Papas v Co - [2018] NSWSC 1404

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Papas v Co [2018] NSWSC 1404
Hearing dates: 21 June 2018; 16 – 17 July 2018
Date of orders: 12 September 2018
Decision date: 12 September 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph [423]

Catchwords:
EQUITY — Trusts and trustees — Resulting trusts — Purchase money trust

LAND LAW — Torrens title — Exceptions to indefeasibility — Whether Fraud — Witness to Transferor’s signature not present when Transfer signed
SUCCESSION — FAMILY PROVISION — No estate or notional estate out of which an order can be made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Limitation Act 1935 (WA)
Limitation Act 1969 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Across Australia Finance Pty Ltd v Kalls [2008] NSWSC 783
Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Amos v Hogg [2018] NSWSC 1226
Anderson v McPherson (No 2) [2012] WASC 19; (2012) 8 ASTLR 321
Ashton v Pratt (No 2) [2012] NSWSC 3
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483
Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16
Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248; [1998] HCA 12
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Bouttell v Rapisarda [2014] NSWSC 1192
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Carey v Robson (No 2) [2009] NSWSC 1199
Cetojevic v Cetejovic [2006] NSWSC 431
Chan v Chan [2016] NSWCA 222
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28
Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1
Currie v Hamilton (1984) 1 NSWLR 687
Darmanin v Cowan [2010] NSWSC 1118
Davis v Williams (2003) 11 BPR 21,313; [2003] NSWCA 371
Day v Couch [2000] NSWSC 230
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17
Dyer v Dyer (1788) 2 Cox Eq Cas 92; 30 ER 42
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm)
Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233
Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202
Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83
Haller v Ayre [2005] 2 Qd R 410
Harkness v Harkness (No 2) [2012] NSWSC 35
Hickey v Powershift Tractors Pty Ltd (1998) 9 BPR 17,339
Hintze v Tsering [2018] NSWSC 1190
Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160
Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep)
Lucas v Lucas [2018] NSWSC 962
McEvoy v McEvoy [2012] NSWSC 1494
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
National Commercial Banking Corporation of Australia Ltd v Hedley (1984) 3 BPR 9477
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Ogilvie v Adams [1981] VR 1041
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403
Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; (2013) 304 ALR 651; [2013] SASCFC 57
Plunkett v Bull (1915) 19 CLR 544
Potter v Potter [2003] 3 NZLR 145
Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548
Re Hodgson (1885) 31 Ch D 177
Russo v Bendigo Bank Ltd [1999] 3 VR 376; [1999] VSCA 108
Ryan v Ryan [2012] NSWSC 636
Sammut v Kleemann [2012] NSWSC 1030
Sansom v Westpac Banking Corporation (1996) 7 BPR 14615
Shepherd v Doolan [2005] NSWSC 42
St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961
Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Vlahos Pty Ltd v Vlahos [2017] VSCA 166
Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101
Warner v Hung; Re Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Weeks v Hrubala [2008] NSWSC 162
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Yeshiva Properties No 1 Pty Limited v Marshall [2005] NSWCA 23
Ying v Song [2010] NSWSC 1500
Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51
Texts Cited: M J Leeming and J D Heydon, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)
N Skead and P Carruthers, “Fraud against the Registrar - An Unnecessary, Unhelpful and Perhaps, No Longer Relevant Complication in the Law on Fraud under the Torrens System” (2014) 40(3) Monash University Law Review 821
P Butt, Land Law (6th ed, 2010, Thomson Reuters)
W Swadling, “Explaining Resulting Trusts” (2008) 124 Law Quarterly Review 72
Category: Principal judgment
Parties: Stephanie Papas (Plaintiff)
Vinh Tran Co (first Defendant)
Jessie Rattanathip (second Defendant)
Representation:
Counsel:
Mr E White (Plaintiff)
Mr K Morrissey (Defendants)
Solicitors:
Newton Lawyers (Plaintiff)
Johnson & Co Lawyers (Defendants)

File Number(s): 2016/386267

Judgment

Introduction

HIS HONOUR: These proceedings were commenced by the Plaintiff, Stephanie Papas, by Summons filed in the Family Provision List on 23 December 2016. On the first return date of the Summons, which was 3 February 2017, this Court ordered that the matter proceed by pleadings.
On 9 February 2017, the Plaintiff filed a Statement of Claim in which she sought, in broad summary, the following relief:

a declaration that the Defendants hold the property, situated at and known as XXX Talbot Road, Guildford (“the Guildford property”) on trust for her;

a family provision order under Part 3.2 of the Succession Act2006 (NSW) (“the Act”) from the estate of her father, Van Chi Co (“the deceased”);

a claim for repayment of a debt of $30,000, said to be owed by the second Defendant, to her, together with interest thereon;

an order for costs.

The Defendants named in the Statement of Claim are Vinh Tran Co, the first Defendant, and Jessie Rattanathip, the second Defendant, each of whom is a sibling of the Plaintiff.
Without intending any disrespect, I shall, hereafter, adopt the preferred names used by the parties during the hearing, and for other family members, after introduction.
Van Chi Co (“the deceased”) died on 18 January 2016, at the age of 74. Each of the parties is the child of the deceased. Vinh was born in June 1973, in Vietnam, and is now aged 45 years; Jessie was born in September 1975, in Vietnam, and is now aged almost 43 years; and Stephanie was born in January 1984, in New Zealand, and is now aged 34 years. There was a fourth child of the deceased, Simon, who was born, in New Zealand, in May 1986. Simon had played no part in the proceedings prior to his death in March 2018.
The first Defendant filed a Defence on 16 March 2017 and the second Defendant filed a Defence on 17 March 2017. By the date of the hearing, reliance was placed on the fourth Amended Defence of the first Defendant and the Amended Defence of the second Defendant. In circumstances to which I shall come, the first Defendant also relied upon a Cross-Claim.
The Defendants denied that Stephanie was entitled to any relief and they sought the dismissal of the Statement of Claim in its entirety. The hearing occupied three full days of Court time.
It is fair to say that a generally adversarial approach to the litigation, despite the family relationship of the parties, was taken throughout the proceedings on both sides. Several opportunities were given to them to resolve their disputes, both before, and after, the hearing commenced, all of which proved unsuccessful. It would seem that one, or all, of them, adopted an intractable position. What has been written is not a criticism, but as will be read, the natural consequence has been that the costs that have been incurred are disproportionate to the value of the claims being made on each side. Furthermore, the resentment and animosity between the protagonists, on public display, will, unavoidably, be destructive of any continuation of what was, at one time, a close the familial relationship (at least between Stephanie and Vinh).
Whilst many matters were in dispute, in relation to the claim for the family provision order, it was not in dispute that:

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.

The Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. As a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased.

There is no scope for the operation of the intestacy rules (so that it is only necessary to refer hereafter to the Will of the deceased).

In the event that Jessie held the whole of the deceased’s interest in the Guildford property on trust for Vinh, there is no other estate out of which a family provision order may be made, with the result that Stephanie’s claim under the Act must be dismissed.

A family provision order may be made in relation to property that is not part of the deceased person’s estate, but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5). There is no property that may be designated as notional estate.

(Although not expressly referred to as property that could be designated as notional estate, there was no dispute that $6,617, comprising the member’s account balance of the deceased ($1,817) and an insured benefit ($4,800), was distributed to Vinh, by the Trustee of the HESTA Industry Super Fund, after the commencement of the proceedings: Ex SP10. Clearly, even if designated as notional estate, that amount would not provide the fund from which additional provision, as sought, could be made for Stephanie.)

Procedural Matters

On 8 February 2018, the matter was listed, for hearing, for two days commencing in the Family Provision Running List, on 21 June 2018. Upon receipt by the Court, shortly before the hearing, of three folders that were said to comprise the Court Book and the documents upon which the parties intended to rely, and having briefly considered the nature of the proceedings, the Court formed the view that the case could not be completed within two days. The response, from each counsel, when an email was sent enquiring whether the matter would be completed within the allotted time, was somewhat equivocal.
At the commencement of the hearing, after some debate, the legal representatives, with apparent reluctance, confirmed that the case might not conclude within the allotted time. (In the events that have happened, the hearing did, in fact, take three full days.)
The parties were then told that the Court would commence the hearing for one day, and then adjourn the hearing, part heard, to 16 and 17 July 2018. That is what has occurred.
The Court requires the assistance of legal practitioners, to provide accurate estimates of hearing duration. This is particularly important in the Family Provision Running List when, based upon estimates provided by legal practitioners, a number of matters are listed for hearing consecutively.
During the course of the opening addresses, counsel for the Defendants stated that “our case is that … the real owner of the [Guildford property] is Vinh Co [the first Defendant]. So, on one view, there is no [actual] estate”: T2.45 – T2.49.
A short time later, the following discussion took place between the Bench and counsel: T34 – T37. Although it is extensive, it is necessary to set it out as it assisted in the determination of the procedural problem that was raised:

“HIS HONOUR: Mr Morrissey, there's been no cross‑claim filed by Vinh...
MORRISSEY: No.
HIS HONOUR: That's a bit of a problem, isn't it? Because I thought you have told me that he says the property held is on trust for him, but he hasn't made that assertion.
MORRISSEY: No, he made that a deliberate decision. He wants to remain on good terms with his sister.
HIS HONOUR: Which sister?
MORRISSEY: With Jessie.
HIS HONOUR: So he is not propounding a trust claim? He's saying it might be relevant to the issue of consideration in a family provision matter but he is not propounding a resulting trust?
MORRISSEY: Yes, part of his defence is the resulting trust, but he is not propounding it by way of a cause of action, no, that's deliberate.
HIS HONOUR: Mr Morrissey, it won't work that way, because if he is not asserting a resulting trust then the property, as to 95%, forms part of the estate of the deceased. It may be that his contributions to the property purchase will be relevant to how the burden of any additional provision is borne, but you need to consider that aspect as well because if one leaves out the 5% share passing to the Plaintiff under the Will, you then have 55% passing to the first Defendant and 35% passing to the second Defendant.
Is it going to be asserted, for example, that the first Defendant's share of the estate does not bear the burden of any provision; or is it going to be that some other process is going to be followed for bearing the burden of provision?
MORRISSEY: Any burden for provision would come from the second defendant because she has not put forward her personal financial circumstances.
HIS HONOUR: No, but is that something that she consents to?
MORRISSEY: She decided not to put forward her personal‑‑
HIS HONOUR: No, has she consented to bearing the burden of any additional provision that is made for the Plaintiff out of the estate of the deceased?
MORRISSEY: I'll take some instructions.
…
HIS HONOUR: A conscious decision has been made by the first Defendant to not assert a resulting trust, but to rely on his contributions to the purchase price of the Guildford property.
MORRISSEY: And the matters pleaded in his fourth amended defence.
HIS HONOUR: And other matters in defence of the claims made by the plaintiff, is that right?
MORRISSEY: That's right, your Honour.
HIS HONOUR: Is that as you understood it, Mr White?
WHITE: Yes.
…
MORRISSEY: Your Honour, as your Honour knows, still has under Uniform Civil Procedure, is it, s 26 power to make orders arising from the facts.
HIS HONOUR: Yes, but I can't make an order that has not been sought. That's why I need to be absolutely sure about what is going on, Mr Morrissey, because what you've now told me seems to me, I may have misunderstood you, but what you are telling me now is slightly inconsistent with what you told me previously, which caused me to note that there was a trust claim being made by the first Defendant.
MORRISSEY: Paragraph 32 of the defence he says, ‘In the events which had occurred the first defendant...on or about 22 April.’ The normal way in which that would be done is to put on a cross‑claim. I've been down this road before some time ago with the Defendants. Perhaps I could have a moment to discuss it with them again?
HIS HONOUR: Yes. You see the point, there may not be $900,000 in the estate, there may be nothing in the estate.
MORRISSEY: In fact that's our case. That's right.
HIS HONOUR: That has to be asserted, Mr Morrissey, by way of a cross‑claim. Could you get some instructions so that I understand it?
…
HIS HONOUR: Mr Morrissey, I'm not being critical, but in fairness to Mr White if the estate is worth $900,000 that's one thing and presumably that's what he is basing his advice on, if the estate is actually worth $450,000 or less or nothing, then he will have to give consideration as to what advice he gives the Plaintiff.
…
MORRISSEY: Of course. With no disrespect to the Plaintiff and her advisors, the case has been run from the first affidavit sworn by Vinh on the basis that he paid for and owned Guildford. It's not new. It's carefully detailed in his May affidavit with supporting evidence.
HIS HONOUR: Mr Morrissey, the events that occurred this morning may save the issue because if that's the position ‑ Mr White, that seems to be the position or not?
WHITE: Your Honour, we don't dispute the first Defendant made contributions. We didn't see that as a resulting trust, that certainly has never been pleaded against us. We do take issue with some of the contributions and we do take issue with the timing of the contributions.”

The matter of a Cross-Claim was raised again, following the long adjournment, when counsel for the Defendants stated, at T52.17 – T52.30:

“MORRISSEY: I haven't had a chance to raise it with my friend but I'm instructed to indicate that the first Defendant wishes to file a cross-claim. If the first Defendant made a conscientious decision before today on that, the solicitors have written instructions on that, but both Defendants having heard what your Honour had to say this morning, over lunchtime they've instructed me that he wants to make a cross claim.
I can tell you that it can be filed by Monday. And the second Defendant has indicated she will consent to the orders subject to some arrangement as to costs, but will consent to the orders.
HIS HONOUR: With the result that she receives no part.
MORRISSEY: That's right. That's right.”

Again, at T94.06, counsel for the Defendants repeated that the proposed Cross-Claim would be served “by Monday” (which was 25 June 2018).
In fact, a copy of the proposed Cross-Claim was not provided to the legal representatives of Stephanie until 11 July 2018, that is, 2 working days before the adjourned date for hearing.
The Plaintiff did not consent to the proposed Cross-Claim being filed.
Section 22(1) of the Civil Procedure Act 2005 (NSW), the chapeau to which is the “Defendant’s right to cross-claim”, relevantly, provides for the bringing of a cross-claim:

"22 Defendant’s right to cross-claim
(1) Subject to subsection (2), the court may grant to the defendant in any proceedings (the first proceedings) such relief against any person (whether or not a plaintiff in the proceedings) as the court might grant against that person in separate proceedings commenced by the defendant for that purpose.”

(Sub-section (2), which relates to relief sought against a person who is not a plaintiff in the first proceedings, does not apply.)
The procedural rules relating to cross-claims are contained in the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), Part 9. Other procedural rules, which are relevant to the question before the Court, are contained in UCPR, Parts 1 and 14.
UCPR rule 9.1 provides:

"9.1 Making of cross-claim
(1) A party (the cross-claimant), may make a cross-claim:
(a) in proceedings commenced by statement of claim, within the time limited for the party to file a defence; or
(b) in proceedings commenced by summons, before the return day specified in the summons,

or within such further time as the court may allow."

UCPR, rule 9.1(3), provides that subject to Part 9, the UCPR applies to a cross-claim in the same way that the rules apply to a statement of claim. A defence to a statement of claim is to be filed within 28 days after service on the Defendant of the statement of claim, or such other time as the Court directs: UCPR, rule 14.3.
UCPR, rule 1.12 provides:

"1.12 Extension and abridgment of time
(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires."

As no Cross-Claim had been made in accordance with UCPR rule 9.1, Vinh required an order extending the time for the making of the Cross-Claim. It was for him, as the party seeking the extension of time, to satisfy the Court that it was appropriate to make the order.
In determining whether to exercise its power to extend the time for the making of the Cross-Claim, the Court must have regard to the mandatory considerations identified in Part 6 of the Civil Procedure Act. In particular, the Court was required, in accordance with s 58 of the Act, to seek to act in accordance with the dictates of justice. For the purpose of deciding what the “dictates of justice” are in a particular case, the Court must have regard to sections 56 and 57 of the Civil Procedure Act and may have regard to the matters in s 58(2)(b) and give effect to the overriding purpose of the Act referred to in s 56(1), which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440, Price J (as his Honour then was), at [14].
As the discussion between Bench and counsel at the commencement of the proceedings demonstrates, the explanation for the Cross-Claim not having been brought at an earlier time was that Vinh made a conscious decision to not make a Cross-Claim because of the good relationship that he had with Jessie. It was not a matter of inadvertence, or inattention, but rather a deliberate choice that he made.
Why the Cross-Claim was sought to be made subsequently, was not the subject of evidence brought on the application, although counsel for Vinh stated from the Bar table, without objection, that Jessie had conceded Vinh’s claim, and that there was no likelihood of a disagreement between them and that there would be no effect on their relationship if the claim were made: T97.36 – T98.09.
In relation to the potential conflict of interest that would arise as between the Defendants, as Jessie is the sole executrix named in the Will of the deceased, she was named as the first Cross-Defendant in the proposed Cross-Claim. As counsel stated that she would not oppose the grant of relief sought by Vinh it appeared that there was no need for her to be separately represented.
In the course of argument, counsel for the Plaintiff was asked to elaborate on the reasons why Stephanie did not consent to the filing of the proposed Cross-Claim. The primary bases stated were its late service and Vinh’s express disavowal to rely upon a Cross-Claim stated earlier in the proceedings.
Importantly, it was not suggested by counsel for Stephanie that granting leave to file the Cross-Claim would require her to serve further evidence, or that it would jeopardise the hearing being concluded within the time allocated. There was no submission made that there would be any disruption involved in the orderly continuation of the hearing.
Counsel for Stephanie raised the possibility that documents would need to be tendered, but doing so would not lengthen the proceedings. He required confirmation, from counsel for the Defendants, which was given, that no additional evidence from Vinh, in support of the proposed Cross-Claim, would be necessary.
Subject to one matter to which I shall next refer, it is clear that the issues raised in Stephanie's proceedings, and by Vinh, in the proposed Cross-Claim, are part of the broad dispute between the parties that, as will be read, had been boiling since, at least, early 2011. Stephanie's counsel did not submit to the contrary. To the extent that it is relevant, he did not suggest that the facts alleged were not related to, or connected with, the subject matter of Stephanie's claims for relief.
There is little doubt that the Cross-Claim could well have been brought considerably earlier. It is to be noted, in this regard, that these proceedings had been before the Court on 10 occasions before, on 8 February 2018, it was set down for hearing. There was then a pre-trial directions hearing on 21 May 2018. At the time the proposed Cross-Claim was provided to the legal representatives of Stephanie, the proceedings were part heard.
Having considered the form of the proposed Cross-Claim, it raised, for the most part, matters that had been the subject of detailed affidavit evidence that had been read, documentation that formed part of the evidence that had been tendered, and by the time it was dealt with on 16 July 2018, also matters upon which the Plaintiff had already been cross-examined.
The usual approach taken by the Court, so far as is practicable, is to determine all aspects of the controversy in the same suit. This approach, sometimes, is “expressed in the obscure maxim ‘Equity delights to do justice’, which alludes to the Court’s wish to resolve the whole controversy and give effect to all equities of all persons involved in the controversy. The same policy is expressed in s 60 and in s 63 of the Supreme Court Act 1970”: Yeshiva Properties No 1 Pty Limited v Marshall [2005] NSWCA 23, Bryson JA, at [77]; Across Australia Finance Pty Ltd v Kalls [2008] NSWSC 783, per Bryson AJ, at [26].
It is also necessary to remember UCPR, rule 36.1, which states:

“36.1 General relief
At any stage of proceedings, the court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion.”

As will be read, there was material before the Court that established that there may be substance, at least to part, of the proposed Cross-Claim, namely the financial contributions made by Vinh to the purchase of the Guildford property. In the circumstances, a viable Cross-Claim should be able to be brought, albeit that it has been brought as late as it had.
One further matter, favouring the extension of the time to file the proposed Cross-Claim, was the Court’s general reluctance to preclude a party from litigating a cause of action that he wishes to litigate, especially in the circumstance where counsel for the other party has not been able to articulate any prejudice that cannot be remedied by costs. A just resolution of proceedings remains the paramount purpose of s 56 of the Civil Procedure Act. It is, principally, because the Plaintiff has not been prejudiced that leave to file a Cross-Claim has been granted. In other circumstances, the application could well have disrupted the court proceedings and been procedurally unfair to the Plaintiff.
Yet, there was one aspect of the proposed Cross-Claim that was not the subject of evidence, and that was what is alleged in Paragraph 14, namely that:

“In or about February 2009, Vinh and [the deceased] came to an agreement about the transfer of the Guildford property.”

It was said that one term of which agreement was that the deceased would “leave his interest in the property on his death to Vinh”. There were also some particulars of the alleged agreement that had not been raised: for example, particulars (v), (vi), and (vii), each of which I shall not repeat.
The agreement alleged to have been made between Vinh and the deceased is also relevant to Jessie, since, she would have needed to obtain advice about the merits of the allegation and whether she would be able to make a claim for a family provision order out of the estate of the deceased if that claim were advanced.
This was not a matter raised in the fourth Amended Defence, or so it would appear, otherwise, by Vinh. In all the circumstances, I concluded that the claim for relief that depended on Paragraph 14 of the proposed Cross-Claim (Paragraphs 2 and 3 of the relief claimed in the proposed Cross-Claim), relating to an alleged agreement between him and the deceased, should not be permitted to be advanced at the late stage of the proceedings.
At the conclusion of the argument, I indicated that subject to seeing a proposed form of Cross-Claim that did not include the allegation about an agreement between Vinh and the deceased, and without the relief sought on the basis of such an agreement, Vinh would be permitted to file the Cross-Claim out of time.
However, I permitted Vinh to include, in the proposed Cross-Claim, the amounts alleged to have been contributed by him to the Guildford property, both at the time of its purchase in 2005, and then, in early 2009, when title to the Guildford property was transferred from Stephanie to the deceased and Vinh in order to give meaning to the resulting trust claim.
In this way, the Court has to consider whether, if proved, the allegations made, give rise to any form of equitable relief to which Vinh would be entitled, such as a resulting trust.
On the morning of the third day of the hearing, a form of Cross-Claim was produced. Having considered it, and as there were no further submissions, by counsel for Stephanie, against the filing of the form of the Cross-Claim, the Court granted leave to Vinh to file and serve the Cross-Claim. This was done during the course of the third day of the hearing.
Of course, Stephanie did not have any opportunity to file a Defence to the Cross-Claim. I have treated the allegations made in the Cross-Claim as either not admitted, or denied, by Stephanie, bearing in mind the evidence already read, and also bearing in mind the cross-examination of Vinh, which was in progress when the final version of the Cross-Claim was produced.
Stephanie’s counsel having raised the issue previously, the first Defendant was reminded by the Court that there were likely to be costs consequences by the decision having been taken as late as it was to serving the proposed Cross-Claim and obtaining leave to file the Cross-Claim. (In light of my conclusions and the costs order that was agreed in the event of those conclusions, the costs thrown away do not arise.)
Since Jessie did not oppose the filing of the Cross-Claim, I have treated her response to it as a submitting one.

Some General Matters

The Court is required to determine, on the balance of probabilities, taking into account the matters enumerated in s 140(2) of the Evidence Act 1995 (NSW), which version of events that are in contest is the more likely and plausible. Those matters are (a) the nature of the cause of action or defence, (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
It is also necessary to bear in mind the careful scrutiny to which evidence about conversations with, or between, one, or other, of the parties, and the deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544, per Isaacs J, at 548-549. This is because he is unavailable, at the hearing, to admit, or directly deny, specific allegations.
McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].
It is also necessary to remember the oft-cited dictum of McLelland CJ in Eq from Watson v Foxman (1995) 49 NSWLR 315 at 319:

“Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

This dictum is relevant in the circumstances of this case when one also has the added sub-stratum of a cordial familial relationship that existed between Stephanie and Vinh, particularly between 2005 and 2009.
Also, a Court, in cases involving events, some of which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, at [157] (Martin J); Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) at [15] – [22].
More recently, the Court of Appeal in Queensland wrote, in Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, at [50]-[51]:

“Most experienced judges subscribe to the view expressed by Goff LJ in Armagas Ltd v Mundogas SA (The “Ocean Frost”) that it is essential ‘when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities’. Goff LJ was referring to cases of fraud, but the statement is of general application. As Goff LJ observed in the same passage:
‘It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.’

This is not a recent revelation. About 60 years earlier, for example, Atkin LJ, after observing that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’, confirmed that trial judges were encouraged ‘to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events’. The primary judge’s failure to consider and make findings about many aspects of the evidence, including evidence relevant to causation, deprived his Honour of those important tools for judging the credibility and reliability of the contentious oral evidence.” (Citations omitted)

I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, at 431:

“’Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

The circumstances of this case, also make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122-123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15, at [15]), appropriate to remember:

“[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.”

In this case, because of the view I take of Stephanie’s evidence, and also, in one particular respect, of Vinh’s evidence, I shall place much more reliance on contemporaneous documents, as, in my view, those documents reveal a much more probable account of the events that had occurred and assists in assessing the reliability of the evidence given by Stephanie and by Vinh.
Also, because it may be relevant, particularly to both Stephanie’s and Vinh’s evidence, what O’Loughlin J had written in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1, at [118] and [121] is relevant:

“Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions.

…
A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected.”

In other words, a lie does not necessarily prove the opposite of the lie even though, depending on the subject matter and its significance in the case, it may indicate a consciousness on the part of the witness that the truth would not have assisted her or his case, or may amount to evidence that is corroborative of other evidence: Tobin v Ezekiel (2012) 83 NSWLR 757 at 775; [2012] NSWCA 285, at [60].
What Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48, at [119]-[120], must be remembered:

“… Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties’ morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker’s ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.
Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law.” (Footnotes omitted)

Also, as was written by Emmett J (as his Honour then was) in Warner v Hung; Re Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48]:

“... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2).”

In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, also expressed the view, at [44] – [52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426, at [126].
In reaching my conclusions, I have considered the inherent probabilities, aided by contemporaneous documents that are not disputed, circumstantial evidence tending to support one account as opposed to the other, and the overall impression of the witnesses.
As will be read, there was a flurry of communications between lawyers for Stephanie and for Vinh in 2011, following which Stephanie did nothing to assert a claim until a caveat was lodged in 2016. She asserted a lack of financial capacity to do so.
Recently, in Hintze v Tsering [2018] NSWSC 1190, Sackar J dealt with the issue of remaining silent when speech could have been expected, or failing to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected. In this case, the allegations of not having signed the Transfer, and of not being aware of the transfer of the Guildford property out of her name, are matters of some significance.
I respectfully adopt what his Honour wrote at [58] – [61]:

“It is well established that remaining silent when speech could have been expected, or failing to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected, may amount to an admission, and is at least relevant evidence.
A failure to complain regarding breach after becoming aware of the true facts may enable the court to infer that the conduct was not relied on.
A failure to complain may adversely affect the credibility of a witness.
A failure to complain may also be relevant for the element of reliance in estoppel, or the adoption of the relevant assumption.” (Citations omitted)

In relation to the arrangements or agreements between family members, I have remembered what was written by Brereton J (as his Honour then was) in Ashton v Pratt (No 2) [2012] NSWSC 3 at [29] – [36].
In relation to what is said to have been agreed between Stephanie and Vinh, regarding the payment of $30,000, in respect of the Guildford property, and the repayment of the loan of $30,000 and $5,000 of interest, whilst there is a rebuttable presumption of fact that arrangements, or agreements, made in a family, are not intended to have legal force (see, Darmanin v Cowan [2010] NSWSC 1118, at [206]), as will be read, I am satisfied that at the time of making the agreement, in each case, the parties did regard their arrangements in terms of legal consequences.

Background Facts

Next, I set out a chronology of the background facts that are not substantially in issue, or which I am satisfied, based upon the evidence, is established on the balance of probabilities.
The deceased was born in Haiphong, Vietnam, in April 1941. He was of Chinese ethnicity.
On a date not disclosed in the evidence, he formed a relationship with Thuan Thi Tran (“Tran”), who was also born in Haiphong, Vietnam. She was born in February 1952. The four children of their relationship have been referred to above.
(There is a dispute about whether the deceased and Tran were married, Stephanie asserting that she understood that they were, whilst Jessie says that they were not. Nothing turns on this dispute of fact, as all parties agreed that Tran was an eligible person in relation to Stephanie’s claim for a family provision order.)
In 1979, the deceased, Vinh, and Jessie, left Vietnam and moved, as refugees, to Hong Kong. It was necessary for the deceased to sell all of the family’s possessions and to obtain a loan to purchase, and reserve, four seats on the boat. (Subsequently, Tran refused to, or did not, leave Vietnam. Again, the dispute about this fact is irrelevant to the determination of these proceedings.)
They were granted refugee status, in about 1980, in New Zealand. In about 1982, Tran joined the rest of the family in New Zealand. There, as stated previously, two of the children were born. In about 1987, the whole family moved to Australia.
Initially, after moving to Sydney, the family lived in Marrickville, where they lived in rented accommodation. In about 1989 or 1990, they moved to other rented accommodation in Punchbowl, and then, in 1993, to Croydon Park, where they also lived in rented accommodation.
The deceased and Tran were said to be not well educated. The deceased’s English was poor, but he spoke the Cantonese, Mandarin and Vietnamese languages.
The deceased was employed, casually, as a Community Volunteer for the Ashfield Community Centre working one day a fortnight providing assistance to elderly people in the Chinese community on outings, or by assisting them with medical appointments or shopping trips.
Stephanie stated that, during her childhood and school years, she did not remember the deceased working in paid employment on a regular basis. She did recall his volunteer work.
Jessie gave oral evidence that the deceased suffered from a number of medical conditions which resulted in his inability to work more than casually: T215.45 – T215.50. (She was not cross-examined on this evidence.)
How the deceased came to be a member of the HESTA Superannuation Fund was not the subject of any evidence. In any event, subject to what I shall say later regarding Stephanie’s evidence on this topic, which evidence I do not accept, it seemed to have been accepted, by all the parties, that, for almost all of his time in Sydney, he, and whilst they were together, Tran, was each in receipt of social security benefits.
There is evidence that the deceased received, in the financial year ending 30 June 2005, by way of disability support pension, the amount of $10,607.88; that he received, in the financial year ending 30 June 2006, by way of disability support pension, the amount of $8,112, and by way of age pension, the amount of $2,533; that he received, in the financial year ending 30 June 2007, by way of age pension, the amount of $11,404; that he received, in the financial year ending 30 June 2008, by way of age pension, the amount of $11,397; that, he received, in the financial year ending 30 June 2009, by way of age pension, the amount of $12,803; that he received, in the financial year ending 30 June 2010, by way of age pension, the amount of $16,771; that he received, in the financial year ending 30 June 2011, by way of age pension, the amount of $17,177; that he received, in the financial year ending 30 June 2012, by way of age pension, the amount of $18,381; that he received, in the financial year ending 30 June 2013, by way of age pension, the amount of $19,095; that he received, in the financial year ending 30 June 2014,by way of age pension, the amount of $20,079; that he received, in the financial year ending 30 June 2015, by way of age pension, the amount of $20,733; and that he received, in the financial year ending 30 June 2016, by way of age pension, the amount of $12,931.
Tran, it would seem, was not employed and attended to the household duties. Stephanie said that Tran “would work, from time to time, for friends – the work was casual and irregular and I believe that the pay was minimal”.
Jessie gave poignant evidence, stating that:

“[M]oney was tight and on occasion we would receive assistance from the Smith family for clothing …
Although we were not financially well off, we had all the necessities through [the deceased’s] careful budgeting.
...
[The deceased] gave us spending money to cover reasonable expenses such as movie tickets, meals and sometimes a little extra for miscellaneous.”

In 1999, after an argument with the deceased, Tran left the family home. The family members did not know to where she went, or where she remained, for about a year. Then, she and the deceased met, unexpectedly, and Tran agreed to return to the Croydon home.
When she returned, the deceased moved in, for a short time, with Vinh, who was living in a property at Bankstown, which he and Jessie had purchased together. A short time later, the deceased moved back to the rented accommodation at Croydon.
Stephanie commenced working part-time in 1998, at the age of 14 years 9 months at a fish and chip shop. She worked, on Thursday nights, for about 4 hours, and sometimes on the weekend.
Stephanie left school, whilst in Year 11, in about 2000, and then began working, full-time, as a cashier at Woolworths, and then as a shop assistant. She moved away from the home of her parents in early 2004 and lived in rented accommodation with a man called Gene: T66.11 – T67.04.
Stephanie moved back to live with her parents, at Croydon in 2005: T67.50 – T68.01.
In 2008, Stephanie began a relationship with a Greek Australian, Anthony Papas. She moved to Brisbane, meeting him there, in late February 2009. They were married, in Sydney, in 2011: T39.42 – T39.49.
Tran is still alive, but has played no part in these proceedings. Indeed, Jessie wrote in an affidavit sworn on 22 May 2017, and confirmed that she has not had any contact with Tran (or with Stephanie) “for over 10 years”, including, in respect of Stephanie, “in the last couple of years that she lived with [her] father at the Guildford house”: T212.28 – T212.38.
Stephanie, who appears to have maintained contact with Tran, indicated by her counsel, that “Tran resides in Sydney; that she is aware of these proceedings but does not wish to be involved or make a claim against [the deceased’s] estate; [and] [s]he does not wish to disclose her address to the Defendants”: T106.31 – T106.46.
The deceased left a duly executed Will that he made on 15 December 2015. In that Will, he appointed Jessie to be the sole executor of his Will and sole trustee of his estate. This Court granted Probate of that Will to Jessie on 8 September 2016.
By Clause 5 of the Will, the deceased left the whole of his estate on trust to sell, call in, and convert it into money; to pay all debts, funeral and testamentary expenses, including all duties and taxes payable in respect of the estate; and, then, gave the residue, as to 55 per cent, to Vinh; 35 per cent to Jessie; 5 per cent to Stephanie and 5 per cent to Simon.
Since Simon died more than 30 days after the deceased, he attained a vested interest in the deceased’s estate: Clause 4 of the Will. The parties agreed that in the event an order for provision is made for Stephanie, that Simon’s share of the residue should not bear any part of the burden of that provision: T31.38 – T31.44. (That concession was subject to the determination of the Cross-Claim filed by Vinh: T221; T255.45 – T256.04.)
In the Inventory of Property attached to, and placed inside, the Probate document, there was no property said to be solely owned by the deceased at the date of his death. However, the Guildford property was disclosed as being owned by the deceased (as to 95 per cent) and Vinh (as to 5 per cent) as tenants in common.
The value of the Guildford property, as disclosed in the Inventory of Property, was said to be $850,000. Accordingly, as disclosed on title, the deceased’s percentage share would have had a gross value of $807,500 (without any costs and disbursements of sale).
At the hearing, the parties, ultimately, agreed that, subject to the competing claims as to beneficial ownership, what was said to be the deceased’s 95 per cent share of the Guildford property was the only asset of the deceased’s actual estate and that the total value of the Guildford property, at the date of hearing, should be taken to be $940,000.
It was also agreed that the estimated costs and expenses of sale of the Guildford property were $27,500, with the result that the percentage share of the deceased in the Guildford property would have a value of $866,875 (being 95 per cent of $912,500): T103.23 – T104.01.
From that amount, the debts of the deceased’s estate ($29,521) would also have to be paid, leaving an estate with an estimated value of $837,354, before the costs of the proceedings, if an order for costs is made, are deducted: T104.03 – T104.12.
As set out above, subject to the Cross-Claim, the parties also agreed that Simon’s share (5 per cent) of the estate, before costs are deducted, should be paid to his estate. That share, if the deceased’s interest in the Guildford property remained as part of his actual estate, equates to $41,867.
Taking all these deductions into account, the net value of the deceased’s estate, if any, without any costs of the proceedings being deducted, would be $795,487.
The parties agreed that if both trust claims failed, and if a family provision order were made, it should be by way of an increased percentage of the residue of the estate (bearing in mind she is entitled to 5 per cent of residue under the Will of the deceased): T19.10 – T19.22; T31.
I am satisfied, should it be necessary, that this is an appropriate way to proceed as there is a dispute about the true market value of the Guildford property.
(In coming to the conclusion as to the method of calculating any family provision order, if any is to be made in favour of the Plaintiff, I have remembered that McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192, at [96], raised the concern that “to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs”.
Whilst this is undoubtedly true, it seems to me that in some cases, for example where the estate has a value that cannot be precisely determined because of the volatility of the real estate market, to make a lump sum order will not be the most appropriate way of determining what is “proper” in all the circumstances of the case. In this way, both the Plaintiff and the beneficiaries would benefit if the Guildford property were sold for a price greater than had been agreed for the purposes of the hearing, and each would be detrimentally affected if it sold for less than the agreed figure. There would also be certainty of the price, the costs and the expenses upon which calculations could be made. It cannot be forgotten that the actual value of the estate is a relevant consideration in determining the adequacy and propriety of the provision. Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes, "in any other manner the Court thinks fit".)
The only eligible persons are the three children of the deceased and Tran, who is described by Jessie as the “former de facto partner of the deceased”. Only the Plaintiff has made a claim for a family provision order.
There was no evidence that Simon, or Tran had been served with a notice of the Plaintiff’s application and of the Court's power to disregard his, or her, interests, in the manner and form prescribed by the regulations or rules of Court. In regard to Simon, that omission has not caused a problem as he has died and there is an agreement between the parties that his share of residue will not bear part, or all, of the provision, if any, made for Stephanie.

In view of the statement made by counsel for Stephanie, which was treated as an agreed fact, in all the circumstances, the Court will disregard the interests of Tran, as a person by, or in respect of whom, an application for a family provision order may be made but who has not made an application as service of the prescribed form of notice upon her is unnecessary.
Jessie, whose affidavits were read, and who was cross-examined, did not disclose any information about her financial resources and needs in her affidavits, but did provide evidence regarding why she had a legitimate claim on the bounty of the deceased.
As I have stated in other cases, a beneficiary is entitled to elect to remain silent about her financial resources and needs and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and his preferable disposition to her as a beneficiary regardless of her financial resources or needs. The Act specifically provides that her, interests, as a beneficiary, cannot be disregarded, even though she has not made a claim: s 61(1). She is entitled to rely, as a chosen object of the deceased’s testamentary bounty, upon the terms of the Will.
Recently, in Amos v Hogg [2018] NSWSC 1226, at [33] - [42], I summarised the relevant principles, and, also, I repeated what I had written in Sammut v Kleemann [2012] NSWSC 1030, at [137] - [140], on this topic. In summary, the Court is entitled to infer that the beneficiary has adequate resources upon which to live and that she does not wish to advance a competing financial claim upon the bounty of the deceased. However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind.
Thus, even if the Court may infer that the beneficiary has no need for provision from the estate of the deceased, and, that, on a comparative basis, she is better off than the Plaintiff, her silence does not mean that her competing claim should not be evaluated. What is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

Costs and Disbursements of the Proceedings

Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her and his costs, calculated on the indemnity basis, should be paid out of the estate.
As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

However, as I have repeated many times, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
In an affidavit affirmed on 26 June 2018, by Mr S J G Nicolau, the Plaintiff’s costs and disbursements, including the costs of mediation, to the conclusion of a 2 day hearing, calculated on the ordinary basis, were estimated to be “approximately $100,000”. Mr Nicolau also estimated that “approximately 40% of the costs have been incurred devoted to matters arising out of a claim for family provision and 60% of the costs have been devoted to the other issues raised in the proceedings”.
(As the hearing, in fact, took 3 days, and Mr Nicolau’s affidavit was affirmed after the first day of the hearing, presumably he was intending to provide an estimate of the Plaintiff’s costs to the conclusion of that 3 day hearing. Regardless, on the second day of the hearing, counsel for the Plaintiff and for the Defendants each accepted that the costs of the Plaintiff were estimated to be $100,000: T104.36 – T104.47.)
Mr Nicolau gave no evidence that his firm had entered into a conditional costs agreement with Stephanie. Indeed, no hint of such an agreement in relation to her costs was given at any time, until Stephanie, herself gave evidence of her belief that she would not have to pay costs to her solicitors if she was unsuccessful: T121.10 – T121.38.
On the third day of the hearing, having made enquiries of his instructing solicitor, counsel for Stephanie informed the Court that there was, in fact, “no conditional costs agreement between the Plaintiff and her legal representatives. The understanding between them is that, in the event she has to pay her own costs, she will not be sued to recover those costs by her own legal representatives”: T199.00 – T199.05.
In an affidavit sworn on 14 June 2018, by Ms N Audisho, the Defendants’ costs and disbursements, including the costs of mediation, to the conclusion of a 2 day hearing, calculated on the indemnity basis, were estimated to be $133,180.
No affidavit was relied upon updating the costs and disbursements as the hearing took 3 days. However, the Court was informed, without objection, by counsel for the Defendants, that the estimated costs and disbursements for the extra day of hearing would be $6,820, making the total estimated costs and disbursements $140,000
Not all of the Defendants’ costs and disbursements, would, necessarily, be payable out of the deceased’s estate, as only Jessie, as the executrix to whom Probate has been granted, is the party representing the estate of the deceased. Furthermore, Vinh, by his Cross-Claim is making a claim against the deceased’s estate and one that seeks to protect his own interests.
Whilst the estimates that have been given provide some basis for calculating the total of the legal costs and disbursements that may have to be paid out of the deceased’s estate before any distribution of that estate can take place, it is to be remembered that they are estimates only.
In this case, the parties’ legal representatives made submissions on the question of costs as neither party had served an Offer of Compromise or a Calderbank offer. I shall, therefore, deal with the issue of costs later in these reasons.
The parties also agreed, subject to the competing trust claims, that, in the event the costs estimates prove accurate, and if an order is made that the costs are to be paid out of the deceased’s estate, and if the deceased’s interest in the Guildford property does form part of his estate, the value of the estate, out of which an order could be made, would be about $555,487: T105.14 – T105.33.
Accordingly, if the trust claims fail, this is an estate of modest value, particularly if the costs estimates prove accurate and an order for the costs to come out of the estate is made.
By the conclusion of the submissions, it became clear that Stephanie’s case would be determined by reference to the claims made in relation to the beneficial ownership of the Guildford property and upon the amount, if any, to be repaid to Stephanie by reason of her agreement with Vinh for reimbursement of amounts paid towards the mortgage debt secured on the Guildford property ($30,000) and the loan made to her in August 2009 ($30,000) and interest ($5,000) on that loan.
It was accepted that if Vinh was successful on his claim for a resulting trust, there would be no estate out of which an order for additional provision could be made for Stephanie because the beneficial ownership of the Guildford property would be held for him. It was not suggested that the Guildford property, or any part of it, if held on trust for Vinh, could be designated as notional estate of the deceased, or that there was any other property, of sufficient value, that could be so designated, to enable an order for additional provision to be made in her favour.
Vinh and Jessie also agreed that in the event that Stephanie failed completely, neither would seek an order for costs to be paid by her: T255.12 – T255.20.

The Pleadings

Leaving aside the claim for a family provision order, Stephanie’s claim that the Guildford property was held in trust for her was based upon the registration of the Transfer in 2009 “by fraudulent means”. It was put, in Stephanie’s opening written submissions, that:

“22. The Deceased and the first defendant forged the plaintiff’s signature on the subject Transfer which was subsequently ‘witnessed’ by a person the plaintiff had not seen since about 1995. It is understood that the defendants concede that the ‘witness’ to the Transfer was not present at the time the plaintiff allegedly signed the Transfer.
23. The circumstances under which the Transfer was registered amounts to ‘fraud’ as a recognised exception to s42 of the Real Property Act 1900 and the interests of a bona fide purchaser or mortgagee without notice are not affected.”

Stephanie also pleaded that:

She had not received any consideration for the Transfer of the Guildford property to the deceased and Vinh;

She had not agreed to transfer her interest in the Guildford property to the deceased and Vinh;

She had not authorised registration of the Transfer or any transfer by which she was deprived of her interest in the Guildford property;

In the circumstances, the deceased and Vinh held, and hold, their respective interests in the Guildford property on trust for her.

These, and other allegations relating to the financial contributions by Stephanie to the purchase of the Guildford property, were the subject of evidence by Stephanie. I shall deal with these allegations as it is necessary to determine whether she has established the allegations and also in order to calculate the contributions to the purchase price of the Guildford property made by the parties as part of the determination of the Cross-Claim.
No submissions were made concerning the allegation in the Statement of Claim, that between 1998 and 2005, “the deceased represented and promised to the Plaintiff that if the Plaintiff gave money she earned to the deceased, the deceased would buy real estate for the Plaintiff”, and that “[o]n many occasions from the time the Plaintiff first obtained casual employment in about 1998 until about 2005 and in reliance on the promise made by the deceased, the Plaintiff gave money she earned to the deceased”.
Presumably, this was because there was simply no evidence of any such promise made by the deceased, with the result that such a claim, if persisted with, undoubtedly, would have failed. That aspect of Stephanie’s claim could not succeed and it may be ignored.
In defence of Stephanie’s trust claim, and in support of his trust claim, Vinh relied upon the payments that he said he had made, and which Stephanie did not admit, to the purchase of the Guildford property at the time of its initial purchase in 2005, his payment of the amount due under a mortgage secured on title to the Guildford property, which mortgage debt Stephanie would have been obliged to repay, and payments made by him after the transfer of the Guildford property into the name of the deceased and himself in 2009.
Vinh also asserted that Stephanie was estopped, by her conduct, from denying that he and the deceased held the legal and beneficial interest in the Guildford property after its transfer to them. He relied upon “laches and delay”.
In relation to the loan of $30,000, Vinh did not dispute that Stephanie had lent him $30,000 in about August 2009. He also admitted that he had agreed to pay $5,000 by way of interest to her. He did not admit that the amount borrowed was to be repaid by the end of the 2009 calendar year or that the loan was to attract interest “at the rate [Stephanie] would have received if [the amount] had remained on deposit with Rabobank Australia Limited in a ‘Rabodirect High Interest Savings Account’”.
By way of defence to Stephanie’s claims for the loan and interest amounts, Vinh also asserted that the claim for repayment of the loan was not maintainable as the claim was brought more than 6 years from which the loan was made. In addition, he pleaded “laches and delay”. He simply denied that in breach of the loan agreement, he “had refused, failed or neglected to make the payments required at the end of the 2009 calendar year or at all”.
(It should be noted that the agreement for the loan of $30,000 and the $5,000 interest payable in respect thereof, made in about August 2009, was different from the amount of $30,000 that Vinh had agreed to pay to Stephanie in about April 2009, as reimbursement for part of the payments she had made towards principal and interest between the date of the purchase of the Guildford property and the date of its transfer out of her name into the name of the deceased and himself, after taking into account the value of the accommodation that she had received.)
Jessie’s amended Defence to the Statement of Claim broadly echoed Vinh’s defence.

The Purchase of the Guildford Property

The following matters should be regarded as the factual findings of the Court. Some are not in dispute between the parties, but to the extent that any are, I have carefully considered all of the evidence, particularly the documentary evidence, in stating what follows, as the findings of the Court.
The deceased encouraged his children to purchase property as a means of getting a start in life. In about 1995, the deceased organised for Vinh and Jessie to purchase a property, at Bankstown, for $184,000: T181.18 – T181.20. They obtained a loan for $120,000. Following its purchase, Vinh occupied the property and continued to do so until it was sold. The property was registered in their names. Vinh and Jessie were working and they shared the mortgage debt repayments.
How the balance of the purchase price of the Bankstown property was made up is not precisely known. The Defendants’ submissions, at Paragraph 12, state that “the balance [was] from savings that Vinh and Jessie had accumulated”. Nothing turns on this omission.
Whilst Vinh denied that their parents contributed the balance, he did not identify the source of the balance: T181.28 – T181.33.
This property at Bankstown was sold in about May 2014 for $649,000. After adjustment of council rates ($317) and water rates ($191), the payment of legal costs ($873) and a debt to the ANZ Banking Group Limited ($204,737.36), the amount of $410,423 was sent to Vinh and Jessie. Vinh gave evidence that of that amount, he paid Jessie $50,000 and used part of the balance to pay off the mortgage debt on the Guildford property: T182.03 - T182.16. He did not disclose how the amount paid to Jessie was calculated.
In about 2004, the deceased told Jessie and Vinh that he was going to encourage Stephanie and Simon to purchase a property. Later, the deceased told Vinh that he had spoken to them, that they had agreed to do so, that he would look for a property for them to purchase, and that they would be responsible for the repayment of the mortgage debt secured on the title to any property that was purchased.
The deceased also told Vinh that he (Vinh) would have to pay the deposit and also be the guarantor for the loan to be obtained by Stephanie. He said that the three would have an interest in any property that was purchased as Vinh “is putting himself at financial risk by being a guarantor”.
The deceased also said that the property would be purchased in Stephanie’s name, alone, as she would be entitled to the First Home Owner’s Grant. He said that, later on, a property would be purchased by Simon, who, then, also would be entitled to the First Home Owner’s Grant.
Vinh agreed to help in the purchase, by providing the deposit and giving a guarantee. Neither Vinh’s, nor Jessie’s, evidence, on these matters, was challenged and, in any event, are supported by what actually occurred.
Counsel for Stephanie asked Vinh, and also, Jessie, a number of questions regarding the deceased “organising” the purchase of property for his children: T181.18 – T181.20; T213.11 – T213.21. When each answered that the deceased had done so, counsel did not ask any further questions about what steps the deceased had performed.
When Jessie gave her evidence, the Court enquired of her what the deceased had done in relation to the purchase by her and Vinh of the Bankstown property and she said that in relation to the property purchase, that included “looking for properties … going with Vinh to inspect properties, and attending a solicitor’s office to arrange the sale of the property and going to the bank”: T215.22 – T215.24.
Jessie also gave the following evidence at T215.32 – T215.43:

“Q. Did you know anything about the steps that your father took in relation to the purchase of the Guildford property from your own knowledge?
A. From my knowledge. He was looking in newspapers. Asked Vinh to go and inspect properties and arranging the transfer again, the solicitor’s office and also attending the bank, the same steps.
Q. Anything else?
A. No.
Q. Did your father ever tell you that he had made any financial contribution to the purchase of the Guildford property?
A. No.”

In about May 2005, the deceased located the Guildford property and suggested that it be purchased. The purchase price was $430,000. He told Stephanie about the Guildford property but she did not go to inspect it.
The acquisition of the Guildford property appears to have been fairly straightforward. There is in evidence, a copy of a Trust Account Receipt dated 2 June 2005, from L J Hooker, Guildford, addressed to “Stephanie Co and Simon Co”, showing the receipt of $43,000, “by cash”, which was described as the deposit of 10% on the Guildford property. The receipt states that the money was received from Stephanie and Simon, but it was not suggested by Stephanie that either she, or Simon, had actually paid, or otherwise contributed to, the deposit. The name of the vendor and her solicitor, and the name of “the Purchaser’s solicitors”, Andresakis & Associates, were identified.
Also in evidence is a handwritten “Deposit Receipt”, dated 8 July 2005, from the Commonwealth Bank, Ashfield, the account name being “Stephanie Co”, the account identification number being shown, and $110,000, shown as the amount of the deposit. (There is a corresponding deposit in Stephanie’s Streamline Account with the Commonwealth Bank, showing $110,000.)
Vinh says, and his evidence was not challenged, that the deposit receipt was in his handwriting. He also said that he paid the whole of the amount at the Commonwealth Bank Ashfield, into Stephanie’s account.
Vinh’s evidence on the topic of the source of the deposit and the amount of $110,000 was vague in the extreme. He said, in relation to the deposit, that it had come from cash withdrawals that he had made from his income which had been deposited in the bank.
He had been served with two notices to produce (Ex. SP 8), in each of which he was required to produce “any document identifying the source or sources from which you obtained the cash in the sum of $43,000 … and the cash in the sum of $110,000”.
On the third day of the hearing, in re-examination, he produced some documents, which had not previously been produced, in response to the notices to produce, going to the source of the payments. In one, (Ex. VTC 8), being a Savings Maximiser Statement, in his name, for the period from 1 April 2005 to 30 June 2005, there was a withdrawal of $20,000 on 21 June 2005. Other documents (Ex. VTC 9), being a Streamline Account in his name, for different periods, most of which were in 2005, showed withdrawals of $800 (particularly in 2003) from the account. In the period 1 March 2005 to 31 May 2005, there transfers to another account of $1,500, $2,000, $2,000, $1,500, $2,000, $1,500 and $2,000 (a total of $12,500) and between 1 June 2005 and 4 August 2005, withdrawals of $2,500, $1,000, $1,500, $1,500, $1,200, and $2,000 (a total of $9,700). (I have omitted the reference to the withdrawal of $20,000 which was transferred into the account from the Savings Maximiser Statement.)

Also apt to the circumstances of the present case, in Russo v Bendigo Bank Ltd [1999] 3 VR 376; [1999] VSCA 108, the Court of Appeal in Victoria considered the false attestation by a clerk, employed by a solicitor, who, by virtue of signing the relevant attestation clause, indicated that she had witnessed the mortgagor’s signature on the relevant mortgage document. Ormiston JA held (with Winneke P agreeing), at [36] – [38] that although the clerk had made a false statement, there was no direct evidence of a critical element of fraud, that is dishonesty of moral turpitude.
His Honour also considered, at [40], that as a clerk of limited experience and training, she may have been “unaware of the difference her attestation made in the process leading to registration” and, as such, this process was “seen by her as no more than a formal step in the requisite legal chain of procedures”. On the evidence available to the Court, although the clerk had made a false statement, this in itself did not show that she had been dishonest: at [41]. (Indeed, Ormiston JA refused to draw the inference that she knew that she was putting the mortgage forward on the path of registration.)
Ormiston JA, then, stated, at [42]:

“In the present case it is the conscious impropriety of Miss Gerada [the clerk] which the appellant has failed to make out. It is that element of ‘fraud’ under the Act which the courts have consistently over the years maintained as essential, that is ‘personal dishonesty’ or ‘moral turpitude’ that has not been brought home to Miss Gerada in the present case. She had nothing to gain from her false statement, except possibly some saving of time or trouble. She was not involved in Mr. Halaseh's dishonest schemes. She had no knowledge that Mrs. Russo did not sign and no knowledge that she did not wish to sign the mortgage. In my view it would be a curious consequence that her behaviour should be characterised for this purpose as fraud, for the very essence of that concept is to relieve people from the consequences of indefeasibility only where their behaviour, or the behaviour of those for whom they are responsible, has that element of dishonesty, of conscious moral turpitude or wickedness such as would justify the intervention of a court to set aside the mortgage or other registered estate.”

Although it was a case that considered the alteration of a document presented to the Registrar-General, in respect of which the same principles apply, in Davis v Williams (2003) 11 BPR 21,313; [2003] NSWCA 371, Young CJ in Eq, stated at [110]:

“Even though anyone who attests a dealing under the Torrens system falsely is in one sense committing fraud against the Registrar General, the cases show that that is not enough. It will be enough if an officer of the interested party which has become registered knowingly or recklessly certifies so that the registration is effected (De Jager, Hedley, Sansom). It will not be enough if some officer of the person who obtains registration without any moral turpitude or intention of depriving a person of an interest in land makes a false attestation (Russo). In all cases it must be shown that there was fraud by the person becoming registered or its agent in obtaining registration so that an interest which would otherwise take priority over that interest has been defeated.”

He also wrote at [140] and [142]:

“Moral turpitude and dishonesty are required to constitute fraud, and this involves mens rea. Even stupidity is not enough … It would seem that the clerk took a shortcut which she may have conceived to be in some way permissible when it was plainly not, not with a view to personal profit or anything else …
…
A charge of fraud is a serious one and needs to be properly established. It does not seem to me that in the absence of Ms Moore or any admissions by her of fraudulent intent that one can infer anything more than ignorance, certainly one should not infer any moral turpitude. With great respect, the trial judge seemed to consider that once she had altered the document knowing that it was going to be lodged with the Registrar General, that that was enough. With great respect I do not consider that that is so …”

Hodgson JA, at [25] considered the fact that the registration clerk had not affected a “material misrepresentation, which was such as to influence the Registrar-General to act in a way materially different from what otherwise would have been done, rather than being a mere formality”, meant that the registration clerk was not attempting to affect any person’s property interests; she was simply making what she thought was a short cut in the registration process.
On the issue of the requirement of moral turpitude, Hodgson JA went on to write, at [26]:

“There may also be a further question, namely whether [the registration clerk’s] conduct had that element of dishonesty or moral turpitude that is said to be necessary … For my part, however, I do not see that as being, in this case, a requirement distinct from those I have already raised. If the registration clerk made a representation to the Registrar-General, knowing it to be false in a material respect, and intending that the Registrar-General be induced by the representation to act in a way materially different from what otherwise would have been done, then I think that would be sufficient dishonesty or moral turpitude, irrespective of whether she had any intention that anyone be disadvantaged by this. If a lie is material in respects such as these and understood to be so, I do not think that lack of intent to harm can justify treating it as a “white lie” and as excluding dishonesty or moral turpitude.” (Citations omitted)

(It bears mentioning that in Davis v Williams, at [253], Gzell J in reaching a differing view, considered that the “false lodgement of the altered document was … enough to constitute fraud. That finding did not depend upon direct evidence that might have been given by the registration clerk as to her state of mind.”)
Relevantly, also, in Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548, Sackar J stated, at [95]:

“Having considered these authorities it seems to me that they highlight the importance of the presence of what may be described as moral turpitude or an intention of depriving a person of an interest in the land by some dishonest act.”

Indeed, what should be drawn from these authorities is fraud practised on the Registrar-General, such is the case with a falsely attested instrument, will constitute fraud in respect of s 42 in circumstances that involve moral turpitude, or intention of depriving a person of an interest in land through a dishonest act, by the person obtaining registration. When it is known to a party to the transaction that his, or her, own dishonesty in obtaining the relevant property interest will directly lead to the other party losing her, or his, interest, it is relatively easy to conclude that moral turpitude has been established. If the other party is not being deprived of her or his interest at the expense of the dishonest party, then it would be much harder to do so.
It is more likely than not that it was the deceased, rather than Vinh, who caused the signature of Yu Hua Mo to be placed, as the witness to Stephanie’s signature, on the Transfer. She was, after all, the deceased’s friend, not a friend of Vinh. (Furthermore, it was not put to Vinh, that he had orchestrated the signature of the witness on the Transfer.)
I am satisfied that this is not a case of the forgery of Stephanie’s signature that has been wrongly attested, since I have not accepted her evidence that she did not sign the Transfer. The present case is somewhat unusual in that the attestation was untrue but the Transfer, as I have found, was, in fact, executed by Stephanie as purportedly attested.
The question that arises is whether what occurred involved a consciousness that what was being done was wrong, or that to take advantage of the relevant situation involved wrongdoing. Without in any way condoning the conduct, it is unlikely, on the facts of the present case, that the deceased, was conscious of any wrongdoing. After all, Stephanie wanted to be relieved of the burden of the mortgage and the mortgage repayments; she, as I have found, signed the Transfer, in Brisbane, and returned it, without her signature thereon having been witnessed; and the way forward, so far as substituting mortgagees, was to transfer the Guildford property out of Stephanie’s name. It is likely that the deceased, in asking the witness to attest Stephanie’s signature was simply avoiding the trouble and delay in having the Transfer sent back to Stephanie, to have it re-signed by her and her signature thereon witnessed, and having her return the re-executed Transfer for lodgement with the incoming mortgagee.
Furthermore, in having the witness sign the Transfer, neither the deceased nor Vinh, was seeking to deprive Stephanie of her interest in the Guildford property. On my findings, she had agreed to have the Guildford property transferred out of her name, this being the way in which her liability under the registered mortgage would be discharged. She was well aware that Vinh was going to arrange finance to repay the debt secured by the mortgage that was registered in her name.
Also, although the Transfer was presented to the Registrar-General with a false attestation, there is limited evidence from which to draw a conclusion that the deceased and/or Vinh was aware of the significance of the attestation in the process in registration. Nor am I able to infer that the statement, although false, was known to be false in a material respect, so that the Registrar-General would be induced by the representation to act in a way materially different from what otherwise would have been done.
In this regard, I consider that to infer such a finding of actual dishonesty, without this allegation having been put to Vinh, and bearing in mind the limited evidence surrounding the circumstances of the false attestation and the lodgement of the Transfer, should not occur.
Consequently, I cannot find that there was dishonesty in respect of the deceased and/or Vinh because there is significant doubt as to whether either had an appreciation of the significance of the attestation of the Transfer document, and by extension, an appreciation of the representation that such attestation has made on the Registrar General, when remembering the critical fact that Stephanie had signed the Transfer.
Instead, it seems more likely than not, that any false statement was made in the absence of moral turpitude and in the absence of intent to deprive a person of an interest through a dishonest act. In the circumstances, I am satisfied that the false attestation, in the mind of those involved, was executed in order achieve what was believed to be a practical short cut in respect of what was seen as a formality.
Furthermore, even if the Transfer were set aside and the Guildford property were held as it was prior to its registration, and it was held solely for Stephanie, she would hold the Guildford property on resulting trust for Vinh. I have dealt with Vinh’s obligation to repay the amount of $30,000, which he had agreed to pay to her as part of the transaction.
In the circumstances, there would be no utility in setting aside the Transfer. As it happens, I am not satisfied that there was fraud in the relevant sense required to have the Transfer set aside.

Claim for Damages

No submissions, written or oral, were made on the claim for damages made in the Statement of Claim and nothing was put as to the basis of such a claim. I have assumed that the claim for damages was not pressed.

The Debt ($30,000) and Interest ($5,000) – August 2009

A loan is ordinarily understood to be an “advance of money coupled with a contract for its repayment”: Potter v Potter [2003] 3 NZLR 145, at [13]. The intention of the parties to such a loan, usually, is that ownership in the funds passes to the borrower and the lender is left with an in personam right, secured or unsecured, of repayment: Ying v Song [2010] NSWSC 1500 at [32].
I am satisfied that, despite the close familial relationship that existed in 2009 between Stephanie and Vinh, there was a contractual intention created by the discussion between them pursuant to which Stephanie advanced $30,000 to Vinh, and pursuant to which, he agreed to repay her that amount and interest of $5,000.
Put another way, I am satisfied that the usual presumption, that agreements made in a family are not intended to have legal force, was rebutted, and the parties regarded their arrangement to have legal consequences: Ashton v Pratt (No 2), at [32].
There is little doubt that the debt created was one which was repayable no earlier than the end of 2009. At any time thereafter, Stephanie could have commenced proceedings to recover the debt. A cause of action accrues when all the facts have occurred which give rise to a right to sue: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17, at 245. In this case, it accrued once the date for repayment passed and the debt had not been repaid.
Alternatively, even if the debt was one repayable on demand, the cause of action for the repayment arose immediately the loan was made, that is, in August 2009, not when the first demand was made for repayment, in December 2009: Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51, at 566; Ogilvie v Adams [1981] VR 1041, at 1043; Haller v Ayre [2005] 2 Qd R 410, at [2] (per de Jersey CJ), [20] – [26] (per Keane JA).
Vinh, in accordance with s 68A(1) of the Limitation Act 1969 (NSW) did plead that Stephanie’s right or title to claim the debt had been extinguished: Paragraph 28 of the Fourth Amended Defence.
Section 14(1)(a) of the Limitation Act, which is in the following terms, is relevant in either case:

“General
(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims:
(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed.”

(In this case, Stephanie’s cause of action was in debt, grounded upon a contract made with Vinh.)
Section 63 of the Limitation Act provides:

“Debt, damages etc
(1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished.”

Section 63(2) is not applicable in the circumstances of this case.
Since the claim was made only upon the filing of the Statement of Claim on 9 February 2017, and since that is more than six years after 31 December 2009, Stephanie’s claim is defeated, and the cause of action would, by virtue of s 63(1) of the Limitation Act, be extinguished.
As was pointed out by Pembroke J in McEvoy v McEvoy [2012] NSWSC 1494, at [43]:

“The Limitation Act imposes a six year limitation period for the recovery of monies pursuant to a contract. Where monies are ‘lent’ between family members, this often results in hardship and unfairness, a matter which has been redressed by statute in the United Kingdom. The hardship arises because the informality of the family arrangement and the absence of documentation usually means that the ‘loan’ is characterised as repayable on demand. In such a case, time starts to run, for limitation purposes, from the date the loan was made: Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560; Sundarjee Bros (Aust) Pty Ltd v Sundarjee Bros (HK) Pty Ltd (in liq) [2004] NSWSC 1158 at [14].”

It is clear that the onus of establishing a limitation defence is on the party setting that defence up, in this case, Vinh.
Stephanie did not file a reply to the defence, or make any submissions, suggesting that the bar to obtaining relief was postponed by reason of s 54 of the Limitation Act as a result of Vinh having confirmed the cause of action. However, I shall deal with that possibility in light of the fact that an opportunity was not given to file an amended Defence to the Cross-Claim.
Section 54 provides:

“Confirmation
(1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.
(2) For the purposes of this section:
(a) a person confirms a cause of action if, but only if, the person:
(i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or
...

(4) An acknowledgment for the purposes of this section must be in writing and signed by the maker."

The onus is on Stephanie to establish the alleged confirmation: St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961, Parker J, at [58].
In Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233, Newnes JA summarised some of the relevant principles at [36] - [39], although his Honour was dealing the Limitation Act 1935 (WA), as follows:

"The relevant principles can be stated quite shortly. In order to take a debt out of the operation of s 38 of the Act, it is necessary that there be a promise by the debtor to pay the debt. A promise need not be express and a promise to pay will be implied from an unconditional acknowledgement of the debt... In order to constitute such an acknowledgement there must, upon the fair construction of the words read in the light of the surrounding circumstances, be an admission that the debt is owed... But it is not necessary that the acknowledgement specify the precise amount of the debt so long as it is ascertainable from extrinsic evidence... Nor need the acknowledgement be contained in a single document but a number of documents can be combined to make up an acknowledgement...
A promise to pay or acknowledgement of debt must be made to the creditor or the creditor's agent... Such a promise or acknowledgement need not be made direct to the creditor or the creditor's agent but it is sufficient that the debtor intends that it be communicated to the creditor or the creditor's agent as an admission of the debt...
It is clear from s 44(3) of the Act that an acknowledgement signed by an agent of the debtor is only effective if the agent is duly authorised to sign it. But it is not necessary that the agent have express authority to do so if it is within the agent's general authority... The authority of the agent is to be determined according to the ordinary principles of agency.
Ultimately, what amounts to an acknowledgement is a question of construction in each case and previous cases are therefore of little assistance..." (Citations omitted)

There is no doubt that if what was done by Vinh, through his solicitors, in 2011, was confirmation of the debt, within the meaning of s 54, then it was made prior to the expiry of the limitation period: Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71, per Brennan J, at 569 – 570. In addition, although the correspondence was not written to Stephanie, it was written to her solicitors, who were her agents, for the purpose of being communicated to Stephanie. Vinh did not make the acknowledgement himself, or sign the correspondence in which the acknowledgement was made. However, there was no suggestion by him that his solicitors did not have express authority to do so.

But, in about July 2011, Vinh’s solicitors, whilst stating to Stephanie’s solicitors, in writing, that Stephanie had loaned Vinh the amount of $30,000, and that he had agreed to pay it back, with interest of $5,000, also wrote that Vinh was not required to repay the amount that Stephanie claimed.
It is also important to remember what Gibbs CJ wrote in his dissenting judgment in Stage Club Ltd v Millers Hotels Pty Ltd, at 544:

"Under the law in force before the Limitation Act 1969 was passed it was necessary, in order to take a debt out of the operation of the statute of James I, that a new promise to pay should be capable of being inferred from the acknowledgment. However, an unconditional acknowledgment was held to imply a promise to pay ... Under the Limitation Act 1969 it is not necessary that any promise to pay should be expressed or implied. What is necessary is an acknowledgment of the existence of the debt - and according to the submission for the appellant it must be an acknowledgment that the debt is existing at the time when the document containing the acknowledgment is signed. It is clear enough that, under the former law, it was necessary that there should be an admission that the liability still existed at the date of the acknowledgment, for one could not ordinarily imply a promise to pay from a statement that a liability had existed in the past. There had to be the admission of a present obligation to pay... Although under the Limitation Act 1969, it is no longer necessary that there should be a promise to pay, it is still necessary, in my opinion, that an acknowledgment should admit or recognize the present existence of a cause of action; in other words, where the claim is for payment of a debt, an acknowledgment, to be sufficient, must recognize the present existence of the debt. I respectfully agree with the statement ... that ‘To acknowledge a claim, as a matter of ordinary English, signifies an admission that it is due’. There is no acknowledgment of a debt unless there is ‘an admission that there is a debt . . . outstanding and unpaid’ ..." (Citations omitted)

Thus, whilst Vinh, by his solicitors, had acknowledged the undisputed relationship of lender and borrower that had existed in 2009, he did not admit, or recognise, the then present existence of the debt in mid-2011. The response was not one that he was unable, for financial reasons, to pay the debt (which had been his response in late 2009, and then again, in 2010), but that he denied any liability to repay. Indeed, he stated that if proceedings were commenced to recover the debt, those proceedings would be defended.
In my opinion, the evidence for Stephanie fails to discharge the onus which lay on her to show that a confirmation occurred after December 31, 2009. The result is that her claim for the $30,000 and $5,000 fails.

The Family Provision Proceedings

In the circumstances, as I have concluded that the whole of the beneficial interest in the Guildford property lies with Vinh, there is no estate, or notional estate, out of which a family provision order can be made. Accordingly, that claim for relief brought by Stephanie must also fail.

Costs of the Proceedings

It is unnecessary to do no more than note that each of Vinh and Jessie stated that in the event that Stephanie’s proceedings were unsuccessful there should be no order as to made against her for their costs. An order to that effect will be made.

Orders

The Court:

Orders that the further amended Statement of Claim be dismissed.

Orders that the caveat lodged by, or on behalf of, the Plaintiff, on title to the Guildford property, be removed within 14 days of the making of these orders.

Makes no order for the costs of any party to the intent that each will bear her, or his own costs, respectively, of the proceedings.

Declares that the deceased Van Chi Co held the whole of his interest in the property situated at and known as XX Talbot Road, Guildford being the whole of the land in Auto Consol XX upon resulting trust in favour of the Defendant/Cross-Claimant absolutely.

Orders that within 14 days the second Defendant/second Cross-Defendant execute a transfer in registrable form of the deceased’s right, title and interest in the Guildford property in favour of the Defendant/Cross-Claimant absolutely.

Orders that the Cross-Claim otherwise be dismissed.

Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

**********

Amendments

17 September 2018 - [423] Orders amended.

Decision last updated: 17 September 2018

Medium Neutral Citation:	Papas v Co [2018] NSWSC 1404
Hearing dates:	21 June 2018; 16 – 17 July 2018
Date of orders:	12 September 2018
Decision date:	12 September 2018
Jurisdiction:	Equity
Before:	Hallen J
Decision:	See Paragraph [423]
Catchwords:	EQUITY — Trusts and trustees — Resulting trusts — Purchase money trust LAND LAW — Torrens title — Exceptions to indefeasibility — Whether Fraud — Witness to Transferor’s signature not present when Transfer signed SUCCESSION — FAMILY PROVISION — No estate or notional estate out of which an order can be made
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Limitation Act 1935 (WA) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Across Australia Finance Pty Ltd v Kalls [2008] NSWSC 783 Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 Amos v Hogg [2018] NSWSC 1226 Anderson v McPherson (No 2) [2012] WASC 19; (2012) 8 ASTLR 321 Ashton v Pratt (No 2) [2012] NSWSC 3 Australian Guarantee Corporation Ltd v De Jager [1984] VR 483 Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16 Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248; [1998] HCA 12 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Bouttell v Rapisarda [2014] NSWSC 1192 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Carey v Robson (No 2) [2009] NSWSC 1199 Cetojevic v Cetejovic [2006] NSWSC 431 Chan v Chan [2016] NSWCA 222 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28 Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440 Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Currie v Hamilton (1984) 1 NSWLR 687 Darmanin v Cowan [2010] NSWSC 1118 Davis v Williams (2003) 11 BPR 21,313; [2003] NSWCA 371 Day v Couch [2000] NSWSC 230 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17 Dyer v Dyer (1788) 2 Cox Eq Cas 92; 30 ER 42 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233 Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202 Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83 Haller v Ayre [2005] 2 Qd R 410 Harkness v Harkness (No 2) [2012] NSWSC 35 Hickey v Powershift Tractors Pty Ltd (1998) 9 BPR 17,339 Hintze v Tsering [2018] NSWSC 1190 Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413 Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep) Lucas v Lucas [2018] NSWSC 962 McEvoy v McEvoy [2012] NSWSC 1494 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 National Commercial Banking Corporation of Australia Ltd v Hedley (1984) 3 BPR 9477 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Ogilvie v Adams [1981] VR 1041 Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; (2013) 304 ALR 651; [2013] SASCFC 57 Plunkett v Bull (1915) 19 CLR 544 Potter v Potter [2003] 3 NZLR 145 Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548 Re Hodgson (1885) 31 Ch D 177 Russo v Bendigo Bank Ltd [1999] 3 VR 376; [1999] VSCA 108 Ryan v Ryan [2012] NSWSC 636 Sammut v Kleemann [2012] NSWSC 1030 Sansom v Westpac Banking Corporation (1996) 7 BPR 14615 Shepherd v Doolan [2005] NSWSC 42 St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961 Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Vlahos Pty Ltd v Vlahos [2017] VSCA 166 Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 Warner v Hung; Re Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Weeks v Hrubala [2008] NSWSC 162 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Yeshiva Properties No 1 Pty Limited v Marshall [2005] NSWCA 23 Ying v Song [2010] NSWSC 1500 Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51
Texts Cited:	M J Leeming and J D Heydon, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) N Skead and P Carruthers, “Fraud against the Registrar - An Unnecessary, Unhelpful and Perhaps, No Longer Relevant Complication in the Law on Fraud under the Torrens System” (2014) 40(3) Monash University Law Review 821 P Butt, Land Law (6th ed, 2010, Thomson Reuters) W Swadling, “Explaining Resulting Trusts” (2008) 124 Law Quarterly Review 72
Category:	Principal judgment
Parties:	Stephanie Papas (Plaintiff) Vinh Tran Co (first Defendant) Jessie Rattanathip (second Defendant)
Representation:	Counsel: Mr E White (Plaintiff) Mr K Morrissey (Defendants) Solicitors: Newton Lawyers (Plaintiff) Johnson & Co Lawyers (Defendants)
File Number(s):	2016/386267