Slymms and Wisteria and Ors (No 2) - [2011] FamCA 507

FAMILY COURT OF AUSTRALIA

SLYMMS & WISTERIA AND ORS (NO 2)

[2011] FamCA 507

FAMILY LAW - PROPERTY SETTLEMENT – whether second and third respondents have beneficial interests in property pursuant to a resulting trust or alternatively a constructive trust – whether such beneficial interest may in turn be subject to an interest pursuant to a constructive trust in favour of the wife – findings pursuant to s 79 – just and equitable orders

Family Law Act 1975 (Cth): s 75(2); s 79

Af Petersens & Af Petersens (1981) FLC 91-095;
Baumgartner v Baumgartner (1987) 164 CLR 137;
Browne v Green (1999) FLC 92 – 873;
Calverley v Green (1984) 155 CLR 242;
Customs & Excise Commissioners vA (2003) 2 All ER 763;
Digi-Tech (Australia) v Brand & Ors (2004) NSW 62 IPR 184;
Elsey v Elsey (1997) FLC 92-727;
Giumelli v Giumelli (1999) 196 CLR 101;
Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143;
Muschinski v Dodds (1984-1985) 160 CLR 583;
Nelson v Nelson (1994) 33 NSWLR 740; (1995) 184 CLR 538;
Prince & Prince (1984) FLC 91-501;
Whisprun Pty Limited (formerly North West Exports Pty Limited) v Dixon (2003) 200 ALR 447

APPLICANT:

Ms Slymms

FIRST RESPONDENT:

Mr Wisteria

SECOND RESPONDENT:	Mr A
THIRD RESPONDENT:	Ms A

FILE NUMBER:

SYC

1767

2008

DATE DELIVERED:

30 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rose J

HEARING DATES:

31 January 2011;
1–3 February 2011;
8 April 2011; 18–20 April 2011;

13 May 2011; 27 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	G Gould
SOLICITOR FOR THE APPLICANT:	McDonell Milne Toltz Family Lawyers
COUNSEL FOR THE FIRST RESPONDENT:	L Snelling
SOLICITOR FOR THE FIRST RESPONDENT:	Caroline Chung & Associates
COUNSEL FOR THE SECOND & THIRD RESPONDENTS:	G Watkins & P Batey
SOLICITOR FOR THE SECOND & THIRD RESPONDENTS:	Margaret Tan & Associates

Orders

Declare that the second and third respondents hold the following beneficial interests in real property and funds in the controlled monies account reflecting net proceeds of sale of the property … B Street, Sydney Suburb 1:
(a) 32% of the equitable estate in the title to … F Street, Sydney Suburb 2;
(b) 13% of the equitable estate in the title to … G Street, Sydney Suburb 1;
(c)13% of the monies held in the controlled monies account on behalf of the parties being the net proceeds of sale of the property … B Street, Sydney Suburb 1.
That on or before 5.00pm 14 July 2011 the parties sign all documents and do all acts and things necessary to ensure payment to the wife by payment to her solicitors of $408,845.00 from the controlled monies account referred to in Order 1(c).
That on or before 5.00pm 14 July 2011 the husband sign all documents and do all acts and things necessary for the following purposes:
(a)transfer to the wife of the ownership of the Kia motor vehicle currently used by her;
(b)dissolution of the partnership known as Business 1 carrying on business in Sydney Suburb 3 and all other places in Australia;
(c)transfer to the wife of the business name “[Business 1]” and all of its business undertakings.
That the husband pay to the wife by payment to her solicitors the sum of $536,014.00 on or before 5.00pm 30 September 2011.
That upon the husband complying with Orders 2, 3(a), (b), (c) and 4 the wife together with the two children of the marriage vacate the property … G Street, Sydney Suburb 1 on or before the expiration of eight (8) weeks from the date of such full compliance unless otherwise agreed in writing between the husband and wife.
That pending compliance by the wife with Order 5 the wife have exclusive occupancy with the two children of the property … G Street, Sydney Suburb 1 and she shall be entitled to retain all income derived from boarders at that property and otherwise be liable to pay all council rates, water rates and other outgoings in respect of that property without accounting to the husband and the second and third respondents.
Declare that subject to the Orders made this day the husband and wife are each beneficially entitled to all items of personalty in his or her possession respectively.

Other orders

That all documents produced on subpoena may be returned to the person who produced the same.
That all outstanding applications for financial relief are dismissed save and except any application for costs.

IT IS NOTED that publication of this judgment under the pseudonym Slymms & Wisteria and Ors (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC1767 of 2008

Ms Slymms

Applicant

And

Mr Wisteria

First Respondent

And

Mr A

Second Respondent

And

Ms A

Third Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings were instituted by Ms Slymms (who for convenience I shall refer to as “the wife”) by her Application filed 18 August 2008.
The wife sought orders for property settlement requiring the first respondent Mr Wisteria (who for convenience I shall refer to as “the husband”) to transfer to the wife his interest in:
(a) the property G Street, Sydney Suburb 1 (“the former matrimonial home”);
(b) Kia motor vehicle, registered number … ; and
(c)both the business name and partnership business trading as “[Business 1]”.
In addition, the wife sought an order that the husband indemnify her against all claims and demands that may be made upon her by the husband’s parents or either of them. The husband’s parents are the second and third respondents in the proceedings.
The husband by his Amended Response filed 10 February 2010 in substance sought declarations and orders for the purpose of transferring his interest in real property and shares to the second and third respondents, ancillary relief and orders for property settlement. In addition, the husband sought parenting orders, however, the husband’s application was not listed for hearing before me.
The second and third respondents by their Response filed 12 February 2009 sought declarations and orders that give effect to the equitable interest that they claim they held pursuant to a resulting trust or, in the alternative a constructive trust in respect of the former matrimonial home, other real estate and funds held in various accounts. Those accounts include the controlled monies account in which was deposited, by consent, the net proceeds of sale of the property situate at B Street, Sydney Suburb 1.
On 9 February 2010, I made orders for the filing and service of points of claim of behalf of the husband, the second and third respondents and that the husband file and serve points of defence, implicitly in relation to the points of claim to be filed on behalf of the second and third respondents. Those documents were subsequently filed and served.
The cases for the husband, the second and third respondents that a resulting trust had been established or, alternatively a constructive trust (the contention of the second and third respondents), were put in issue in the points of defence. The proceedings before me were conducted on the basis that wife opposed the relief sought in that regard.
By email dated 27 April 2011 and 9 May 2011 the legal representatives for the parties were requested to supplement their proposed written submissions by a further submission as to whether or not the interest which may be the subject of the resulting trust to which I have referred is susceptible, as a matter of law, to have imposed on it a constructive trust in favour of the husband and wife or, either of them.
No directions were sought on behalf of the husband or the wife in relation to the parenting proceedings commenced by the husband pursuant to his amended response to which I have referred. Consequently, further case-management and pre-trial directions that were made were exclusively in relation to the pending property settlement proceedings between them and the declarations and ancillary orders sought by the second and third respondents regarding the equitable interests which they contended were held by them.
The husband and wife cohabited for a period of approximately 15 years which commenced on their marriage which took place in 1992. The husband and wife separated on 1 March 2007 under the same roof. The husband left the former matrimonial home on 1 April 2008. The husband and wife have lived separate and apart continuously since that time.
On 24 July 2008 the Federal Magistrates Court issued a divorce order.
The wife is 42 years of age and her occupation is that of business proprietor. The wife carries on the business of Business 1 in Sydney Suburb 3.
The husband is 47 years of age. His occupation is that of company director.
The second and third respondents reside in Indonesia and make periodic visits to Sydney.
The two children of the marriage are:
(a) B, 16 years of age having been born in July 1994;
(b) C, 15 years of age having been born in January 1996.
The two children live with the wife in the former matrimonial home.

Historical background

The following are brief relevant historical matters not the subject of controversy in the proceedings.
In 1992 the F Street property was purchased by the husband for $295,000.00.
In 1994 the former matrimonial home was purchased by the husband for $375,000.00.
In 1994 “[Business 1]” was established. The husband and wife have been the joint proprietors throughout the time of its operation. Its business undertaking has been in the education industry. Apart from the office in Sydney Suburb 3, two offices have been operated until recent times in Indonesia being in Indonesian City 1 and Indonesian City 2.
In 2003 the property at B Street, Sydney Suburb 1 was purchased (“the B Street property”) by the husband. He was the sole registered proprietor.
In 2004 the second and third respondents purchased H Street, Sydney Suburb 1 (“the H Street property”) which has been leased.
The husband has been associated with and/or held shares in the following companies:
(a)      Company 1
(b)      Company 2
(c)      Company 3
(d)      Company 4
(e)      Company 5
(f)       Company 6
(g)      Company 7
(h)      Company 8
(i)       Company 9
Subsequent reference will be made to these companies to the extent to which it has been possible to do so given gaps in the evidence.
In April 2008 an interim apprehended violence order was made against the husband for the protection of the wife.
In June 2008 an interim apprehended violence order was made on the same basis.
On 9 September 2008 interim orders were made by consent restraining the husband from dealing with his interest in the former matrimonial home, the B Street property, the F Street property, Company 4, and a number of specified companies as well as his interest in Business 1. The wife was ordered to continue the operation of and the day to day management of Business 1. The husband, the second and third respondents were restrained from dealing with their interest in certain term deposit accounts. All of such orders were made on terms and conditions. Directions were made.
Later in September 2008 a further interim apprehended violence order was made against the husband on the same basis as previously.
On 22 December 2008 orders were made by consent continuing orders made on 9 September 2008 until further order subject to the variation of a specified term deposit account number.
On 9 February 2010 directions were made for the filing and service of points of claim and points of defence as well as in relation to other procedural matters. It was noted that agreement had been reached in relation to the appointment of a single expert for the purpose of valuing corporate interests and further agreement was likely with regard to the appointment of a single expert to provide a report as to the current market value of relevant real estate.
On 1 October 2010 case management directions were made. By consent interim orders were made in relation to the proposed sale by the husband of the B Street property and the manner in which the proceeds of sale were to be applied, including the holding of the balance of net sale proceeds in a controlled monies account to be held in trust for the parties pending further order or agreement between them. It was noted that the husband and wife had appointed Mr S, chartered accountant as the single expert to provide a valuation report in respect of Business 1. It was further noted that the parties had appointed Valuers 1 as the single expert to determine the current market value of the former matrimonial home and the F Street property.
The hearing was fixed for four days commencing 10.00am 31 January 2011 and proceeded accordingly. Substantial time was provided to the parties at the request of their legal representatives so that they would have the opportunity to progress negotiations for settlement which ultimately did not occur. Further hearing dates were fixed and took place on 8 April, 18 to 20 April, 13 May 2011 and 27 May 2011.

Relevant principles

It is now well established that generally speaking the approach to be taken to determination of property settlement proceedings, concluding with an order that is “just and equitable” represents four steps.
The first of which is that the Court should determine the property and financial resources of the parties at the date of the hearing.
Secondly, determine the nature and extent of the respective contributions made by each of the parties whether financial or non financial, including contribution to the welfare of family in the role of home-maker and parent.
Thirdly, determine and assess the relevant matters pursuant to s 75(2).
Fourthly, consideration of orders, if any, that should be made that are just and equitable.[1]
[1] Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143
I will now proceed to make findings in relation to the property of the parties, their respective financial and non-financial contributions and relevant matters (if any) pursuant to s 75(2) of the Act. In addition, I will make findings in respect of the issue of “waste” raised by the applicant.

property of the husband and wife subject to the interest claimed by the second and third respondents

The following is the reproduction of Exhibit 1 being the joint balance sheet:

Ownership			Description				Wife/ Applicant’s value		Husband/ First Respondent value		Second Respondent/ third Respondent value		Comment
Assets
1.	H		[G Street, Sydney Suburb 1]				$1,700,000		$1,700,000		$1.700,000		Single expert valuer – [Valuers 1] conducted valuation
2.	H		[F Street, Sydney Suburb 2]				$825,000		$825,000		$825,000		Single expert valuer – [Valuers 1] conducted valuation
3.	H		[B Street, Sydney Suburb 1] – proceeds of sale				$469,937		$469,937		$469,937		Property sold and settled in December 2010 pursuant to Consent Orders pronounced 1 October 2010. Monies held in controlled monies account by Second and Third Respondents’ solicitors
4.	H & W		[Business 1], Partnership				$271,733		$271,733		Single expert valuer – [Valuers 2] conducted valuation
5.	W		Monies in account WBC				$5,000		NIL
6.	H		Monies in account				$2,000		$2,000
7.	TP		HSBC account in the name [Mr A] and [Ms A] No. […]				$57,267		In account subject to Injunctions (Orders 9/9/2008 and 22/12/2008)
8.	TP		HSBC account in the name [Mr A] and [Ms A] No. […]				$487		In account subject to Injunctions (Orders 9/9/2008 and 22/12/2008)
9.	HSBC Bank Account No. […]; […] Branch in the name of [the husband]				NIL
10.	H		HSBC Bank Account No. […] in the name of [the husband]				$2,000 AUD
11.	H		HSBC Bank Account No. […]				NIL
12.	H		Westpac Bank Saver Account BSB: […] Account No. […] in the name of [the husband]				$NIL
13.	H		Westpac Bank BSB […], Account No. […] in the name of [the husband]				NIL
14.	H		Mercedes motor vehicle ([…])				$8,000
15.	H		BMW motor vehicle ([…])				$25,000		$25,000
16.	W		Kia motor vehicle ([…])				NIL		$2,000		Unregistered, undriveable, engine seized
17.	H		Shareholding – [Company 4]				$50,000		$50,000		$50,000		Shareholding not valued, Wife accepts $50,000 for purposes of hearing
18.	H		Shareholding – [Company 1]				$50,000		NIL		MIL		Shareholding not valued, Wife accepts $50,000 for purposes of hearing. However, Husband discloses in Affidavit sworn 18 January 2010, paragraph 101, that company sold assets and $297,000 received by Husband/ Second Respondent. Not previously disclosed by the Respondents.
19.	H		Shareholding [Company 8]				NIL		NIL		NIL
20.	H		Shareholding [Company 5]				NIL		NIL		NIL
21.	W		Household contents				$2,000		$2,000-wf share only of contents of [G Street]
22.	H		Household contents				$2,000		$1,500
Total			$3,402,670		$3,360,170		$3,102,691
Addbacks
23.		Monies received by First, Second and Third Respondents from the shareholding in [Company 1]				$297,000		NIL		NIL
24.		Wastage by Husband				$560,000		$560,000		Paragraph 53 Husband’s Affidavit
Total		$857,000
Liabilities
25.		H	Mortgage secured over [F Street]				NIL		NIL		$313,000
26.		H	Loan from Husband’s parents				NIL		$1,000,000		$1,000,000
27.		W	Credit Cards				$30,000
28.		H	Credit cards				$		$88,000
29.		H	Child Support arrears				NIL		NIL
Total		$30,000		$1,088,000
Superannuation
Member		Name of Fund	Type of Interest		Wife/ Applicant ‘ value		Husband/ First Respondent value		Second Respondent/Third Respondent value
30.			H		[Super 1]	$		$19,514
31.			W		[Super 1]	$18,848
32.
33.
34.
Total			$18,848		$19,514
Financial Resources
Owner-ship			Description			Wife/Applicant value				Husband/First Respondent value		Second Respondent/Third Respondent value
35.			H	Husband’s parents		$NK
36.
Total			$
N Notes
In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading: 1. Why an item should not be on the balance sheet. 2. Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert. 3. Whether documents in the possession of the other party need to be provided before the value of an item can be agreed. 4. Any other comment a party wishes to make in relation to the disputed item.
Item No			Wife’s Notes
1,2,3			The Husband and the Second and Third respondents all contend that these assets are held on trust by the Husband for the Second and Third Respondents.
14,15			Redbook valuation to be updated.
17,18, 19,20			Contention of the Husband and the Second and Third Respondents contend that these assets are held on trust by the Husband for the Second and Third Respondents.
25			Respondents to disclose nature and purpose of refinancing.
Husband’s notes
7,8, 17			Ar Are funds of 2^nd & 3^rd respondents Held in trust for 2^nd & 3^rd respondents
18			Held in trust for 2^nd & 3^rd Respondents but now nil value as company asset sold and proceeds accounted to, to 2^nd & 3^rd Respondents [sic]
23			Sale proceeds accounted to 2^nd & 3^rd Respondents
25			Should not be on Balance Sheet as wastage by husband not matter for property proceedings between husb and wife.
26			Should not be on Balance Sheet as matter between husband and 2^nd & 3^rd respondents
29			Husband has paid child support.
2^nd and 3^rd Respondents notes
7,8			2^nd & 3^rd respondents contend these are their bank accounts
18,23			2^nd & 3^rd respondents contend that the $297,000 received by [Company 1] was repayment of monies invested by husband on behalf of the 2^nd and 3^rd respondents.
The 2^nd & 3^rd respondents do not comment on the other matters in the Balance Sheet.

Exhibit 1 – disputed items

It is apparent from Exhibit 1 that contentious items are reflected in Items 1, 2, 7, 8, 17, 18, 19, 20, 23, 24, 25, 26 and 29 of Exhibit 1.
I make the following findings in relation to each of those items.

Item 2 - the F Street property

The husband gave affidavit and oral evidence in relation to this property. His affidavit evidence in substance is as follows.
The husband contended that the purchase of the property was to provide a home for the second and third respondents, himself and other family members when they visited Australia.
The husband’s evidence is that at the time of purchase he had the following conversation with the third respondent who said to him:
“...we want to buy a house so we have somewhere to stay when we come to visit you in Australia. We will go looking at houses”.
Following inspection of a number of properties his further evidence is that the third respondent decided to purchase the property having said to him after an inspection “call the agent again I want to see the house for the second time and ask the agents to take the curtains and blinds up so I can see if it has light coming in”. Subsequently, the third respondent allegedly said to him “I’ll go with the [F Street Sydney Suburb 2] property”.
Subsequent to the last mentioned events, the husband stated that he received instructions from the third respondent to make an offer and to negotiate which then proceeded and “eventually my mother agreed to and paid $295,000.00”.
The husband further contends that the second and third respondents paid $95,000.00 on account of the purchase price including deposit and in addition, paid stamp duty and legal costs. The balance of the purchase price, being $200,000.00, was borrowed from Westpac secured by a mortgage over the property. It is common ground that the registered proprietor is the husband who purchased it.
The husband’s further affidavit evidence is that “it was necessary to register the property in my name as my parents did not have permanent residency at that time”. The husband claims that the second and third respondents made repayments on account of the Westpac loan by depositing money from time to time in the relevant bank accounts.
The further affidavit evidence of the husband is that his sister and some of his cousins lived in the property from time-to-time and his income was supplemented by student boarders in the home. In addition, the husband, wife and their two children lived in the property.
During his oral evidence the husband said that the reason for the purchase of the property in his name, being purchased on behalf of the second respondent, or the second and third respondents, was that at the time they were not permanent residents of Australia. That was one of the major reasons. The other reason was to “train him” to act and learn to do the business, “take risk” and to tell members of the family that the second and third respondents would like to trust their children to the utmost. He is the only son.
In relation to the alleged main reason for the purchase in his name, rather than the name of the second and third respondents, namely that they were not permanent residents of Australia, he said that he did not make enquiries as to whether that was correct, but rather the real estate agent told him.
The husband pays tax in relation to rent from the F Street property.
The husband stated that he has left all of his property to the two children by his Will, although he could not recall it “one hundred per cent”. Upon being shown the Will the husband agreed. The husband agrees that the Will was made after he acquired a legal interest in the F Street property and the former matrimonial home. Subsequently, he sought to recant that evidence on the basis that he did not know “exactly the date of my Will”. The husband could not recall if he made another Will in which he left his legal interest in property to either or both of the second and third respondents. Subsequently, the husband could not remember making a Will. The husband rates his memory as still good.
The husband denied that the F Street property was purchased as a house for himself and the wife. He lived there with the wife and also his sister and cousins. The second and third respondents did live there from time-to-time.
The second respondent gave evidence by affidavit and orally in relation to the F Street property. The second respondent referred to the third respondent having accompanied the husband to inspect properties prior to a decision being made in relation to the F Street property. In addition, the second respondent stated that he had a conversation with the third respondent in relation to the purchase of the property for less than $300,000.00 and a subsequent agreement for a purchase price of $295,000.00 during which she allegedly said to him:
“...we got the house. [The husband] and [the wife] can live there until they buy their own house. [H] can live here too when she comes to study in Australia next year”.
The second respondent proceeded to state that the F Street property was purchased in July 1992 by payment of 10% deposit, stamp duty and legal costs met by both he and the third respondent. In addition, a Westpac loan of $200,000.00 was obtained in the name of the husband and that “we paid the balance of the purchase price with our money”.
The balance of the affidavit of the second respondent refers to deposit of funds to meet the bank loan and the occupation of the property by the husband and wife, other relatives and boarders. In addition, the second respondent stated that both he and the third respondent stayed at the F Street property whenever they were in Sydney during the period June 1993 to January 2000.
During the course of his oral evidence the second respondent stated that he purchased the F Street property, albeit not in his name, as he did not have a current visa. Consequently, it was purchased in the husband’s name and became the home of the husband and wife. The second respondent permitted the husband to live in the house as he did not have his own property. He said he did not know about boarders.
The second respondent’s evidence also was that he paid the rates and deposited money in the account for that purpose. The second respondent was unaware of the number of boarders who occupied the property from time-to-time or the rent paid.
The third respondent (the husband’s mother) also gave affidavit and oral evidence. The relevant parts of it are referred to in subsequent paragraphs.
The third respondent states that in about 1991 she and the second respondent wanted to buy property close to the University 1 in areas close to it, such as Sydney Suburb 1 and Sydney Suburb 2. The purpose was to enable family and relatives to have accommodation during periods of study in Australia. The second and third respondents were living in Indonesia. They proposed that the property be purchased in the husband’s name.
The third respondent stated that she and the husband inspected the F Street property and ultimately purchased it in his name for $295,000.00 on 7 July 1992.
In order to fund the purchase price, a loan was obtained from Westpac for $200,000.00 and the balance, as well as stamp duty and legal costs were paid by the second respondent and herself from funds deposited to the relevant Citibank account. Quarterly payments of principal and interest of $12,500.00 were paid from money deposited, implicitly, by them to that account.
The third respondent provided further evidence of the occupation of the property by the husband, wife, their children and other family members as well as herself and the second respondent. In addition, the third respondent gave evidence of rental paid by boarders to the husband, who was permitted to receive and utilise it as he required financial assistance. Otherwise, he was required to deposit those funds into the relevant account to assist in payment of mortgage instalments.
During the course of her oral evidence, the third respondent stated that the F Street property was purchased in the husband’s name as they (the second and third respondents) did not have permanent residence.
With regard to the occupation of the property by the husband and wife, her evidence was that they were able to stay there “temporarily” as “it was her house”.
The wife stated in her primary affidavit that the F Street property was purchased in July 1992 for $295,000.00. The wife claims that “we financed the purchase of [Sydney Suburb 2] by obtaining an advance from the husband’s parents for the deposit, approximately ten per cent of the purchase price, and the balance of the purchase price was obtained by way of mortgage advance from Westpac”. The reference to “[Sydney Suburb 2]” is the same property.
The wife further stated that the F Street property became the family home in which she and the husband together with the two children lived as a family which continued until 2000. The wife stated that other family relatives also lived there for varying periods without payment of board or rent.
During her oral evidence the wife stated that she was not present when the mortgage amount of $200,000.00 was arranged. The wife also said that she was unaware of the source of part of the balance of the purchase price or payment of stamp duty. Indeed, she did not ask any questions about those matters at the time. In addition, she did not see documents in relation to the settlement of the purchase of the property. The wife also said that she was unaware of mortgage instalments being paid quarterly at the rate of $12,500.00. The wife agreed that she did not make any of such payments herself.
With regard to payment of mortgage instalments the wife’s evidence was that money was available for that purpose due to rent paid by boarders although she was clearly unaware of precise financial commitments in that regard.
Otherwise the wife’s evidence related to the occupation of the property by one or more relatives as well as by boarders, apart from the husband, the wife and their two children.
I accept the evidence in the cases for the husband, the second and third respondents that the second and third respondents paid $95,000.00 in part payment of the purchase price as well as stamp duty and legal costs. Given that the purchase price was $295,000.00, it follows that the second and third respondents paid more than 10% as otherwise alleged in the second respondent’s affidavit. There is no issue that the Westpac loan of $200,000.00 was obtained in order to pay the balance of the purchase price. Consequently, the amount that must have paid by the second and third respondents was $95,000.00. The evidence does not quantify the amount paid for stamp duty and legal costs.
I am satisfied that repayment of the Westpac loan of $200,000.00 was made possible to a large extent by the infusion of funds by the second and third respondents.

Conclusion

Part of the case for the husband; the second and third respondents is that the husband holds the title to the F Street property as trustee for the second and third respondents pursuant to a resulting trust.[2]
[2] (Husband) first respondent’s Points of Claim filed 11 March 2010 paragraph 15; second and third respondents’ Point of Claim filed 5 March 2010 para. 13.
The presumption is applicable:
“...in determining the beneficial ownership of property which is purchased and transferred into the legal ownership of persons other than in accordance with their respective contributions to the purchase price.”[3]
[3] Calverley v Green (1984) 155 CLR 242 at 265-266 per Deane J; Jacobs’ Law of Trusts in Australia 7^th ed., paragraph 1210 pp 240-241.
The critical time for relevant purposes is at the time when the property was purchased. In that regard Gibbs CJ in Calverley v Green held that:
“...the extent of the beneficial interest of the respective parties must be determined at the time when the property was purchased and the trust created.”[4] [Emphasis added]
[4] Ibid at 252
I have made findings that the purchase price was funded by payment of the deposit of $95,000.00 by the second and the third respondents who also paid costs and disbursements not quantified in the evidence. The balance of the purchase price was funded by a loan from Westpac secured by mortgage.
There is no issue that the loan was made to the husband who was the purchaser and consequently the sole registered proprietor.[5] I have accepted the evidence of the husband and the second and third respondents that the second and third respondents indirectly funded the payment of mortgage instalments due to the succession of deposits that they caused to be made into the relevant bank account. However, payment of mortgage instalments does not represent a payment of the purchase price. That has been made clear in the High Court’s judgment in Calverley v Green in which it was held that:
“...it is understandable but erroneous to regard the payment of mortgage instalments as payment of the purchase price of a home. The purchase price is what is paid in order to acquire the property; the mortgage instalments are paid to the lender from whom the money to pay some or all of the purchase price is borrowed”[6] [Emphasis added]
[5] (Husband) first respondent’s Points of Claim supra para. 14; second and third respondents’ Point of Claim supra at para. 11.
[6] Supra at 257 per Mason and Brennan JJ.
It has been observed that payment of a mortgage debt may “be relevant in determining accounts between the parties”[7]. However, neither the husband nor the second and third respondents sought relief on the basis of taking of accounts nor, indeed, did they or the husband rely upon an express trust or an implied trust. Consequently, those issues do not arise for determination.[8]
[7] Jacobs’ Law of Trusts in Australia. Supra para. 1211 p. 243.
[8] Jacobs’ Law of Trusts in Australia. Supra para. 1213 p. 247 (relevant to the consideration of a rebuttal of a resulting trust).
It is submitted on behalf of the wife that in the relevant circumstances centred upon the purchase of the property by the husband, the adult son of the second and third respondents, that a resulting trust is not presumed in favour of the second and third respondents, but rather the presumption should apply that the property was vested in the husband by way of advancement. It has been held that such a presumption applied as between a parent and an adult child.[9] In Nelson it was held that:
“...the operation of the presumption of advancement may be rebutted by the evidence of the actual intention, at the time of the purchase, of the parent or other person who provided the purchase money. Evidence may also be given to support the presumption of advancement”[10].
[9] Nelson v Nelson (1994) 33 NSWLR 740; (1995) 184 CLR 538.
[10] Ibid at 547 per Deane and Gummow JJ
I have concluded that a resulting trust is presumed in favour of the second and third respondents as to 32% of the equitable estate in the property represented by their payment of $95,000.00, being part of the purchase price. The payment of the deposit was the only payment made by them on account of the purchase price. The facilitating of a bank loan and subsequent funding of mortgage instalments by the second and third respondents are not relevant as those actions do not represent payment of the purchase price, the critical time being at the time of the purchase of the subject property.
In that regard, I followed the principles outlined by the High Court to which earlier reference has been made. I do not accept the proposition that the presumption of advancement applies.
My reason is that the actual intention of the husband and the second and third respondents was that the second and third respondents gain an interest in the property, albeit that at the time of purchase it was purchased by the husband.
On behalf of the second and third respondents the alternative relief sought by them is that the F Street property (as well as other property to which reference will be made) is held by the husband upon trust for them pursuant to a constructive trust.[11] It is of interest that the husband by his Points of Claim does not seek that alternative relief, notwithstanding that in other material respects the case conducted on his behalf was common to that conducted on behalf of the second and third respondents.[12]
[11] Second and third respondents’ Points of Claim supra para. 24
[12] supra
In the context of issues in these proceedings it is instructive to state the fundamental elements of a constructive trust. As has been pointed out “the trust is constructive in the sense that equity construes the circumstances by explaining or interpreting them; equity does not construct the trust, rather it attaches legal consequences to the circumstances”[13].
[13] Jacobs’ Law of Trusts in Australia. Supra para. 1301 p. 255; Giumelli v Giumelli (1999) 196 CLR 101 at 111.
In these proceedings it must not be overlooked that there is no contest between the husband and the second and third respondents in that the husband is not at issue with them in the sense of asserting a right which clashes with the interests of the second and third respondents as construed by them. Essentially, the relief sought in these proceedings on the basis of a constructive trust is in the context of property settlement proceedings as between the husband and wife in which the husband uses as a shield his contention that the beneficial interest in the relevant property is held by the second and third respondents. The second and third respondents for their part support that approach, albeit that the husband has not relied upon a constructive trust, whereas they have.
Consequently, in that context, it is not surprising that the categories of constructive trust identified and explained by the learned authors of Jacobs’ Law of Trusts do not apply to the facts alleged in these proceedings.[14]
[14] ibid at paras 1302-1308
The second and third respondents do not contend that so far as the husband is concerned “there is the imposition of a personal liability to account in the same manner of an express trustee”[15]. An example of a constructive trust in this sense is the imposition of personal liability upon a person “who dishonestly procures or assists in a breach of trust or fiduciary obligation by trustee or other fiduciary”[16]. It is also important to observe that the second and third respondents do not rely upon doctrines or remedies in the field of estoppel.
[15] Giumelli v Giumelli supra at 112.
[16] ibid at 112.
As in Giumelli:
“...nor does the present case itself turn upon what was identified by Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner as ‘the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.”[17]
[17] ibid at 113
Indeed, in these proceedings any alleged joint endeavour as between the husband and the second and third respondents has not failed in that the second and third respondents do not contend that contributions they have made were not intended on the basis that the husband should enjoy them. Their position is the reverse.
The High Court has cautioned that:
“...before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust.”[18]
[18] ibid at 113
In these proceedings “an appropriate equitable remedy” in that sense may have been reliance upon an express trust or to take accounts, neither of which was relied upon on behalf of the second and third respondents, or indeed the husband.[19]
[19] Second and third respondents’ Points of Claim supra.
It is fundamental that a constructive trust is remedial. For that purpose it seeks to bring to conclusion a situation where a defendant unconscionably refuses to hand over property or, effect restitution, in respect of persons whose liability is a personal one.[20]
[20] Jacobs’ Law of Trusts in Australia supra at para. 1310.

Indeed, the remedial nature of a constructive trust for the purpose of imposing a disentanglement of the property of the husband and the second and third respondents does not arise as their relationship has not ended.[21]
[21] Jacobs’ Law of Trusts in Australia supra para. 1311(explanation of the remedial nature of constructive trusts illustrated in circumstances materially different to the issues in these proceedings).
A caution was expressed by Deane J in Muschinski v Dodds regarding a constructive trust being predominantly remedial in that such a fact:
“...does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles.”[22]
[22] Muschinski v Dodds (1984-1985) 160 CLR 583 at 615.
Indeed, Deane J proceeded to hold that:
“...long before Lord Seldon’s anachronism identifying the Chancellor’s foot as the measure of Chancery relief, undefined notions of ‘justice’ and what was ‘fair’ had given way in the law of equity to the rule of ordered principle which is the essence of any coherent system of rational law. The mere fact that it would be unjust or unfair in a situation of discord for the owner of a legal estate to assert his ownership against another provides, of itself, no mandate for a judicial declaration that the ownership in whole or in part lies, in equity, in that other.”[23]
[23] ibid at 616
During the course of his reasons for judgment Deane J also held that “the principal operation for the constructive trust in the law of this Country has been in the area of breach of fiduciary duties”. Deane J proceeded to consider doctrines that may apply in other jurisdictions. Even in that context, Deane J held that the law as it applies in Australia must be one that recognises “an obligation on the part of the defendant to account for a benefit derived at the expense of a plaintiff”[24]. The case for the second and third respondents was not advocated on that basis.
[24] ibid at 617
It is important to recognise that when considering the principles outlined in Muschinski v Dodds there has been neither a collapse of a commercial or private venture nor, the failure of a personal relationship as between the husband and the second and third respondents which may have led to a situation in which a party or parties has an entitlement to insist upon realisation of property, repayment of contributions and distribution of any surplus.[25]
[25] ibid at 623 (by way of illustration)
The majority judgments in Muschinski v Dodds[26] were followed in Baumgartner v Baumgartner.[27]
[26] ibid
[27] Baumgartner v Baumgartner (1987) 164 CLR 137
The dispute between the parties in Baumgartner arose in relation to whether an equitable interest in property was created in favour of one of them as a result of the pooling of their financial contributions to the purchase price and subsequent repayment of a mortgage granted over the title in favour of the other party. It was held that to exclude the interest of the appellant in those circumstances amounted to “unconscionable conduct which attracted the intervention of equity and the imposition of a constructive trust”[28]. That approach was explained in the joint judgment of the Court by reference to pooling of earnings “for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child”.[29]. The Court then proceeded to determine the terms of the constructive trust.
[28] ibid at 149
[29] Ibid at 149
In my view the principles enunciated in Muschinski and Baumgartner[30] are not attracted to the facts in this case. The husband and the second and third respondents did not make contributions in the context of a joint relationship for the purposes of such a relationship. The context was by way of assisting the husband in order to fund mortgage repayments in essence to provide a property solely for the use and occupation of himself, the wife and their children, as well as the occupation from time-to-time of extended family members. The recognition of that situation was not reduced in writing at any time, in contrast to the provision of funds in the past by the second and third respondents to the husband, the subject of findings referred to in the paragraphs of this judgment dealing with the husband’s claimed liability of $1,000,000.00 to the second and third respondents.
[30] Ibid
In addition, the husband conceded that the Will that he had made left his property interests to the two children of the marriage which, by necessary implication, included his sole ownership of the subject real estate. That was entirely inconsistent with the case mounted in this litigation never before previously documented, that the second and third respondents held a beneficial interest in the property as a result of the husband being the trustee for them.
I am satisfied on the facts in these proceedings, a constructive trust has not been established as contended by the second and third respondents. That does not of course prevent appropriate weight being given to the husband’s indirect financial contributions to the property of the husband and wife due to the benefit of financial assistance provided by the second and third respondents, when later consideration is given to those matters for the purpose of making findings and consideration of orders that are just and equitable pursuant to s 79 of the Act.

Item 1 – G Street, Sydney Suburb 1 (“the former matrimonial home”)

The husband is the registered proprietor of the former matrimonial home. The former matrimonial home was purchased by him in 1994. The husband together with the second and third respondents contend that the husband’s interest is held by him subject to a resulting trust in favour of the second and third respondents, implicitly, on the basis that the second and third respondents hold the whole of the equitable estate.[31]
[31] Points of Claim of the husband filed 11 March 2010; Point of Claim of second and third respondents filed 5 March 2010.
The second and third respondents also contend that in the alternative, the husband’s title to the former matrimonial home is subject to a constructive trust in their favour, implicitly, in relation the whole of the equitable estate.[32] Interestingly, the husband does not claim that his title to the former matrimonial home is held subject to a constructive trust in favour of the second and third respondents. That is made clear by a perusal of his points of claim[33]. The respective claims made by the husband together with the second and third respondents to which I have referred are not admitted by the wife.[34] Indeed, counsel for the wife conducted her case on the basis that the declarations and relief sought by the husband together with the second and third respondents are opposed.
[32] ibid
[33] ibid
[34] Points of Defence of the wife filed 31 March 2010.
The primary affidavit of the husband is that filed 19 January 2011. In that affidavit he states that upon him finding the former matrimonial home and negotiating the price, he paid a holding deposit from the Citibank joint account of himself and the third respondent. The husband subsequently called the second respondent in Indonesia and gave him information in relation to the location of the former matrimonial home and anticipated rental. The husband alleges that the second respondent then said to him:
“OK buy the property as you have already put a $500.00 deposit. You purchase it in your name. Can you still obtain the funds from Westpac in […]? We still cannot buy it in our name as your mum and I are not there, so unless the law has changed put it in your name.”
The husband proceeded to complete the purchase of the former matrimonial home and then rented it for three to fours years, rental payments being deposited into his Westpac Sydney Suburb 2 account.
The former matrimonial home was purchased for $375,000.00 in 1994. The sole registered proprietor was and remains the husband. The property was mortgaged to Westpac as security for funds provided by it to enable payment of the purchase price to be made. The mortgage instalments were paid quarterly at the rate of $8,060.00 per quarter for a period of eight years. Ultimately, the mortgage was discharged in January 2002 utilising funds borrowed pursuant to refinancing of the existing mortgage loan in respect of the F Street property.
The former matrimonial home was reconstructed in the period 1998 to 2000 at a cost of $400,000.00 for the building and $200,000.00 for refurbishment. The rebuilt home included five bedrooms to accommodate the husband, the wife, their children, overseas students and the second and third respondents. The second and third respondents had the opportunity to live in the former matrimonial home for various periods as well as other family members. The second and third respondents resided in the former matrimonial home for approximately twelve months. Otherwise they have lived in Indonesian City 1.
Interior design as well as furniture were carried out and made in Indonesian City 1. Ultimately, a container of furniture was shipped from Indonesia to Australia and the furniture placed in the former matrimonial home. Costs were met by the second and third respondents.
During the course of his oral evidence the husband stated that the second respondent had trusted him to act on his behalf for business and any property in Australia. His further evidence was the reason to purchase property in his name on behalf of the second and third respondents was that they were not permanent residents of Australia. Although he subsequently stated that was one of the major reasons others being to train the husband in various respects, he subsequently confirmed that property was purchased in his name as the second and third respondents were not permanent residents of Australia.
The husband confirmed that so far as he was aware the second and third respondents gained permanent residency in this country in 1996.
The husband stated that he had made a Will leaving the former matrimonial home and the F Street property to the two boys. He was unable to say if he had made a Will leaving his interest, implicitly in relation to those properties, to his parents.
The further evidence of the husband was that the wife did not inspect the former matrimonial home before it was purchased and that the first time that she saw it was after the purchase was settled. Indeed, prior to purchase he and the wife did not discuss it.
The husband further stated that he collected the rent from the tenants of the former matrimonial home which was then used for living costs.
Affidavit and oral evidence was given by the second respondent. The second respondent’s relevant affidavit evidence included the following.
The second respondent denies the wife’s evidence that he and the third respondent advanced to the husband the deposit representing ten per cent of the purchase price. The second respondent stated “I say that we wanted an investment in Australia and the house was purchased in our son’s name on our behalf”. That statement, implicitly, refers to both himself and his wife, the third respondent.
The second respondent annexed bank statements demonstrating payment of the deposit and stamp duty totalling $49,869.00.
The second respondent also referred to funding of renovations, loan repayments and the construction of the new house in place of the demolished house. The second respondent annexed copy bank records by way of corroboration. The total of amounts paid in each of those categories is not given.
During the course of his oral evidence, the second respondent stated that the property was the home of the husband, wife and their children although the house “belonged to him”.
Affidavit and oral evidence was also given by the third respondent. The relevant parts of her affidavit evidence are in the following paragraphs.
The general proposition advanced was that “we proposed that the property be purchased in [the husband’s] name for us in Australia” implicitly, referring to both herself and the second respondent. In that regard the area designated was Sydney Suburb 1 and Sydney Suburb 2 due to its proximity to University 1 to which it was desired to send their children.
The third respondent then deposed that “the property at [G Street, Sydney Suburb 1] was purchased in [the husband’s] name in approximately April 1994 for $375,000.00”. The third respondent then referred to a bank loan for $200,000.00, its term and repayments as well as ultimate repayment. In addition, the third respondent stated that the deposit and part of the purchase price was paid from a particular Citibank account. Implicitly, the amount totalled the balance of the purchase price namely, $175,000.00. The amount paid on stamp duty and legal costs is not given.
In addition, the third respondent gave detail of funds contributed by her and the second respondent to the relevant Citibank account from which mortgage repayments were made.
The third respondent refers to a conversation that she had with the husband in 1998 concerning the rebuilding of the former matrimonial home to provide a larger house. The third respondent stated that she and the second respondent agreed as they wanted a larger house in which they could live with family members. In addition, she stated that she permitted the husband to use money transferred by her and the second respondent for payment of the building costs.
The third respondent then gave affidavit evidence of the cost of the new house, interior design and at one point during the course of construction she requested the husband to ensure that one room was available for the second respondent and herself.
The third respondent then gave evidence of the occupation of the former matrimonial home “rent free” by the husband, the wife and their children as well as by boarders.
During the course of her oral evidence the third respondent stated that the former matrimonial home “remained her house” and that she stayed there. Arrangements in relation to boarders were left to the husband and wife who collected the rent and used it for family needs.
The wife gave affidavit and oral evidence. The relevant parts of her affidavit evidence are set out in the following paragraphs.
With regard to the purchase of the former matrimonial home in 1994 in the husband’s name for $375,000.00, the funds for that purchase came from three sources namely, income from Business 1; board paid by students and “borrowings paid by Westpac”. Such borrowings were secured by mortgage. The mortgage instalments were paid by the husband from rent received.
The husband and wife inspected a number of properties for sale in the Sydney Suburb 1 and Sydney Suburb 4 areas including two or three inspections of the former matrimonial home. On one or two occasions the third respondent accompanied them. With regard to the former matrimonial home the husband informed the wife that “if we buy now it’s good for re-sale afterwards. We rent it first, we put in students and it pays the mortgage”. The wife expressed her agreement. The husband proceeded to negotiate the purchase.
The former matrimonial home was subsequently rented to four to eight students and rent paid was collected by the husband. The wife carried out cleaning work at the former matrimonial home on a weekly basis. The former matrimonial home was rented fully furnished. The wife and husband jointly planned the demolition of the house and building of the new house.
During the course of planning for those purposes they had meetings with the architect and they hired the builders. A carpenter/designer in Indonesian City 1 drew designs for built-in furniture. They approved the designs.
Between 1998 and 2000 the house was demolished and a new nine bedroom house constructed.
The wife further states that when the second and third respondents were in Australia they stayed in one bedroom at the former matrimonial home, the last occasion being in April 2009. Other family members of the husband have stayed there regularly.
During the course of her oral evidence, the wife gave evidence as set forth in the following paragraphs.
The wife states that she did not know that mortgage repayments were $12,500.00 quarterly as she herself did not make any of those payments.
With regard to the funding derived from a loan provided by Westpac, the wife stated that she did not know the amount as it had been arranged by the husband. The wife also stated that she was unaware of the source to enable the payment of the deposit. So far as the deposit is concerned, the wife stated that she was unaware of whether the second and third respondents provided the money for that purpose. The wife further stated that she received information from the husband that he arranged the mortgage.
The wife was unable to recollect savings that she had at the time of purchase of the former matrimonial home. None of those savings were applied towards the purchase price or stamp duty or legal costs.
The wife confirmed that she had indeed attended meetings with the architect. With regard to the builder the husband negotiated the price.
I accept the evidence that the second respondent (and implicitly the third respondent) paid an amount of $49,869.00 representing the deposit and stamp duty in relation to the purchase of the former matrimonial home. That payment amounts to thirteen per cent of the purchase price.
Applying the principles in relation to the establishment of a resulting trust previously referred to in this judgment, I find that the second and third respondents hold an equitable interest in relation to the former matrimonial home amounting to thirteen per cent of the current market value. The remainder of title remains undisturbed in the ownership of the husband.

Item 3 – B Street, Sydney Suburb 1 (“the B Street property”)

As with other real property each of the parties gave affidavit and oral evidence.
In his primary affidavit the husband stated that he had said to the wife “my parents are buying that house”. That statement was made in the context of the wife’s concern in relation to mortgage commitments.
During a telephone conversation with the second respondent in relation to the B Street property the second respondent said to the husband:
“...we want to buy the house. See if it is possible to purchase the property by only paying ten per cent of the price and use the [Sydney Suburb 2] property as additional collateral. I like the idea of keeping both properties, so we can earn an income when we retire.”
The purchase price was $750,000.00 and the husband stated that the deposit of $74,000.00 was paid from the bank account of the second and third respondents.
In addition, the affidavit evidence of the husband is that his parents withdrew a term deposit held in the name of his sister and then deposited it into their own joint account. In addition, the second respondent provided all the necessary information and documentation for the purpose of ultimately obtaining a mortgage loan to complete the purchase.
The husband also stated that the B Street property was sold in October 2010 for $1,012,000.00 and the net proceeds of sale deposited into a controlled monies account by the solicitor for the second and third respondents with the consent of the wife.
During the course of his oral evidence, the husband acknowledged that at the time of the purchase the second and third respondents were permanent residents in contrast to their lack of that status when the F Street property and the former matrimonial home were purchased. Nonetheless, it was purchased in the husband’s name he said because they were not in the country.

The husband declared the rental income in his income tax return for the year ended 30 June 2009. The rent was transferred by him to the account of the second respondent. The husband said that he received rent for tax purposes. The second respondent did not reimburse him for taxation. The husband said that he owes his father too much money for the husband to ask him for reimbursement of tax paid.
In the second respondent’s primary affidavit he stated that the B Street property was purchased in the husband’s name on “our behalf” implicitly referring to himself and the third respondent. He further stated that the sale price $750,000.00 with a deposit and stamp duty payable of $74,000.00 and $29,249.00 respectively from the joint account of himself and the third respondent. His affidavit evidence also is that the balance of the purchase price is funded by bank loans on the security of this property and the F Street property. Consequently, the total of funds contributed to the purchase price by the second and third respondents amounted to $103,249.00.
The second respondent’s affidavit evidence also is that following increasing mortgage interest rates and the need to finance the costs of these proceedings he and the third respondents requested the sale of the B Street property to minimise their losses. Ultimately, agreement was reached between the parties for the sale of the property in September 2010 and ultimate sale at auction on 16 October 2010 for $1,012,000.00. The sale was settled on 1 December 2010 and an amount of $520,998.35 was paid in discharge of the mortgage. The balance of the net proceeds of sale was paid into a controlled monies account in accordance with orders made 1 October 2010.
The oral evidence given by the second respondent did not touch upon the central features of his affidavit evidence to which I have referred.
The affidavit evidence of the third respondent is that following her familiarity with property in B Street and asking the husband to inform her if any properties which were for sale in that road, the husband apparently found the property and spoke to the second respondent about it. The third respondent stated that she heard the second respondent say to the husband:
“...you can buy the house for us. As we already paid off the other loan, we can use the rent from [F Street] and this house and put in a bit more of our money to pay the loan on this house.”
Ultimately, the property was purchased in the name of the husband for $750,000.00. The third respondent stated that the deposit and stamp duty were paid from the joint account of herself and the second respondent. In addition, $675,000.00 was borrowed from the bank with security over the B Street property, the F Street property and a term deposit in their joint names.
The third respondent also stated that she and the second respondent deposited funds in to the relevant bank account for mortgage payments.
The brief oral evidence of the third respondent did not depart from her relevant affidavit evidence.
The affidavit evidence of the wife is that the B Street property was purchased in the husband’s sole name for $750,000.00. Following the purchase the B Street property was rented until sold in November 2010. The rent being paid to the husband.
The wife’s further affidavit evidence is that following the auction sale in November 2010 for $1,012,000.00, settlement took place on 1 December 2010. On settlement $520,998.00 was paid in discharge of the mortgage and the net balance proceeds of sale of $383,932.00 was placed in a controlled monies account on behalf of the parties pursuant to court orders. The balance of the deposit after payment of agent’s commission of about $86,000.00 was paid into that. As at the date of her Affidavit which was sworn on 22 December 2010 the total amount in the controlled monies account was $469,937.00. The wife had previously lodged a caveat on the title to the B Street property which was withdrawn on settlement of the sale.
During her oral evidence the wife stated that she was unaware of the amount of the deposit paid or the source of it. Indeed, the wife stated that she was unaware of the purchase until subsequently when she saw the land tax bill. Rent from the tenants of the property was subsequently collected by the husband.
I find that the second and third respondents paid $74,000.00 as a deposit in part payment of the purchase price of $750,000.00 (although less than ten per cent) and stamp duty of $29,249.00 totalling $103,249.00.
The purchase price for the purpose of considering payment or part-payment which may give rise to a resulting trust “includes aggregate cost to the purchaser, elements of which are incidental costs, fees and disbursements”[35].
[35] Jacobs’ Law of Trusts in Australia supra at para. 1211.
The findings that I have made that the second and third respondents paid $74,000.00 as part of the purchase price of $750,000.00 and $29,249.00 for stamp duty totalling $103,249.00 represents eight per cent of the total of the purchase price and stamp duty namely, $779,249.00.
Applying the principles in relation to a resulting trust to which earlier reference has been made, I have concluded that the second and third respondents hold eight per cent of the beneficial interest in the funds deposited in the relevant controlled monies account. The husband is entitled to the remaining balance of those funds.

Whether a constructive trust is established in favour of the wife

This issue was raised for consideration by the legal representatives of the parties as referred to in paragraph 8 of this judgment. Written submissions were made. The issue arose in terms of whether or not any beneficial interest in property found to be established in favour of the second and third respondents may, in turn, be subject to a constructive trust in favour of the wife.
I have concluded that a constructive trust has not been established for the benefit of the wife for the following reasons.
In applying the relevant principles, which I have earlier summarised, I find that those principles are not attracted to the facts in this case. There was no joint endeavour between the wife and the second and third respondents. The wife’s contributions to each of the relevant properties did not reflect a joint enterprise with them. Consequently, unconscionability does not arise for consideration.
As with the other issues raised involving the second and third respondents, so far as a possible constructive trust is concerned, the dicta from the judgment of Deane J in Muschinski v Dodds in relation to a constructive trust being remedial but which does not provide “a medium for the indulgence of idiosyncratic notions of fairness and justice”[36] is apposite. Indeed, the relationships referred to in paragraph 89 hereof do not apply, as the relationship, so far as the wife was concerned, has been solely with the husband.

Items 7 and 8 - HSBC accounts in the names of the second and third respondents - $57,267.00 and $487.00

[36] Paras 86-88 of this judgment, supra.

These bank accounts are held in the names of the second and third respondents.
Much of the written and oral evidence concerned the movements in these accounts as well as others. Unfortunately, I was not assisted by a report by an accountant which may have traced those movements so as to identify the sources of deposits in particular. The cost of doing so may have been a factor, although with the benefit of hindsight, that cost may have been no greater than the costs incurred by the parties in dealing with the sources of deposits in various accounts, the purposes of such deposits and reconciliation of deposits with withdrawals, not to mention those who benefitted by the withdrawals. In addition, the evidence was prolonged due to the need to have interpreters.
In the circumstances, I accept the submission made on behalf of the husband that the evidence demonstrates there has been an intermingling of the funds of the husband, the wife, Business 1 with the accounts of the second and third respondents and, implicitly, their own deposits.
Written submissions were made on behalf of the husband, the wife and the second and third respondents in relation to each of the specific items in the light of the notations to Exhibit 1.
I have concluded that these items represent funds of the second and third respondents as I am not satisfied on the balance of probabilities with regard to specific amounts that should be otherwise attributed to the husband, the wife or Business 1. Consequently, these items will not be included in the calculation of the net property of the husband and wife.

Items 14 and 15

These items relate to two motor vehicles. The notes to Exhibit 1 indicate that the valuation is to be updated. I was not informed of any change to the valuation indicated in Exhibit 1.
Accordingly, the amounts stated for each of the two motor vehicles in Exhibit 1 will remain unaltered.

Items 17, 18 and 19 – shareholding in Company 4; Company 1 and Company 8

The evidence of the husband is that the money to fund his shareholding in these companies was sourced from the second and third respondents by way of investment on their behalf.
The husband was cross-examined in relation to his shareholding and its funding. I accept his affidavit and oral evidence which was consistent throughout and uncontradicted by other evidence. I make findings in accordance with that evidence.
Accordingly, Items 17 and 18 will be removed from the schedule of the calculation of the net property of the husband and wife. In reality an issue does not arise so far as Item 19 is concerned in that Exhibit 1 shows the value as being “nil”.

Item 20 – Shareholding in Company 5

The issue early in the litigation as to whether or not the husband held a beneficial interest in his shareholding became academic in view of the value ascribed to it being “nil”.

Add-backs

Item 23 - $297,000.00 received by the husband, second and third respondents

I accept the evidence of the husband that this amount was paid to the second and third respondents representing a return on their investment.
Accordingly, the amount of $297,000.00 will not be added-back for the purpose of determination of the net property of the husband and wife.

Item 24 – wastage by husband - $560,000.00

The husband conceded in his evidence, particularly during the course of cross-examination, that this amount was wasted by him due to his gambling activity including an online gambling service as well as failed business ventures.
I do not accept the submissions made on behalf of the husband that the losses are irrelevant as “monies lost were not matrimonial assets or raised by encumbering matrimonial assets”. The first point to be made is that neither the provisions of the Act nor any relevant judgments to which I may have been referred define “matrimonial assets”, as opposed to other assets or property. In my view, it is well established that all property of the parties, whether real or personal, is relevant for the purposes of the issue of “waste” or indeed any other issue which must be considered for the purposes of making orders that are just and equitable. Indeed, I was not referred to any judgment that supported the submission made on behalf of the husband.
I have concluded that on the husband’s own evidence, with concessions against interest, his actions which created the subject losses was due to his financially reckless actions or negligent financial conduct.[37] As a result, the amount of $560,000.00 will be included in the determination of the net property of the husband and wife.

Liabilities

[37] Browne v Green (1999) FLC 92 – 873 at 86,360 – 86,361 (review of relevant authorities).

Item 25

I found that the second and third respondents hold an interest pursuant to a resulting trust equal to thirty-two per cent of the value of the F Street property. Consequently, the husband’s remaining interest amounts to sixty-eight per cent.
It follows that the amount secured by the mortgage for the purpose of calculation of the net property of the husband and wife will be shown as sixty-eight per cent of the amount secured by the mortgage namely, $212,840.00 (68% of $313,000.00).

Item 26 - $1,000,000.00 indebtedness – the husband and second and third respondents

This alleged indebtedness is a contentious issue in the proceedings.
The husband’s affidavit evidence (absent of course those parts that were struck out) is that the second respondent and himself signed a “debt agreement” on 2 May 1990. Annexure “B” is a translated copy of that document. The substance of the “debt agreement” dated 2 May 1990 entered into in Indonesian City 1 is the acknowledgement by the husband of a debt to the second respondent of RP 1,750,000.00 for the purpose of purchasing twenty per cent of shares in Company 10. It also provides for repayment of “this loan without interest” at the time of a return from the ownership of those shares. A further condition of the agreement is that in the event of “a loss or even a failure of [Company 10]” then the husband is responsible for repayment immediately or, in accordance with “a timetable” agreed upon by the parties.
The husband’s affidavit evidence is that in 1998 he received the equivalent of $90,000.00 for his share in the company. The husband further stated that “these funds remained in Indonesia and were later used for financing my return visits in Indonesia”. No explanation is given in his affidavit as to the reason for him not complying with the debt agreement in that, pursuant to its terms, the husband was required to make immediate repayment of the loan or, in accordance with an agreed timetable. Evidence was also not given in the affidavit as to whether there was in fact an agreed timetable as between himself and the second respondent at any stage.
The evidence of the husband in his affidavit is that following his permanent move to Australia, the second respondent required him to enter into another deed by way of confirmation of the terms of Annexure “B”. A copy of that subsequent document dated 10 November 1994 which in reality is an acknowledgement, rather than a deed, as there is only one party to it namely, the husband who executed it in Sydney.
The document being Annexure “D” departs from the earlier document being Annexure “B” in that it acknowledges an advance to the husband of $1,000,000.00 from not only the second respondent, but from both the second and third respondents and further that repayment would be made to them “on demand”, as opposed an agreed timetable. No evidence is given in the affidavit to explain those variations to the earlier document.
The husband sets out his current property including liabilities as at the date of his Affidavit which was sworn on 18 January 2011. Whilst he provides details of various liabilities it is noticeable for the absence of any reference to the disputed alleged indebtedness of $1,000,000.00 to the second respondent or the second and third respondents in accordance with the documentation to which I have earlier referred. The husband’s written evidence is further complicated by earlier Financial Statements sworn by him and which are in evidence. Exhibit 6 is a copy of the Financial Statement sworn by the husband on 8 December 2008 settled by his solicitor. In that document the husband contends that his liabilities are “nil”. No reference is made to the alleged indebtedness of $1,000,000.00 or indeed any other amount alleged to be owing to the second respondent or the second and third respondents.
Exhibit 4 is a copy of a Financial Statement sworn by the husband on 1 February 2010. In that document he alleges that he owes the second and third respondents an estimated $1,000,000.00.
For reasons that were not clarified in the evidence the husband swore a further Financial Statement seven days after the last of such documents namely on 8 February 2010. That document also alleged indebtedness to the second and third respondents estimated at $1,000,000.00.
I granted leave to lead brief oral evidence in relation to the first sentence of paragraph 12 of the husband’s primary affidavit which had been struck out. However, although the husband did give oral evidence in chief, no evidence was adduced or sought to be adduced pursuant to the leave that was granted.
During the course of his oral evidence the husband’s attention was drawn to the absence of any current alleged liability of $1,000,000.00 in his primary affidavit. The husband’s answer was that he still owed them about $1,000,000.00 and he is responsible for it.
Notwithstanding the husband’s large alleged indebtedness to which I have referred, his oral evidence is that he borrowed $100,000.00 to purchase a Mercedes Benz in 1996 which cost $105,000.00 or $106,000.00, the balance being paid by him by instalments to the vendor. He subsequently satisfied the loan over a period of five years. In addition, in about 2008 he purchased a BMW motor vehicle for $50,000.00 repaid by instalments to the vendor.
The husband’s oral evidence was he did not repay the second respondent to any extent rather than purchasing a Mercedes Benz for $100,000.00 as he “was very young” at the time. His age then was 32 years. The husband acknowledged that he took “advantage of the generosity of my father”. The husband did not give any evidence to explain the appropriateness of purchasing a second motor vehicle, being a BMW notwithstanding his ownership of the Mercedes Benz and his responsibility for the ongoing indebtedness, the subject of the review of this evidence.
The affidavit evidence of the second respondent in relation to this issue Annexure “B” to that affidavit is a copy of the loan agreement between himself and the husband. It is a duplicate of Annexure “B” to the husband’s primary affidavit to which earlier reference has been made. The second respondent explained the variation of that document in terms of “the acknowledgement” made 10 November 1994 referred to in the husband’s primary affidavit whereby the lenders are described as the second and third respondents. He considered it prudent to do so in case anything happened to him and the money which had been lent in fact belonged to both himself and the third respondent. He explained that the loan was documented again, that is on 10 November 1994, in Australia as it was the intention that the value of the loan be repaid in Australian dollars as the husband had intended to carry out business in Australia. Otherwise, the affidavit is silent as to the lack of any demand for repayment of the whole or any part of the indebtedness or future intention to do so. The lack of such evidence is remarkable considering that the Points of Claim of the second and third respondents contend that the second and third respondents demanded repayments from the husband in or about 1998; that the husband failed to pay the sum demanded and that in 1998 there was agreement between the parties that monies were repayable by him when he was in a financial position to do so.[38] Points of Claim are, of course, not evidence.
[38] Point of Claim of second and third respondents filed 5 March 2010 paras 30-32
During his oral evidence-in-chief the second respondent said that he had told the husband “you can use the money to buy the shares” referring to a business enterprise. The second respondent further gave evidence-in-chief that the husband was to use the money for the business and “if he made profits he will repay him”. The second respondent then proceeded to say that even if the husband did not make a profit then the money was to be repaid. The husband had said to him “no matter what, he will repay the money”. The second respondent replied “yes you must repay, that is your responsibility”.
During the course of his oral evidence, the second respondent said that the husband borrowed the money from him as he did not have much money at the time. The loan was made without interest and the husband had stated that should his business enterprise do well then he would repay the money. He further stated that the money that was borrowed was actually from the second respondent and the third respondent although the document only referred to the second respondent because the loan was between him and the husband.

The third respondent did not give evidence in relation to this issue and in particular did not given evidence in support of the Points of Claim filed on behalf of the second and third respondents to which earlier reference has been made.
The wife did not give evidence in relation to this issue.

Conclusion

I accept the evidence of the debt agreement dated 2 May 1990, the subsequent “acknowledgement” made 10 November 1994 and the evidence surrounding those documents to which I have earlier referred. I find that there is valid indebtedness by the husband to the second respondent or the second and third respondents. However, I have concluded that such indebtedness is not likely to be enforced and as a result no weight will be given to it for the purposes of calculation of the net property of the husband and wife for the following reasons.
The sum has been in existence for 21 years. During that time it has not sought to be enforced by demand or in accordance with an “agreed timetable”. During that period there have been a number of significant financial transactions involving the husband, the second respondent and the third respondent during the course of which the indebtedness was apparently ignored. That was heightened even further by the actions of the husband in not applying $90,000.00 by way of reduction of his indebtedness being the amount that he received in 1998, earlier referred to. In addition, he felt free to purchase a Mercedes Benz motor vehicle for $106,000.00 approximately, with liability for repayment of the loan of $100,000.00 for that purchase which he obviously considered had greater priority than making any repayments in reduction of the indebtedness to the second and third respondents. All of those matters are in the context of a close personal and financial relationship between the husband and the second and third respondents from which I infer that they were aware of and gave tacit approval to the husband’s financial transactions to which I have referred or, at the least were prepared to ignore the long-standing indebtedness of $1,000,000.00.
Indeed, on the evidence before me the question of the indebtedness only appears to have come into sharp focus, so far as the husband and the second respondent are concerned, once these proceedings had been instituted.
I take guidance in the approach that I have undertaken to this issue from the dicta in the judgment of Nygh J in Af Petersens & Af Petersens as follows:
“It is fairly common in this Court to meet a situation where a parent has made a loan to a child which is in all respects legally enforceable, but which is not in fact enforced and would not really be expected to be enforced. It is no doubt an “obligation” but if the obligation is not likely to have to be met, it should not be taken into account.”[39]
[39] (1981) FLC 91-095 at 76,669; approved in Prince & Prince (1984) FLC 91-501 at 79,076.

The relevant property interests of the second and third respondents

In accordance with my determination of the beneficial interest held by the second and third respondents pursuant to a resulting trust in relation to the F Street property; the former matrimonial home and the B Street property net sale proceeds held in a controlled monies account, those interests equate to the following:
(a)The F Street property – 32% $264,000.00 ($825,000.00 x 32%) subject to 32% of the mortgage amount.
(b)The former matrimonial home – 13% $221,000.00 (1,700,000.00 x 13%).
(c)The B Street property (controlled monies account) – 13% $61,092.00 ($469,937.00 x 13%).
In each instance I have rounded off the relevant percentage to the nearest number.

Revised property interests of the husband

It follows from my determination of the beneficial interests in property held by the second and third respondents that the consequential value of the husband’s legal estate in the relevant properties is as follows:
(a)The F Street property – $561,000.00 ($825,000.00 - $264,000.00).
(b)The former matrimonial home – $1,479,000.00 (1,700,000.00 - $221,000.00).
(c)The B Street property (controlled monies account) $408,845.00 ($469,937.00 - $61,092.00).

Revised property of the husband and wife

Consistent with my application of equitable principles and findings, I have determined that the net property of the husband and wife is as follows.

Ownership Description

Assets

1. H G Street, Sydney Suburb 1 $1,479,000

2. H F Street, Sydney Suburb 2 $561,000

3. H B Street, Sydney Suburb 1 – proceeds of sale $408,845

4. H & W Business 1, Partnership $271,733

5. W Monies in account WBC $5,000

6. H Monies in account $2,000

7. Omitted

8. Omitted

9. HSBC Bank Account No. … ; … Branch in the name of the husband NIL

10. H HSBC Bank Account No. in the name of the husband $2,000 AUD

11. H HSBC Bank Account No. … NIL

12. H Westpac Bank Saver Account BSB: … Account No. … in the name of the husband NIL

13. H Westpac Bank BSB …, Account No. … in the name of the husband NIL

14. H Mercedes motor vehicle (…) $8,000

15. H BMW motor vehicle (…) $25,000

16. W Kia motor vehicle (…) $2,000

17. Omitted

18. Omitted

19. Omitted

20. Omitted

21. W Household contents $2,000

22. H Household contents $2,000

Total $2,768,578

Addbacks

23. Omitted

24. Wastage by Husband $560,000

Total (+560,000.00) $3,328,578

Liabilities

25. H Mortgage secured over F Street $212,840

26. H Omitted

27. W Credit Cards $30,000

28. H Credit cards $88,000

29. H Child Support arrears NIL

Total $330,840

Net property excluding superannuation $2,997,738

Superannuation

Member
Name of Fund
Type of Interest

30. H Super 1 $19,514

31. W Super 1 $18,848

Total $38,362

Net property including superannuation $3,036,100

Business 1

The husband and wife are the registered proprietors of the business carried on under the name of “[Business 1]” since its registration in or about 1994.
The business activity that has been carried out is the income earned from “[a role in the education industry]”[40].
[40] Husband’s Point of Claim supra para. 10.
Each of the husband and wife contends that he or she carried out more work than the other over the years in the development and maintaining of the business activities both from the business premises initially at their home and subsequently at Sydney Suburb 3 as well as their liaison with the appropriate related offices in Indonesia.
I prefer the evidence of the wife to that of the husband wherever it conflicts so far as this issue is concerned. I was impressed by the wife as a witness of truth who endeavoured to answer questions without obfuscation and consistently. The wife impressed me as a sincere witness endeavouring to give truthful answers without embellishment or seeking to deflect answering questions by criticism of the husband.
The wife’s manner of giving her evidence and the nature of the evidence that she gave, whilst under cross-examination to which I have referred, was in stark contrast to the husband.
I found the husband to be an unimpressive witness who at times chose to criticise the wife in one way or another rather than simply answering the question or otherwise was at times evasive and prevaricated prior to giving his answer. The husband’s non-disclosure of his interest in a commercial building in Indonesian City 1 could not be excused on the basis that the issue had not been put forward by the wife or was not flagged as part of her case or that the matter was introduced during the course of cross-examination of the second respondent as submitted in the submissions in reply on behalf of the husband. The fact is that the husband had a duty to make a full and frank financial disclosure. That is not only a fundamental obligation for all parties in litigation seeking financial orders in this Court, but that the husband has sworn to his awareness of that obligation as appears on page 1 of his Financial Statements. I do not accept the submission that inferentially this interest, regardless it what it might be valued at, was something which slipped his mind.
Otherwise, in relation to credit I accept the written submissions filed on behalf of the wife dated 23 May 2011.
I have accepted the evidence of the single joint expert Mr S regarding the value of the business. Without an audit of the business activities over several years, it is not possible to be reasonably satisfied on a tracing exercise in relation to all sources of income and its application both in Australia and Indonesia including but not limited to whether or not excess funds have been generated beyond the normal level of commissions let alone the intermingling of income received with bank accounts controlled by the second and third respondents or either of them.
I am satisfied that the husband did make contributions to the establishment and maintenance of the building but that the wife’s contributions subsequent to their separation in the conduct of the business and all aspects of it well exceeded those made by the husband. I accept the evidence of the wife’s corroborating witnesses.

Contributions

I make the following findings in relation to the financial and non-financial contributions of the husband and wife including contribution to the welfare of the family in the role of homemaker and parent.

The wife

There is no dispute that the wife did not have any significant assets at the time of the marriage.
I accept the wife’s evidence that she carried out all aspects of the care and upbringing of the two children and for a substantial period of time especially after 2006 having to coordinate their care with the responsibilities that she carried out for Business 1.
In addition, I accept the wife’s evidence that in relation to the former matrimonial home, she carried out weekly cleaning prior to the demolition of the old home and construction of the new home. In addition, the wife attended upon the architect with the husband from time-to-time as well as the landscape gardener to ensure that the design and appropriate features met with their approval.
The wife also tendered to payment of rates and land tax for one or other of the properties including the property in H Street, Sydney Suburb 1. The wife also collected rent from the tenant of the last mentioned property and handed it over to the husband.
The wife became progressively more substantially engaged in the development and the maintaining of all aspects of the business activities of Business 1 as detailed in her affidavit sworn 26 December 2010. The work in that regard and the responsibility for it increased since early 2006 and for some years the wife has managed and been engaged in the business activities from 8.45am until 6.00pm Monday to Friday each week.
The parties have had boarders from time-to-time of different numbers in the former matrimonial home and I accept the wife’s evidence of the nature and extent to which she has attended to them.

The husband

The husband contends in his primary affidavit that at the commencement of cohabitation his assets included bank funds $10,000.00; motor vehicle $18,000.00; jewellery $10,000.00 and interest in Company 10 $200,000.00. Those amounts are expressed on an estimated basis.
I accept the husband’s evidence that he had property as he described. I do not accept that it had the values which he attributed. My reasons are that regardless of the challenge to that evidence, I do not accept it on an uncorroborated basis given my findings as to his credibility as a witness which was largely unsatisfactory for the reasons previously given. The husband’s general financial circumstances at all material times have been so interwoven and intermingled with those of the second and third respondents that in relation to property of significance in the context of these proceedings I am not satisfied on the balance of probabilities that the husband’s evidence should be accepted without independent or objective corroboration. In any event, at the relevant time the husband’s property in terms of even the values contended by him were dwarfed by the indebtedness which he claims he had to the second respondent of one million dollars.
Subsequent to the marriage the husband made the following contributions.
The husband carried out inspection work and liaised with the second and third respondents for the purpose of funding the purchase of the F Street property, the former matrimonial home and the B Street property.
Substantial funds were made available by the second and third respondents to fund mortgage instalments in relation to bank loans secured by mortgage over each of the parcels of real estate. The provision of such funds amounted to indirect financial contributions made by the husband.
In addition, the husband was engaged with the assistance of the wife in the establishment, development and maintaining of the business activities of Business 1 both in Australia and Indonesia.
The husband also liaised with his parents and persuaded them to fund the construction and furnishing of the former matrimonial home. The funding provided by the second and third respondents for those purposes are also indirect financial contributions made by the husband.
Whilst the husband did carry out a role in what he describes as “my family’s Australian investments”, as he has emphasised repeatedly, such investments were on behalf of the second and third respondents and indeed the shareholding in the relevant companies was held by him on their behalf. Consequently, his activities do not represent a contribution to the property of the husband and the wife.
The husband’s primary affidavit contains little evidence of the husband’s contribution to the welfare of the family in the role of homemaker and parent. However, I accept his evidence of his involvement in their care as detailed in paragraph 107 of that affidavit.

Assessment of contributions

I have assessed the contributions of the husband and wife both direct and indirect as well as in the role of homemaker and parent in the proportions of seventy per cent in favour of the husband with the remaining thirty per cent of favour of the wife for the following reasons.
The approach that I have applied is a global assessment being in accordance with the conduct of the proceedings by counsel and their helpful submissions. In that regard, no distinction was sought to be drawn between the parties’ contributions to their superannuation entitlements and contributions to other property.
The wife made her primary contribution in the role of homemaker and parent, assisted in that regard to a minor degree by the husband. Indeed, as previously referred to, his primary affidavit does not provide evidence beyond that assessment.
The wife also made financial contributions by her work in the establishment with the husband of Business 1 and continuation of its activities over many years. In addition, the wife made indirect financial contributions in terms of cleaning of property and attending to boarders from time-to-time.
The wife’s contributions in all respects, subsequent to the separation of the parties, have increased due to the corresponding reduction in contributions made by the husband during that time.
However, the nature and scale of the husband’s indirect financial contributions due to funds provided from time-to-time by the second and third respondents and liabilities to be met have been at such a scale that without such funds relevant real estate, in particular, could not have been maintained. In my view, the weight that must be attributed to such indirect financial contributions is such that it substantially exceeds the weight to be given to the wife’s contributions.

Relevant s 75(2) matters

The husband and wife are 47 and 42 years of age respectively.
They are both in good health.
In his Financial Statement sworn 8 February 2010, the husband claimed that his income was $1,697.00 per week gross subject to tax of $339.00 per week resulting in $1,358.00 per week net. His principal source of income was $1,615.00 per week gross from Business 1 and otherwise $82.00 per week paid by Company 4.
The written submissions on behalf of the husband do not make any submissions in relation to the income and property and financial resources of either of the parties nor their physical and mental capacity for appropriate gainful employment other than that the husband no longer holds a property services licence and that the wife has an improved income earning capacity due to her work with Business 1.
The written submissions on behalf of the wife incorporating the case outline document emphasises the husband’s ownership of real property and commercial interests and the financial resource represented by funds made available from time-to-time by the second and third respondents.
During the course of his oral evidence the husband stated that the only money that he earned is from the dividend that is received from Business 1. He further stated that receives about $700.00 every three months from Company 4.
The husband has the property and liabilities described in paragraph 210. In addition, the husband is the proprietor of an interest in a commercial building in Indonesian City 1, that interest being a “right to use” building.
By deed of sale dated 12 February 1998 the second respondent purchased the above mentioned interest for 175 million rupiah. In 1998 that interest was transferred to the husband.
The ownership of the interest only arose in the evidence during the course of cross-examination of the second respondent. Neither the husband nor the second respondent had previously disclosed this interest in terms of transfer by the second respondent to the husband. By leave, further affidavit evidence was adduced on behalf of the husband and the second respondent in order to complete the evidence on this subject.
Notwithstanding that the husband has had an obligation to make a full and frank financial disclosure as required by the Rules and his awareness drawn to that obligation on page 1 of his Financial Statement, the husband did not disclose this particular interest until after the issue had been first raised in the circumstances to which I have referred.
There is an absence of evidence of the current market value of the interest held by the husband in the Indonesian City 1 commercial building. Absent evidence to the contrary I find that the interest has a value which reflected its purchase price of 175 million Rupiah.
I am not satisfied that the husband has made a full and frank financial disclosure of his financial affairs. In that regard, I find that whilst the husband claimed that he borrowed money necessary for the purpose of discharging arrears of child support of $11,887.00, there is no reference to such borrowings in his affidavit material. In addition, his evidence in relation to the indebtedness of $1,000,000.00 to the second and third respondent was inconsistent. Findings have been made by me in that regard.
The husband did not give any prior evidence in his affidavit that he was still operating a few companies as he claimed in his oral evidence.
The husband did not tender appropriate documentation relating to the sale of property at J Street, Sydney Suburb 3, notwithstanding that it was an issue of controversy in the proceedings. The husband simply relied upon the documents not being in his possession.
Disturbingly, the husband conceded that he had been meeting credit card liabilities by drawings from the second respondent’s account, although he had not informed the second respondent.
The husband’s evidence in relation to payment of tax on rent received from the F Street property, I found to be unconvincing and in particular his oral evidence that he was “probably” paying such tax on behalf of the second respondent.

Although the husband at first claimed a lack of recollection of any overseas bank accounts, he subsequently admitted to having such an account, although never previously disclosed to the wife or to the Court. No documents were produced in answer to the call that was made for them.
The husband’s evidence in relation to two HSBC accounts in Singapore was unconvincing. Similarly, transactions utilising his credit card on behalf of friends, who then later reimbursed him, did not have the ring of truth.
A disturbing feature of the evidence, in relation to Business 1, was that on 4 February 2011 the date following successive days of the hearing, without notice, the husband’s relatives purported to terminate arrangements between Business 1 (Indonesian City 1) and the Sydney office. The husband had admitted that he had not taken any steps to communicate with those running the Indonesian City 1 office, although, he together with the wife, has been a proprietor of that business and continues to hold that interest.
I find that the husband has historically had the benefit of a financial resource represented by the availability of funds from the second and/or third respondent over many years and utilised in such a way that there have been intermingling of their funds with those of the husband and indirectly the wife. In addition, the second and third respondents made available to the husband the equivalent of $1,000,000.00 many years ago, the subject of earlier findings. I have also found that no demand was made for payment.
I find that the husband has the capacity to be engaged in gainful employment in the operation of companies with commercial interests albeit that the evidence does not allow me to be more specific. The husband has been very experienced in the business activities of Business 1 to which earlier reference has been made. He has a capacity to be engaged in employment in the conduct of a similar business whether in Australia or in Indonesia. In addition, the husband has been engaged in commercial investments at the behest or on the behalf of the second and third respondents.
The wife’s income as disclosed in her Financial Statement sworn 10 December 2010 amounts to $1,652.00 per week gross. The principal source of that income is derived from Business 1 amounting to $1,455.00 per week gross. The wife’s income tax is $343.00 per week. Consequently, the wife’s net weekly income is $1,309.00 per week.
The wife holds property as described in paragraph 210. The wife does not otherwise have financial resources.
The wife’s capacity to earn income is in her current self-employment as a proprietor of Business 1 conducting the business activity to which earlier reference has been made.
The wife has the primary care of the two children aged 16 and 14 years respectively.
The husband and wife have superannuation entitlements described in paragraph 210.
The parties have enjoyed a reasonable standard of living.
The husband makes irregular child support payments and has been in arrears for an amount of $3,000.00.

Assessment of relevant s 75(2) matters

The weight which I give to my findings in respect of relevant matters pursuant to the provisions of s 75(2) is such that an adjustment is made in favour of the wife by ten per cent of the net property of the husband and wife for the following reasons.
The husband’s financial circumstances are vastly superior to those of the wife. He holds valuable real estate subject to the minority interests of the second and third respondents. Such real estate is also income producing due to boarders residing there from time-to-time.
In addition, the husband has available to him the very significant financial resources represented by the financial interests of the second and third respondents. As they themselves have emphasised in their evidence, significant funds have been made available by them for the benefit primarily of the husband with indirect benefits of course for the wife, the two children and for all members of the family of the second and third respondents including themselves.
The wife, for her part, has been reliant upon income from Business 1 and otherwise income from time-to-time from boarders. However, the wife does not have significant property nor does she have other financial resources available to her with the exception of small superannuation entitlements similar to those of the husband.
In addition, the wife will have the ongoing care of the two children albeit that they are teenagers with only erratic and unreliable payments of child support by the husband.

Conclusion

Evidence was given in relation to a myriad of matters arising from the intermingling of the financial affairs of the husband and the second and third respondents and the disposition of money earned in Business 1. I have not attempted to make findings of fact in relation to each and every factual issue raised or referred to in that evidence, as much of it was not relevant to the ultimate determination of description and value of property and contributions made by the husband and wife as well as evidence relevant to the trust issues raised to the extent to which evidence was relevant. Unfortunately, at times it lacked demonstration in a coherent, logical way particularly so far as tracing of money and its application is concerned flowing through various back accounts at times by way of international transactions. As previously mentioned, the resolution of issues was handicapped due to the absence of an expert’s report which could have provided tracing of all relevant transactions including the receipt and use of funds.
Accordingly, in those circumstances I have followed the approach stated as appropriate by the High Court in Whisprun Pty Limited (formerly North West Exports Pty Limited) v Dixon in the joint judgment of Gleeson CJ, McHugh and Gummow JJ as follows:
“A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”[41]
[41] (2003) 200 ALR 447 at 464; see also Customs & Excise Commissioners vA (2003) 2 All ER 763 at 753; Digi-Tech (Australia) v Brand & Ors. (2004) NSW 62 IPR 184 at 228.
I have determined that on the combination of the assessment of contributions and adjustment in favour of the wife for relevant s 75(2) matters, that the wife receive on that basis forty per cent of the net property of the husband and wife. That net property amounts to $3,036,100.00 including superannuation.
Accordingly, 40% division in favour of the wife amounts to $1,214,440.00.
I have concluded that such a division is indeed just and equitable having regard to not only the assessments of contributions and relevant s 75(2) matters but also the period of cohabitation of approximately 15 years commencing on the marriage of the husband and wife in 1992, the care and upbringing of the two children of the marriage and the various endeavours in which the husband and wife were engaged.
I have also taken into account the practical implications of that conclusion for the purpose of making orders that are just and equitable.[42] The effect of such proposed orders is as follows.
[42] Elsey v Elsey (1997) FLC 92-727 at 83,799
Wife to receive/retain

Property

Business 1 $271,733

Money in account WBC $5,000

Kia motor vehicle $2,000

Household contents $2,000

superannuation $18,848

Lump sum payable by husband $944,859

Total $1,244,440

Less liabilities

Credit cards $30,000

Total $30,000

Net property $1,214,440

The husband does not have funds or property which can be immediately realised to pay to the wife the lump sum of $944,859.00. I have found that his interest in the proceeds of sale of the B Street property amounts to $408,845.00. I will make an order that all of the parties including the second and third respondents do all things necessary to ensure that payment is made to the wife of $408,845.00 from the controlled monies account on or before 5.00 pm 14 July 2011 by payment to her solicitors or as she may otherwise in writing direct.
Accordingly, the balance of the lump sum payable by the husband to the wife will then be $536,014.00 ($944,859.00 - $408,845.00). The husband will need a reasonable time within which to seek to obtain finance for that purpose. Whilst no submissions were made directly on this point, I consider that the period of three months is reasonable in the circumstances.
In view of the apparent antagonism between the second and third respondents and the husband to the wife, as emerged from the evidence, it is not realistic to expect that the wife may continue to reside in the former matrimonial home with the two children once all other orders have been complied with by the husband. I have come to that conclusion notwithstanding that no order was sought by the husband for the wife to vacate the former matrimonial home as part of the suite of orders sought by him as set forth in the written submissions of counsel for the husband.[43]
[43] Written submissions dated 4 May 2011 p. 28.
Consequently, I will make an order that the wife together with the two children vacate the former matrimonial home on or before the expiration of eight weeks from the date of payment. That will allow her reasonable time within which to obtain alternative accommodation. In the meantime, the wife will continue to have exclusive occupancy of the former matrimonial home with the two children and be able to receive such income, if any, payable by boarders on condition that she promptly pay all council rates, water rates and other outgoings in relation to that home. That will avoid accounting having to take place as between her and the second and third respondents which, given their strained relationship, would raise the potential of further litigation.
I will make further orders for the Kia motor vehicle, currently used by the wife, be transferred by the husband to the wife. In addition, an order will be made for dissolution of the partnership of the husband and wife in Business 1 and the transfer by the husband to her of his interest in that business on or before 5.00pm 14 July 2011. The wife has been the sole party conducting that business for a considerable period of time. It has been and is likely to continue to be the wife’s sole source of income of any real significance for the foreseeable future necessary not only for her support but also the two children of the marriage. The husband sought a similar course of action.[44]
[44] Written submissions by counsel for the husband ibid.
The usual declaration will be made in relation to all items of personal property and superannuation entitlements of the husband and wife subject to other orders being made. In the event that any of the parties do not comply with the orders to be made, I will grant liberty to apply for enforcement of orders upon seven days written notice being given. The husband should be aware that in that regard, the wife may make an application for an order to be appointed his trustee for petition and sale of his interest in the F Street property or the former matrimonial home as she may be advised.

I certify that the preceding two hundred and eight six (286) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 30 June 2011.

Associate:

Date: 30 June 2011

Property
Business 1	$271,733
Money in account WBC	$5,000
Kia motor vehicle	$2,000
Household contents	$2,000
superannuation	$18,848
Lump sum payable by husband	$944,859
Total	$1,244,440
Less liabilities
Credit cards	$30,000
Total	$30,000
Net property	$1,214,440