be inequitable to allow Mr Parker to deny Ms Oliver a security interest in the property. To the extent of those payments, at least, Mr Parker has not really gained an advantage over Ms Oliver in a way that binds his conscience in the sense explained by Gleeson JA in Aged Care Services v Kanning.

247. The third matter concerns the fact that the Members Equity mortgage has not been discharged. I can accept that as a matter of principle I am able to make an order for subrogation in these circumstances, but it does not follow that such an order will always be appropriate. Here, there is no evidence as to the extent to which Mr Parker repaid the mortgage prior to his arrest (or otherwise) and there is no evidence as to the remaining indebtedness. The question of whether and the extent to which the payments which Ms Oliver made entitle her to an order for subrogation is not able finally to be determined until those matters are known. Ultimately, the question will be whether, when the mortgage is discharged, it would be unconscionable of Mr Parker to deny that Ms Oliver has a security interest in the property to secure repayment of the amounts she contributed to the mortgage. The answer to that question will need to take account of all payments made by Mr Parker or on his behalf up to the time of the mortgage being discharged. It will also need to take account of any payments made by anyone else, including Ms Oliver.

248. I therefore decline to make an order that Ms Oliver be subrogated to the security of Members Equity in relation to the payments she made discharging the mortgage.

Is Mr Scahill entitled to judgment in relation to the $200,000?

249. The main issue in the 2022 proceedings is whether the $200,000 which Ms Oliver borrowed from Mr Scahill is due and payable notwithstanding that Mr Parker paid $200,000 (or possibly $220,000, although nothing seems to turn on that issue) in cash to Mr Scahill in April or May 2013 in purported repayment of that loan.

250. I have already referred in broad terms to the way in which this issue arises but it is necessary to identify some additional matters.

Additional matters relevant to the 2022 proceedings

251. At the time Mr Parker paid $200,000 to Mr Scahill, Mr Scahill had already been harassing him for payment for about a month. There is no doubt that Mr Scahill had made demand for payment through Mr Parker. When Mr Parker paid Mr Scahill in cash, he said that he was repaying Ms Oliver’s loan. After that point, Mr Parker’s demands for payment ceased. He accepted payment in satisfaction of the payment obligation. All parties, at that point, understood that the loan had been repaid. I would reach the same conclusions, adapted to the facts, regardless of whether the loan had been to Ms Oliver or Mr Parker.

252. The loan was undocumented and payable on demand. Mr Scahill disclaimed any reliance on any implied term in the loan agreement, such as a covenant as to how the borrower would obtain the funds. His case was put on the limited basis that the original payment obligation was “revived” after the AFP seized the $200,0000 from Mr Scahill’s possession some 15 months after he had received it.

253. As to the circumstances in which the $200,000 was seized, the evidence shows the following.

254. In addition to the payment of the $200,000 which is the subject of the 2022 proceedings, by 24 July 2014 Mr Parker had also deposited a total of $473,350.75 into the Scahill & Co trust account. These deposits related to an agreement between Renwick Street and Mr Parker whereby the former would “design, supervise and temporarily fund construction of a residential dwelling” on the Wedderburn property.

255. On 24 July 2014 the AFP executed a search warrant at the premises of Scahill & Co. Having become aware of the $473,350.75 in the trust account, the officers informed Mr Scahill that they would require those funds to be paid to the Official Trustee. The AFP subsequently took steps to obtain orders from Hulme AJ pursuant to s 19(1)(b) of the Proceeds of Crime Act 2002 (Cth) to prevent any disposal of those funds and pursuant to ss 38 and 39 of that Act to require the funds to be paid to the Official Trustee. Those orders were made on 1 August 2014.

256. In the meantime, however, Mr Scahill “realised that cash being held in the safety deposit boxes…., which included cash held on behalf of clients, was at risk of being confiscated by the AFP”. He claims that he “was concerned that if confiscated [he] would be personally responsible for having to pay the clients back”.

257. The next day, being 25 July 2014, he therefore went to the banks where the safety deposit boxes were located and collected the cash from each safety deposit box. He also collected the $200,000 in cash that Mr Parker had given him in about April or May 2013. He did not say why he took the $200,000 from the safety deposit box. It was clearly not in the category of cash which had been collected from clients and which, if seized, he would have to repay.

258. He placed all of this cash into a light blue backpack and put it on the back seat of his car. He was intercepted by the AFP on his way back to the office. The AFP were in possession of a separate search warrant that authorised their search of his car. By virtue of s 3F(2) of the Crimes Act 1914 (Cth), that warrant authorised the officers to seize the cash in Mr Scahill’s possession and they did so.

259. Mr Scahill was charged and convicted of knowingly dealing with the proceeds of crime. Following his conviction, Mr Scahill agreed to consent orders pursuant to which certain property was to be forfeited to the Commonwealth. Correspondence identifying the substance of those consent orders shows that an amount of $194,413.30, among other amounts, was forfeited to the Commonwealth pursuant to s 38(2) of the Proceeds of Crime Act 2002.

260. Mr Scahill explained that the sum of $194,413.30 was the balance of the $200,000 received from Mr Parker, but less the sum of $5,586.70 which he was able to persuade the AFP was required to meet claims of clients.

261. Mr Scahill’s conviction was overturned and a new trial was ordered: Scahill v DPP (Cth) [2019] NSWCCA 190. Mr Scahill subsequently entered a plea on the basis that the four counts on the indictment be withdrawn and that they be rolled up into a single count of dealing with money or property that was the proceeds of crime, and was reckless as to the fact that the money or property was the proceeds of crime.

262. There is no dispute that the original charges and the charges to which he ultimately pleaded guilty related, at least in part, to the circumstances in which Mr Scahill received the $200,000 from Mr Parker.

263. Mr Scahill has not sought any order pursuant to Part 2.2 Division 5 of the Proceeds of Crime Act 2002, the part of that Act that contemplates the return of proceeds in certain circumstances.

Did either the seizure or forfeiture of the $200,000 “revive” the obligation to repay the loan?

264. Mr Scahill’s argument was that the “confiscation” of the $200,000 pursuant to the Proceeds of Crime Act 2002 had the effect of reviving the original obligation to repay. This argument was put chiefly by reference to the perceived injustice of allowing Mr Parker to use the proceeds of crime to repay the loan, but then leaving Mr Scahill out of pocket because of Mr Parker’s criminal activity.

265. The only authority to which Mr Scahill referred to support his argument was to some commentary on the effect of dishonoured cheques, bills of exchange or letters of credit: Goode on Payment Obligations in Commercial and Financial Transactions (3^rd Ed, 2016, Sweet & Maxwell). The particular passage referred to is at [2-23]:

“Where a cheque or other bill of exchange is accepted in payment of a money obligation, the presumption is that the acceptance is conditional on the cheque or bill being met, so that if it is dishonoured the payee, if still the holder, may either sue on the instrument or treat the cause of action on the underlying transaction as having revived.”

266. The authority cited for that proposition is Re Romer & Haslam [1893] 2 QB 286 and Michael Aronis & Aronis Nominees Pty Ltd (trading as Welland Tyrepower) v Hallett Brick Industries Ltd [1999] SASC 92. For a similar proposition in the context of letters of credit, the authors referred to Northwestern Shipping & Towage Co Pty Ltd v Commonwealth Bank of Australia (1993) 118 ALR 453, a decision of Gummow, Hill and Cooper JJ in the Full Federal Court.

267. Neither the passage in Goode nor the authorities to which the authors refer support the proposition for which Mr Scahill contends here. The issue in all of those cases, as paragraph [2-23] explains, is whether the terms of the underlying contract contemplate that that the payment obligation can be discharged by a negotiable instrument that is subsequently dishonoured. In the case of cheques and letters of credit, it is generally presumed that they cannot.

266. That, however, is not this case. Mr Scahill does not contend for any presumed or implied term of the loan agreement. Nor is there any basis upon which a similar term could be implied having regard to the circumstances in which the loan was made.

267. In the usual case, as the authors of Goode explain at paragraph [2-22]:

“….the tender of payment and acceptance of the tender are simultaneous and there no difficulty in seeing that payment has been made.”

270. Mr Scahill has made no submission that casts any doubt on the proposition that acceptance of a tender of legal tender discharges the obligation to pay. That proposition was explained in Goode at pages 9 and 26 and in Mann and Proctor on the Law of Money (8^th Ed, 2022, Oxford University Press) at [7.04].

271. Mr Scahill’s argument depended to a high degree on the circumstance that the physical cash which Mr Parker used to repay the loan was the same physical cash which was seized by the AFP. The focus on the physical cash is a distraction here. When Mr Scahill received the physical notes in repayment of Ms Oliver’s loan he also received the associated rights inherent in the notes as legal tender. This was explained in Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33 at [31] by French CJ and Hayne JJ:

“By the supply (constituted by sale and delivery of currency) the supplier supplies to the acquirer the rights that attach to the currency tokens. And that conclusion is not denied by describing the rights which attach to bank notes and other forms of currency, as the Solicitor-General did in argument in this Court, as "at most, incidents of possession ... not separately capable of 'creation, grant, transfer, assignment or surrender'". Describing the rights which attach to currency as "incidents of possession" is a description of the negotiable characteristics of the tokens; it does not deny that rights attach to currency and are passed upon negotiation of the currency by delivery.”

272. That case concerned the sale of foreign currency, but the relationship between the physical notes and the associated rights is no different in the case of tender of cash by a borrower in repayment of a loan.

273. The particular danger in equating a supply of banknotes to a supply of goods was explained by Heydon J at [54]:

“To transfer a book transfers no more than a right of ownership. But to transfer currency does more than transfer the right of ownership of the pieces of paper: it transfers the rights associated with legal tender. To use currency is to employ it in discharging debts, acquiring goods or services, and creating new debts. For the transferee to “use” the legal tender is to exercise those rights – it is to discharge obligations owed by the transferee or create new obligations in others. To use a book is to read it and keep it without altering the owner's legal relations with anyone else. To use currency is to spend it or transfer it to others as a means of altering the owner's legal relations with others.”

274. In the present case, Mr Scahill received the banknotes and took the benefit of all of the associated rights to use them. He was at that point free to use those rights and in fact, to some extent, he did do so: he persuaded the AFP that he required some of the $200,000 to meet his clients claims. He would equally have been entitled to take the banknotes to the racetrack and bet them on a horse, or to repay his own mortgage, or to spend them in any other way he desired. The fact that he did not do any of these things does not alter the fact that he accepted the cash in discharge of a debt and had the benefit of the associated rights, whether he kept the physical dollars in a bank vault or not.

275. It would have been open to Mr Scahill to protect his position by lending on terms commonly seen in commercial loan agreements. Such agreements often require borrowers to make a whole range of representations and to give a whole range of covenants as to, amongst many other things, compliance with laws (including but not limited to such things as modern slavery legislation) and requiring each of those covenants to be true for so long as the loan remains outstanding. Breaches of such terms can be sued on even after the loan is discharged: Tyree, Banking Law in Australia (10^th Ed, 2021, LexisNexis) at [3.4.3].

276. Mr Scahill took no such protections. Indeed he sought no contractual protection of any kind. He simply advanced cash that was repayable on demand. He was by his own admission criminally reckless in taking cash from Mr Parker in repayment.

277. I do not accept that where cash is used to repay a loan and where that cash is forfeited to the Commonwealth pursuant to the Proceeds of Crime Act, there is necessarily some general unfairness to the lender that needs to be ameliorated by reviving the repayment obligation. Mr Scahill has not cited any authority to support that proposition. I do not in any event accept that it will always be the case that the lender is an innocent.

278. Mr Scahill submitted that the terms of the Proceeds of Crime Act suggest an intention by Parliament that the underlying obligations of a lender whose cash is forfeited may, or should be, revived upon forfeiture.

279. There is nothing in the Act to suggest that the confiscation or forfeiture of property was intended to have any effect whatsoever on the transactions by which the person from whom property is confiscated or forfeited came to possess the property in the first place. It is, after all, a regime for the confiscation and forfeiture of property from a person’s possession. It is a not a regime of garnishment of payment obligations. The stated objects of the Act include to deter persons from committing crimes against the Commonwealth and to undermine the profitability of criminal enterprises: s 5. Those objects, and probably most of the others, would be thwarted by a regime which caused a person to forfeit money which was the proceeds of crime but which, at the same time, revived that person’s right to pursue the borrower for further payment.

280. There is as I have noted nothing stopping a lender from securing a contractual right to pursue a rogue who repays a loan with stolen cash. But that is a matter that is entirely outside the purview of the forfeiture provisions of the Act. The existence of such a right might become relevant on an application brought under Part 2.2, Division 5. However, none of those provisions have been invoked here.

281. In my view, Ms Oliver’s obligations were discharged when the loan was repaid in April or May 2013. They have not been revived.

282. It follows that the originating application in the 2022 proceedings will be dismissed.

Other matters

283. I have not found that there was any disposal or transfer of an interest in the Wedderburn property to which s 37A of the Conveyancing Act could apply. The cross-claim in the 2021 proceedings will therefore be dismissed.

284. I also do not consider it appropriate to make orders for the transfer of Ms Oliver’s interest in the Wedderburn property to her. I will make a declaration as to the nature and extent of her interest in the property, which will be binding both on the legal owner and anyone claiming an interest in the property. In circumstances where the property remains encumbered by various claims, including claims by the Crime Commission and by an unrelated mortgagee, I do not consider such an order to be appropriate.

Orders

285. The orders will be as follows:

286. In the 2021 proceedings:

1. Declare that the second defendant holds the Wedderburn property subject to a resulting trust in favour of the plaintiff as to 31.75% as an equitable tenant in common.

2. Otherwise dismiss the amended summons filed 2 February 2022.

3. Dismiss the cross-claim.

4. The first defendant to pay the plaintiff’s costs of the proceedings.

287. In the 2022 proceedings:

1. Proceedings dismissed with costs.

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Decision last updated: 04 April 2024