Secretary, Department of Social Security v James
[1990] FCA 213
•11 MAY 1990
Re: THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY
And: RUBY THEO JAMES
No. WA G75 of 1989
FED No. 213
Administrative Law - Trusts
20 ALD 5
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)
CATCHWORDS
Administrative Law - Administrative Appeals Tribunal - appeal on questions of law - entitlement to pension - assets test - whether pensioner held beneficial interest in asset or whether asset subject to trust in favour of daughter and grand-daughter.
Trusts - intention to create trust by declaration - need for declared trust to be "created by writing" or "manifested and proved by writing" - Property Law Act 1969 (W.A.) paras.34(1)(a), 34(1)(b)
Administrative Appeals Tribunal Act 1975 s.44
Property Law Act 1969 (W.A.) paras.34(1)(a), 34(1)(b)
Social Security Act 1947 ss.4, 7, 8
Abjornson v. Urban Newspapers Pty. Ltd. (1989) WAR 191
Adamson v. Hayes (1973) 130 CLR 276
Allen v. Snyder (1977) 2 NSWLR 685
Dalton v. Christofis (1978) WAR 42
Dineen v. Secretary, Department of Social Security (1988) 17 ALD 91
Federal Commissioner of Taxation v. Bivona Pty. Ltd. 90 ATC 4168, 4170, 4174
Federal Commissioner of Taxation v. Elton 90 ATC 4078, 4087-4088
Forster v. Hale (1798) 3 Ves. Jun. 696 (30 ER 1226)
Harewood v. Retese (1990) 1 WLR 333 (Privy Council)
Hope v. The Council of the City of Bathurst (1980) 144 CLR 1
Lewis (H.M.I.T.) v. Lady Rook (1990) BTC 9
Morton v. Tewart (1842) 2 Y. and C. Ch Cas 67 (63 ER 29)
N.S.W. Associated Blue-Metal Quarries Limited v. Federal Commissioner of Taxation (1956) 94 CLR 509
Olsson v. Dyson (1969) 120 CLR 365
Perpetual Executors and Trustees Association of Australia Ltd. v. Wright (1917) 23 CLR 185
Smith v. Matthews (1861) De G.F. and J. 139 (45 ER 831)
Williams v. Lloyd (1933) 50 CLR 341
Wratten v. Hunter (1978) 2 NSWLR 367
HEARING
PERTH
#DATE 11:5:1990
Counsel for the Applicant: Mr Rene Le Miere
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr Peter Nisbet
Solicitor for the Respondent: Messrs Kott Gunning
ORDER
1. The appeal be allowed.
2. The matter the subject of this appeal be remitted to the
Administrative Appeals Tribunal for further determination according to law, the Tribunal to receive such further evidence as to it seems fit.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 in respect of a decision by the Tribunal directing the applicant to exclude the value of certain property from the value of the property of the respondent to be taken into account for the purpose of s.8 of the Social Security Act 1947 ("the Act") to determine whether the amount of pension payable to the respondent was to be subject to reduction.
The respondent is a widow. Her husband died in 1970. Shortly thereafter the respondent commenced employment to obtain income additional to that provided by her late husband's estate to support herself and her four children. One of those children was the daughter Bridget who was then 15 years of age. Bridget had suffered brain damage as a result of contracting meningitis on two occasions, firstly as an infant of 9 months and then again at 18 months. The brain damage had created a severe epileptic condition required to be controlled by constant medication.
The respondent continued working until she retired in December 1987 aged 65.
The respondent's daughter Bridget married in 1975 and a daughter Miriam was born to that marriage in 1976. Bridget's husband was unable to cope with his wife's disabilities and her need for medication. The marriage collapsed in 1977 and Bridget and Miriam returned to live with the respondent. Apart from the two years of her marriage, Bridget has lived with her mother for the whole of her life. She is now 35 years of age. The respondent's grand-daughter Miriam has lived with the respondent since she was 11 months old and she is now 14 years of age.
At all material times, Bridget received an invalid pension under the Act from which she made a contribution to the household expenses incurred by her mother.
In 1983 the respondent, her daughter and grand-daughter lived in a two bedroom home unit. The respondent sought to buy a suitable house to accommodate the family but found it to be beyond her means. In addition, there was a likelihood that the general tasks of care and maintenance of such a home would be too much for the respondent's state of health at that stage of her life. She was then aged 61 and had previously undergone heart surgery for the installation of an artificial heart valve.
In June 1983 a home unit, one removed from the unit in which they lived, was offered for sale. The respondent bought the unit after deciding that if she bought it for Bridget and Miriam to live in, she would be able to continue to supervise her daughter's medication regime and assist her in caring for Miriam.
In November 1983 the respondent wrote to the applicant's Department to enquire whether the Department could provide assistance to her daughter in managing her financial affairs. The letter set out a summary of the facts referred to above and noted that the respondent's intention in purchasing the second home unit had been to provide more space and more autonomy for her daughter. The letter also stated that the respondent was anxious to make provision for her grand-daughter Miriam for whom the respondent felt a great responsibility. In her evidence given to the Tribunal, the respondent explained that she had purchased the unit for the benefit of her grand-daughter as well as her daughter and stated that she regarded her grand-daughter as having suffered deprivation because of the inadequacies of her parents.
In that letter to the Department, the respondent stated that Bridget would be able to pay only a nominal rent and noted that the respondent would have to cope with double imposts of water rates and land taxes in respect of the two units.
On her retirement from employment, the respondent applied for an aged persons pension. In that application, the respondent stated that she owned a home unit provided for her invalid daughter and for her grand-daughter. The respondent further stated that:
"The unit was not put in Bridget's name for protective reasons. She is not able to manage her own affairs completely. For her security I have kept it in my name. She has lived at home all her life except for the two years of her marriage."
and
"I have a copy of my will to show the deposition
(sic) of my estate and arrangements for the protection of the unit as a home for Bridget as long as she needs one, and if necessary for Miriam should Bridget die unexpectedly."
In an additional statement provided to the Department in February 1988, the respondent said as follows:
"Initially my daughter and grand-daughter lived with me, however, as my unit only has two bedrooms and to give my daughter a degree of independence I purchased unit no. 11 for her. To all intents and purposes the unit is my daughter's. I have made provision in my will that the unit goes to my daughter solely. My other assets may be divided amongst all my children."
In her evidence to the Tribunal, the respondent said that at the time of purchasing the second unit she had discussed it with two other daughters, and had written to her son explaining what she had intended to do. She had given all of them her reasons for doing it "this way". She stated that she had done it in "that way" to protect her daughter against exploitation, "that way" being the registration of the respondent as proprietor of the unit.
A copy of the respondent's will was not produced but the respondent gave evidence of its contents as follows:
"I have left instructions in my will I think to the effect that: the executors would have to look after it. Probably they would have to be in the position that I am, except of course they could not supervise her...I sort of imagined that if I died, and she was still living in the unit, she must be allowed to live there, and it is hers, and that the executors must remember that. And that they must administer it as far as possible, but it is hers, but it is for her protection."
The respondent said that she had kept the unit in her name simply to safeguard her daughter, otherwise if her daughter had been capable of running her own affairs she would have made it out in her daughter's name so that the daughter would be "just the same as her brother and sisters".
The respondent stated that she had informed her daughter as follows:
"I think she gets very confused and she is still not too sure and she said: 'When you die will I lose the unit or will the family be able to tell me what to do'. And I have said to her: Well I have left the unit - there are executors and I want the unit to be watched so that she does not run into the problems, when I am gone, that she was running into before I did it this way. And I think she understand that. I do reiterate it to her. I say: This is your unit and it is your home and it is to belong to your daughter when you are not here."
When asked what she would do if the daughter and grand-daughter left the unit, the respondent replied:
"Well, if they left me - left and went to live with somebody else - and there was the unit there, I could, I suppose, let it and have the money settled, put into an account, a savings account --- for the benefit of them at such time as they needed it. It is for them and that must go to them, but I would want it protected so that it did not get into other hands."
In her application for review of the applicant's decision to include the value of the unit as part of the value of the respondent's property, the respondent stated as follows:
"The deeds have been left in my name to protect her. There are instructions in my will to provide this home for her after my death. It will devolve eventually on her daughter, Miriam, if her mother dies after me."
The respondent continued to receive a contribution from her daughter after the daughter moved into Unit 11. The contribution was fixed at $40 per fortnight as a sum calculated to meet rates and taxes, maintenance, and insurance on contents of the unit. The respondent said it was treated as an item of budgeting that her daughter would have to carry out if the respondent were not there.
Apparently there was no issue before the Tribunal as to whether the two home unit properties were used in combination so as to form the principal home of the applicant for the purposes of s.4 of the Act (see Lewis (H.M.I.T.) v. Lady Rook (1990) BTC 9). Nor was it contended that any of the provisions of s.7 of the Act were able to be applied to the respondent's circumstances to alleviate severe financial hardship.
The Tribunal made a finding of fact that at about the time she acquired the unit, the respondent had declared an intention to hold the property in trust for her daughter and grand-daughter.
Such a finding of fact is not subject to review on appeal to this Court unless a question of law is raised as to whether the evidence before the Tribunal was incapable of supporting the finding of the Tribunal.
The applicant's notice of appeal specified that the appeal was made on the following questions of law:
"(a) The true construction of section 4(1) of the Act.
(b) At the time when the Respondent acquired the property, was there sufficient certainty of intention by the Respondent to create a trust in respect of the property and, if there was sufficient certainty of intention, was there sufficient certainty as to the objects of the trust?
(c) The true construction of section 34(1)(b) of the Property Law Act 1969 and whether any oral declaration of trust by the Respondent in respect of the property was manifested and proved by some writing as required by section 34(1)(b)."
In addition to those questions the applicant, on the hearing of the appeal, was permitted to raise a further question of law, namely:
"(d) The proper construction of para.34(1)(a) of the Property Law Act 1969 (W.A.) and the application of that provision, so construed, to the facts as found by the Tribunal."
The respondent consented to the applicant including that question of law in the notice of appeal.
With regard to question (a), no argument was addressed to any question of construction of sub-s.4(1) and it was apparently accepted that the Tribunal had correctly stated that the applicant had not taken issue with the proposition put to the Tribunal that in assessing the value of property for the purposes of the Act, legal and beneficial interests may be separated and property in respect of which no beneficial interest was held may be excluded from the property to be valued.
Upon a literal reading, question (b) raised no question of law and only involved questions of fact in that it did not contend that there was no material upon which the Tribunal could be satisfied as to the respondent's intention to create a trust and as to the objects of that trust. However, the applicant was permitted to argue that the evidence before the Tribunal did not reasonably admit the findings of the Tribunal. The question of whether the material before the Tribunal reasonably admitted different conclusions is a question of law, but if answered affirmatively no question of law remains as to the validity of the Tribunal's conclusion. The conclusion to be drawn remains a question of fact. (See N.S.W. Associated Blue-Metal Quarries Limited v. Federal Commissioner of Taxation (1956) 94 CLR 509, per Kitto J. at p 512; Hope v. The Council of the City of Bathurst (1980) 144 CLR 1 per Mason J. at pp 7-8.)
In considering what conclusions may be reasonably admitted by the evidence, it is important to bear in mind that the Tribunal was entitled to look to the totality of the material before it and was not restricted to material which consisted of express oral statements by the respondent. The respondent's statements and actions together were capable of constituting conduct from which an implied declaration of trust could be drawn (Pettit, Equity and the Law of Trusts (5th Edition) p 86).
When considered as a whole and not as discrete passages of evidence, the material before the Tribunal permitted the conclusion to which the Tribunal adhered, namely that a present irrevocable trust had been declared. Notwithstanding that the evidence may have raised competing inferences, the Tribunal's determination was an available conclusion. (See Federal Commissioner of Taxation v. Bivona Pty. Ltd. 90 ATC 4168, 4170, 4174; Federal Commissioner of Taxation v. Elton 90 ATC 4078, 4087-4088.)
Evidence relating to the receipt of contributions described as "rent" and to the devising of the property by will were capable of indicating that the respondent did not have the necessary intention to declare a trust.
However, in speaking of "protecting" her daughter's interests, the respondent may be seen to have been acknowledging a role as trustee and undertaking to hold the property for the interests of her daughter and daughter's child. If the respondent had purchased the unit as her own property to dispose of as she saw fit, either in her lifetime or by her will, her daughter would have no interest in property to require protection. On the material before it, it was possible for the Tribunal to conclude that the respondent had declared that she held the property on trust for her daughter as to a life interest - in respect of which the daughter was to make a contribution to outgoings - and thereafter for her grand-daughter in remainder and that the instructions in her will to her executors confirmed that declaration and did not create the trust. The Tribunal was certainly entitled to find that the circumstances displayed more than a mere family understanding as to the testamentary intentions of the respondent. (See Dineen v. Secretary, Department of Social Security (1988) 17 ALD 91.) The circumstances did not exhibit the hallmarks of an unperfected gift which would have prevented the construction of the respondent's intention as a declaration of trust. (See Olsson v. Dyson (1969) 120 CLR 365 per Kitto J. at p 375; Williams v. Lloyd (1933) 50 CLR 341 per Dixon J. at p 369.)
The Tribunal did not proceed to set out any findings as to the terms and objects of the trust having made the essential finding that the respondent held the land as trustee and, therefore, held no beneficial interest in it. However, if it were necessary, there was ample evidence upon which the Tribunal could have concluded that at the time of declaration the respondent saw it as her responsibility to attempt to redress some of the disadvantages that her daughter and grand-daughter had suffered in life and to do so by providing a protected life estate in the unit for her daughter and for the grand-daughter to have the benefit of the remainder.
The remaining questions of law relate to the proper construction of paras.34(1)(a) and 34(1)(b) of the Property Law Act 1969 (W.A.) and the application of that Act, so construed, to the facts as found by the Tribunal.
Section 34 of the Property Law Act 1969 (W.A.) reads as follows:
"34.(1) Subject to the provisions hereinafter contained in this Act with respect to the creation of interests in land by parol -
(a) no interest in land is capable of being created or disposed of except by writing signed by the person creating or conveying the interest, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;
(b) a declaration of trust respecting any land or any interest therein shall be manifested and proved by writing signed by a person who is able to declare the trust or by his will;
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition shall be in writing signed by the person disposing of the interest, or by his agent thereunto lawfully authorised in writing or by will. ..."
The applicant submitted that para.34(1)(a) extended to prevent the creation of any equitable interest in land including an equitable interest created by a declaration of trust unless created in writing, or by will, or by operation of law.
The applicant submitted that the application of the reasoning applied by the majority of judges in Adamson v. Hayes (1973) 130 CLR 276 required a conclusion that a trust of land could only be created by writing.
Adamson v. Hayes was concerned with the dealing in equitable interests in lands by oral agreement and the application thereto of s.34 of the Property Law Act 1969 (W.A.). It was not a case restricted to the specific question of the application of para.34(1)(a) to a declaration of a trust although several judgments considered that question. Menzies J. held that para.34(1)(a) had no application to an equitable interest created by a declaration of a trust (pp 292-293). Walsh J. went no further than to hold that para.34(1)(a) applied to the creation and disposal of equitable interests by oral agreement (p 297). Gibbs J. held that the arrangements amounted to a declaration of trust to which para.34(1)(b) applied and his Honour appeared to accept that para.34(1)(b) was not overtaken by the provisions of para.34(1)(a) of the Act (pp 303-304). Stephen J. considered that paras.34(1)(a) and 34(1)(b) both applied to a declaration of trust (pp 318-319).
The decision in Adamson v. Hayes has been the cause of much debate as to its consequences. (See D. Everett, Reconciliation of the Statutory Requirements for Writing in Land Transactions (1987) 17 UWAL Rev 301 at pp 311-312.)
In Abjornson v. Urban Newspapers Pty. Ltd. (1989) WAR 191 at pp 198-199, Kennedy J. reviewed the state of the law before the introduction of s.34 of the Property Law Act 1969 (W.A.):
"Section 34 has its origin in ss 3, 7, 8 and 9 of the Statute of Frauds. Section 3 is now to be found in par (a) of s 34(1), ss 7 and 8 in par (b) and s 9 in par (c). The different forms of expression to be found in subs (1) may be traced to the different authorship of the various sections of the Statute of Frauds: see W S Holdsworth, History of English Law Vol 6, pp 379 and following. (1677) (Imp)
...
The Western Australian Act was modelled to a very large extent upon the Victorian property legislation. The provisions in the United Kingdom Law of Property Act and in its associated legislation could be divided into two distinct categories. The first made quite drastic changes in the law, whereas the second made only minor changes. The provisions falling into the first category were not adopted in Victoria, where the work of Sir Leo Cussen effectively determined the course which the great majority of Australian States would follow. This was on the simple ground expressed in the Preface to Volume 1 of the Victorian Statutes, 1929, p 1xxx, that it was not desirable in Victoria. Most of the provisions falling into the second category were, however, adopted in Victoria and eventually found their way into the legislation of Western Australia. The significance of this is that the Property Law Act was, in large measure, a consolidating Act. Of course, this is not to suggest that the new Act simply reproduced earlier legislation: see Gibbs J. in Adamson v Hayes (1973) 130 CLR 276 at 304, but it would be surprising if, in the absence of clear language, well established rules under the replaced legislation should be taken to have been brushed aside."
The provisions of the Statute of Frauds were not construed as requiring a declaration of trust to be created in writing. As Lord Alvanley said in Forster v. Hale (1798) 3 Ves Jun 696 at p 707:
"It is not required by the statute that a trust should be created by a writing; and the words of the statute are very particular in the clause
(sect.7), respecting declarations of trust. It does not by any means require that all trusts shall be created only by writing; but that they shall be manifested and proved by writing; plainly meaning that there should be evidence in writing, proving there was such a trust. Therefore, unquestionably, it is not necessarily to be created by writing, but it must be evidenced by writing; and then the statute is complied with; and indeed the great danger of parol declarations, against which the statute was intended to guard, is entirely taken away. I admit it must be proved in toto, not only that there was a trust, but what it was.'"
Similar provisions in the Law of Property Act 1925 (U.K.) have been long construed as excluding declarations of trusts of land from the operation of a provision such as para.34(1)(a). (Ford and Lee, Principles of the Law of Trusts, para.606.)
Authors of texts on trusts and equity have also contended that para.34(1)(a), or its equivalent, does not extend to the equitable interest in land created by a declaration of trust referred to in para.34(1)(b). (Meagher, Gummow and Lehane, Equity Doctrines and Remedies (2nd Edition) para.706; Ford and Lee, para.606; but cf. Jacobs, Law of Trusts in Australia (5th Edition) para.705.)
In my view, the proper construction of paras.34(1)(a) and 34(1)(b) does not require a declaration of a trust in land to be treated as a special class of equitable interest only capable of being created in writing and further, to be manifested and proved by writing signed by the declarant. Paragraph 34(1)(b) would be either an odd exception, or otiose, if para.34(1)(a) were to be construed as including the declarations of trust in respect of land specifically provided for in para.34(1)(b).
The applicant further submitted that para.34(1)(b) of the Property Law Act 1969 (W.A.) had not been satisfied in that there was no writing which sufficiently set out the terms of the trust and described a clear intention to create a trust (Smith v. Matthews (1861) 3 De GF and J 139 at p 151 (45 ER 831, 835); Morton v. Tewart (1842) 2 Y and C Ch Cas 67 at p 80, (63 ER 29, 35).)
The requirements of para.34(1)(b) may be satisfied by a combination of documents capable of being read together. Any informal writing may stand as evidence of the existence of a trust including correspondence from third parties, a telegram, an affidavit or an answer to interrogatories.
The date of creation of the writing is not material. It may come into existence at any time after the declaration of the trust.
The Tribunal turned its attention to this question and found the necessary writing to be supplied in the letter from the respondent to the Department dated 23 November 1983 and in the submission the respondent had written in support of her application for a pension in December 1987.
Although the Tribunal did not refer to it, it may have included in the combination of documents the written application for the review of the departmental decision signed by the respondent on 1 May 1988 which stated as follows:
"The unit is not used as an asset. I provided it as a home for my invalid-pensioner daughter...The deeds have been left in my name to protect her. There are instructions in my will to provide this home for her after my death. It will devolve eventually on her daughter, Miriam, if her mother dies after me."
In combination, those documents may have provided writing to confirm an intention to create a trust, to identify the daughter and grand-daughter as objects of the trust, to identify the home unit as the property subject to the trust and to state the terms of the trust to be a life estate for the daughter the with remainder to the grand-daughter.
The reasons of the Tribunal were expressed as follows:
"That section, which derives from S7 of the Statute of Frauds 1977, does not require that a trust be constituted by writing. It is sufficient compliance that there be subsequent written manifestation as evidence of the existence of the trust (Halsbury's Laws of England 4th edition Vol 48 at para 542, Jacob's Law of Trusts in Australia 5th edition, para 707 item 3). In Rochefoucauld v Boustead 1897 1 Ch 196 at 206, the Court of Appeal said with respect to S7 of the Statute of Frauds: 'But it is not necessary that the trust should have been declared by such a writing in the first instance; it is sufficient if the trust can be proved by some writing signed by the defendant, and the date of the writing is immaterial.' That quote is equally apposite to s.34(1)(b) of the Property Law Act.
The Tribunal finds the applicant purchased the unit for the benefit of her daughter and granddaughter but retained the title in her own name in order to protect the investment. If sufficient written confirmation of the existence of a trust for the purposes of s.34(1)(b) of the Property Law Act 1969 cannot be found in the letter of T24, then it becomes abundantly clear from quotes mentioned below (Exhibit A T4 p7). As the Tribunal has previously found, the letter (T 24) is not a document creating a trust in that it does not set out the terms and conditions of the trust. It purely provides written confirmation that the applicant intended to establish a trust. Given the purpose of the letter it does not, nor could it be expected to, set out as clearly as would be the case the terms and conditions of the trust if the trust were established by a deed prepared by a solicitor. In order to clarify the terms on which the trust was held, the Tribunal feels it is appropriate to look to extrinsic evidence, even subsequent evidence, in order to resolve those questions such as what would happen if the applicant's daughter was to move from the unit.
In a document which was apparently appended to the applicant's pension claim form, the applicant said (Ex A T4 p7):
'This unit was purchased in June 1983 for my invalid pensioned daughter, Bridget Eleanor Groves, and her child, Miriam.' and, later in the same letter: I have a copy of my will to show the disposition of my estate and arrangements for the protection of the unit as a home for Bridget as long as she needs one and, if necessary, for Miriam should Bridget die unexpectedly.'
The Tribunal also notes that the Social Security Appeals Tribunal (T 22 p40) found that it was Mrs James's intention that the proceeds from the sale of the unit if it was ever to be sold were not to be used for her (Mrs James's) benefit but for the benefit of her daughter and granddaughter in perpetuity. That accorded with the evidence Mrs James gave at the hearing of the Tribunal when she told the Tribunal that should her daughter move from the unit then it may be sold but the proceeds would be set aside for the use of her daughter and granddaughter. The view of the Tribunal is that this constitutes sufficient evidence of the terms upon which the property was to be held in trust."
It may be seen that in having regard to extrinsic evidence for the purpose of "clarifying" the terms on which the trust was held, the Tribunal had resort to oral evidence which augmented, rather than clarified, the writing upon which the respondent relied to satisfy the requirements of para.34(1)(b) of the Property Law Act 1969 (W.A.). The parol evidence supplied elements that were missing in that writing. This was not a case of the parol evidence resolving a matter to which the writing had referred. (See Harewood v. Retese (1990) 1 WLR 333 (Privy Counncil).) The Tribunal appeared to confuse the question of the sufficiency of the evidence required to persuade the Tribunal that there had been a declaration of trust with the question whether there had been sufficient evidence to show that the requirements of para.34(1)(b) of the Property Law Act 1969 (W.A.) had been met. The Tribunal did not confine its consideration of the latter question to whether such a declaration and the terms of the trust had been further manifested and proved by writing for the purposes of para.34(1)(b). It reached its conclusion that the paragraph was so satisfied by reliance upon the oral evidence.
In so acting, the Tribunal misunderstood the requirements of para.34(1)(b) of the Property Law Act 1969 (W.A.) and erred in law in its finding that the requirements of the paragraph were satisfied. It was not contended that this was a case where oral evidence may be relied upon to prevent the statement being used as an instrument of fraud. (Dalton v. Christofis (1978) WAR 42; Allen v. Snyder (1977) 2 NSWLR 685; Wratten v. Hunter (1978) 2 NSWLR 367.)
The matter must be returned to the Tribunal for further hearing and determination on this issue. It would be appropriate that there be a direction that the Tribunal receive such further evidence as it sees fit. The Tribunal has determined that the respondent made a declaration of trust in respect of the unit. Determination of the question whether para.34(1)(b) of the Property Law Act 1969 (W.A.) has been satisfied may require the Tribunal to allow the respondent to produce the will to which she referred and any other writing she may have prepared to satisfy the requirements of the paragraph. (See Perpetual Executors and Trustees Association of Australia Ltd. v. Wright (1917) 23 CLR 185 at p 196.)
I will hear counsel on the question of costs.
2
6
0