Thompson v Leigh

[2006] NSWSC 540

CITATION:	Thompson v Leigh [2006] NSWSC 540
HEARING DATE(S):	13/06/06
JUDGMENT DATE :	30 June 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	06/30/2006
DECISION:	Direct the parties to bring in short minutes of order in accordance with these reasons.
CATCHWORDS:	EQUITY – Trusts and trustees – Resulting trusts – Constructive trusts – Director of trustee of unit trust bought properties in his own name intending them to be acquired for his superannuation funds – Properties acquired with 100% finance – Superannuation funds unable to borrow – Director and superannuation funds held units in the unit trust – Loans made to trustee, the director and director’s wife jointly – Trustee of unit trust derived all income and paid all mortgage and other expenses – No declaration of trust – Director later made bankrupt – Whether properties held by director on trust for trustee of unit trust – Whether resulting trust or “common intention” constructive trust – Held trustee of unit trust entitled under resulting trust to a one-third beneficial interest in properties and entitled to contribution secured by charge.
LEGISLATION CITED:	Superannuation Industry (Supervision) Act 1993 (Cth)
CASES CITED:	Sonenco (No. 77) Pty Ltd v Sylvia (1989) 24 FCR 105 Parsons v McBain (2001) 109 FCR 120 Martin v Martin (1959) 110 CLR 297 Calverley v Green (1984) 155 CLR 242 Currie v Hamilton [1984] 1 NSWLR 687 Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060 Mercier v Mercier [1903] 2 Ch 98 Ingram v Ingram [1941] VLR 95 Calverley v Green at 247 Brown v Brown (1993) 31 NSWLR 582 Nelson v Nelson (1995) 184 CLR 538 Burns v Burns Gissing v Gissing [1971] AC 886 Grant v Edwards [1986] Ch 638 Green v Green (1989) 17 NSWLR 343 Lee v Dickerson [1884] 15 QBD 60 Forgeard v Shanahan (1994) 35 NSWLR 206 Shephard v Cartwright [1955] AC 431 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Maharaj v Chand [1986] AC 898 Shepherd v Doolan [2005] NSWSC 42
PARTIES:	RS & GH Thompson Pty Ltd v David Leigh as trustee of the bankrupt estate of Rodney Stuart Thompson
FILE NUMBER(S):	SC 3645/05
COUNSEL:	Plaintiff: M Lawson Defendant: P Cummings
SOLICITORS:	Plaintiff: Thomas Mitchell Solicitors Defendants: Donovan Oates Hannaford Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 30 June 2006

3645/05 RS & GH Thompson Haulage Pty Ltd v David Leigh as trustee of the bankrupt estate of Rodney Stuart Thompson

JUDGMENT

1 HIS HONOUR: The plaintiff is the trustee of a unit trust known as the Geltrom Unit Trust, having accepted appointment as trustee in place of Geltrom Pty Ltd (“Geltrom”) on 16 May 2000. It seeks a declaration that it is the beneficial owner of properties at 43 Seamist Drive/Swansdale Close, Nerang, Queensland and lot 238 Fortuna Place, Arundel Park, Queensland.

2 Mr Rodney Thompson was the registered proprietor of those properties. On 15 June 2001, he was declared bankrupt and the defendant, Mr David Leigh, was appointed his trustee in bankruptcy. He now has the title to the land.

3 Notwithstanding the way in which the relief claimed in the summons is framed, the plaintiff’s claim is that the defendant holds the land on trust for it, and that it holds the beneficial interest in the land on the trusts of the Geltrom Unit Trust. The plaintiff’s primary case is that Mr Thompson held the legal title to the land on a constructive trust for Geltrom. It says that when the land was acquired, it was the common intention of Mr Thompson and Geltrom that Geltrom would be entitled to the beneficial interest in the land which it would hold on the trusts of the Geltrom Unit Trust. It says that Geltrom acted to its detriment in reliance on that common intention by borrowing the purchase price in conjunction with Mr and Mrs Thompson, by making all of the payments due under the mortgage, and by paying the insurance and other expenses for the property. It is common ground that the rents of the properties were received by Geltrom, and that it accounted for the properties as if they belonged to it, rather than to Mr Thompson. An alternative claim is made that the properties are held on a resulting trust for Geltrom.

4 The defendant did not dispute that, as trustee in bankruptcy, he took the property subject to any equitable interest which Geltrom or its successor could assert against Mr Thompson. (Sonenco (No. 77) Pty Ltd v Silvia (1989) 24 FCR 105 at 112, 117; Parsons v McBain (2001) 109 FCR 120 at 123-124).

The Geltrom Trusts

5 Mr and Mrs Thompson were the directors of Geltrom. Geltrom conducted a haulage business and employed Mr and Mrs Thompson in that business. It was the trustee of the Geltrom Unit Trust. As at March 1995, there were three unitholders. Mr Thompson held 118,010 units. There were two other unitholders. They were described in the register as Geltrom Super Fund No. 1 and Geltrom Super Fund No. 2. They each held 70,000 units. Until 20 March 2005, Geltrom was the trustee of the Geltrom Superannuation Funds Nos. 1 and 2. On 13 March 1995, it resigned as trustee of those funds with effect from 20 March 1995. The new trustee of those funds was RS & GH Thompson Nominees Pty Ltd. Therefore, on 20 March 1995, RS & GH Thompson Nominees Pty Ltd became the holder of 140,000 units in the Geltrom Unit Trust. It held those units on the trusts of the superannuation funds.

6 It appears that the superannuation funds were regulated superannuation funds within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth). Pursuant to s 67 of that Act, the trustee of the superannuation funds was prohibited from borrowing. Both Mr Thompson and his accountant, Mr Hillier, understood that the trustee of the superannuation funds could not borrow. However, at the time, there was nothing to preclude a superannuation fund from holding units in a closely held unit trust, such as the Geltrom Unit Trust. There was nothing to preclude Geltrom, as the trustee of the unit trust, from borrowing.

Purchase of Land by Mr Thompson and Geltrom

7 Prior to 30 June 1993, Geltrom, in its capacity as trustee of the Geltrom Unit Trust, had purchased two blocks of land in Queensland for a total cost of $250,251.50. It had made these purchases without borrowing.

8 In early 1995, Mr and Mrs Thompson attended a seminar on property investments. Mr Thompson told the person conducting the seminar, Ms Jurca, that he wanted to look at making investments “in our super fund”. He told her that “our super funds” owned two properties. She arranged for Mr and Mrs Thompson to be flown to the Gold Coast to inspect properties for investment. Mr and Mrs Thompson flew to the Gold Coast in March 1995. They intended to buy one more investment property for their superannuation funds. Mr Thompson intended that he would arrange for a property to be bought by the “superannuation fund” without making any borrowing. Mr and Mrs Thompson were shown a number of properties. The inspections occupied about two days. Ms Jurca recommended they buy three properties. Shortly before they were due to fly back to Newcastle, Mr Thompson was presented with contracts for three properties which he and his wife had inspected.

9 All three contracts were entered into at the same time on 15 March 1995. One property was 34 Seamist Drive/Swansdale Close, Nerang (“lot 34”) which was purchased for $183,500. The contract to buy this property was signed by Mr Thompson, but the purchaser was apparently originally named as the Geltrom Unit Trust. This was later amended to name the purchaser as Geltrom Pty Ltd as trustee for the Geltrom Unit Trust.

10 The other two properties purchased were properties at 43 Seamist Drive/Swansdale Close, Nerang (“lot 43”) and 238 Fortuna Place, Arundel Park (“lot 238”). Mr Thompson signed the contract to purchase lot 43 as purchaser. He was also named as the purchaser. He also signed the contract for the purchase of lot 238 as purchaser and was named as the purchaser in the contract.

11 The purchase price for lot 238 was $259,000. It appears that the contract was subject to finance, as a clause stating that it was not subject to finance was crossed out. The contract for the sale of lot 238 provided for a deposit of $1,000. It appears that the deposit was paid by Mr Thompson as a receipt was issued to him by the vendor’s solicitors on 22 March 1995.

12 Lot 43 was purchased for $172,500. Again, the purchase was to be fully financed by a loan of that amount. The contract was subject to finance. The contract provided for a deposit to be paid of $1,000. The plaintiff submitted that Geltrom paid the deposit. The only evidence of this was that a copy of a cheque payable to the vendor’s solicitors, drawn by Geltrom for $1,000, was included in the conveyancing file of the solicitor who acted on the purchase. However, the cheque is dated 14 March 1995. Mrs Thompson gave evidence that the Thompsons chose lot 34 first. A deposit in the same amount was payable to the same firm of solicitors on the purchase of lot 34. It is likely that the cheque drawn by Geltrom for the deposit of $1,000 was drawn for the purchase of lot 34 rather than lot 43.

13 The reason lot 34 was purchased by Geltrom, but Mr Thompson was named as the purchaser of lots 43 and 238, was that finance was needed to complete the purchase of lots 43 and 238, but not to complete the purchase of lot 34. Mr Thompson understood that the reason he was the purchaser of lots 43 and 238 was because he needed to borrow money to complete the purchases. The contracts were signed by Mr Thompson in the presence of his wife, of Ms Jurca, and of a finance broker. Mr Thompson told the finance broker and Ms Jurca that the properties were to be bought for their superannuation fund. Mr Thompson was told that the properties for which finance was required should be purchased in his name to assist in getting finance. Mr Thompson acted on that advice by buying the properties in his name.

14 It is probable that the finance broker and Ms Jurca understood that a trustee of a superannuation fund could not borrow. That was also Mr Thompson’s understanding. I do not accept that Mr Thompson distinguished in his own mind between the unit trust and the superannuation funds. At the relevant time, Geltrom was the trustee of each of the trusts, that is, both the unit trust and the superannuation funds. Mr Thompson has limited education. His background is as a contractor for the haulage of coal. In the witness box, he did not appear to be at all sophisticated in his thinking. He relied upon his accountant and upon what he was told by the finance broker, or Ms Jurca. Ms Jurca told him that the way to get lots 43 and 238 was by buying them in his name and that he could “still put it in super”.

15 I do not accept Mr Thompson’s evidence that “it was always my intention that these properties would be owned by the Geltrom Unit Trust”. On his own evidence, that is not what he told the finance broker or Ms Jurca. It was not how the case was opened. The case was opened on the basis that Mr Thompson’s intention was to buy an investment property for the superannuation funds. Given that at this time, the superannuation funds were not the only unitholders of the Geltrom Unit Trust, an intention to buy the properties for the superannuation funds was significantly different from an intention to buy them for the unit trust. The evidence by Mr Thompson in his affidavit of his own intentions at the time of purchase was not objected to and was admissible (Martin v Martin (1959) 110 CLR 297 at 304; Calverley v Green (1984) 155 CLR 242 at 261), but must be viewed with the caution given to the evidence of an interested witness.

16 Mr and Mrs Thompson returned to Newcastle on the afternoon of 15 March 1995. They attended on their accountant, Mr Hillier, and showed him the front pages of the contracts for sale for each of the properties. Mr Hillier expressed surprise that two of the properties had not been bought in Geltrom’s name. Mr Thompson told him that Ms Jurca had said that it was alright. Mr Hillier told Mr and Mrs Thompson that they would have to change the contracts to put them in the name of the Geltrom Unit Trust, and that he would ring the Queensland solicitor. He did so, but was told that if there was a change of purchaser there would be additional stamp duty payable. Mr Hillier deposed to a conversation with Mr Crawford, the Queensland solicitor acting on the purchase of the properties. He told Mr Crawford that the properties were “supposed to be in the unit trust”. Mr Crawford told him, “well, it’s too late now as he [Mr Thompson] has already signed the contracts”. Mr Hillier gave oral evidence that he understood that the properties could have been purchased by Geltrom for the unit trust, but there would have been a significant cost in stamp duty. He thought it was simpler to have a meeting to resolve that Mr Thompson had acted on behalf of the trust. He was still concerned that the title to the property was not correct. He told Mr and Mrs Thompson that there would be stamp duty implications of doing it otherwise. I accept this evidence.

17 On 4 April 1995, a meeting was held of the directors of Geltrom at the offices of Mr Hillier. Mr Hillier prepared a minute which states:

“ It was resolved that the Geltrom Unit Trust would acquire properties at Lot 238, Fortuna Place, Urundel (sic) Park and Lot 43, Seamist Drive, Nerang for consideration of $259,000 and $172,500 respectively. It was further resolved that Rodney Stuart Thompson would act on behalf of Geltrom Unit Trust in regard to the purchase of the properties. It was noted that all matters carried out by Mr Thompson would be carried out on behalf of Geltrom Unit Trust in regard to acquisition of these properties in the name of the Geltrom Unit Trust. ”

18 The minute was not signed by Mr Thompson. Ultimately, the plaintiff did not submit that the minute was a declaration of trust. It is evidence that it was the intention of Mr and Mrs Thompson that the properties would be beneficially owned by Geltrom in its capacity as trustee of the Geltrom Unit Trust. One would expect in those circumstances that Geltrom would borrow the funds necessary to complete the purchase, and that in any subsequent declarations made by Mr Thompson, he would acknowledge that he did not hold the property beneficially. However, matters proceeded somewhat differently.

19 The finance to complete the purchase of lot 43 and lot 238 was provided by the Bank of Melbourne. On 18 May 1995, Mr and Mrs Thompson and Geltrom accepted an offer of finance from the Bank of Melbourne for a loan of $197,500. This was an amount required to complete the purchase of lot 43 (of $172,500) and to pay costs associated with the purchase ($25,000). The borrowers were described as follows:

“ Geltrom Pty Ltd in its own right and as trustee for the Geltrom Unit Trust, Thompson Rodney Stuart and Thompson Glenise Hazel ”.

Security for that loan was a mortgage by Mr Thompson over lot 43, and a mortgage by Geltrom over lot 34. It is clear that Geltrom and Mr and Mrs Thompson were the joint borrowers of this loan. On the same day, Geltrom and Mr and Mrs Thompson accepted an offer from the Bank of Melbourne for a loan of $259,000 required to complete the purchase of lot 238. Again, they were joint borrowers.

20 On 20 May 1995, Mr Thompson, being the purchaser under each contract, provided answers to the mortgagee’s requisitions on title in respect of both lot 238 and lot 43. One of the requisitions was:

“ Are any of the persons named above acquiring their interest as trustee? ”

The persons named above were Geltrom, Mr Thompson and Mrs Thompson. Mr Thompson answered that requisition, “ No ”. Draft answers to requisitions were sent by Mr Crawford to Mr Thompson on 24 May 1995. In a covering letter Mr Crawford wrote:

“ Please note that we enclose what we believe to be suitable answers to the requisitions, but request you read both questions and suggested answers carefully and are satisfied as to the correctness of same before signing where indicated on the last page of the attached answers. Should any discrepancies appear or you are unable answer any requisitions, kindly contact the writer immediately. ”

Mr Crawford prepared the draft answer “ No ” in relation to the requisition.

21 Mr Crawford also prepared draft answers to requisitions in relation to securities to be provided by Geltrom over lot 34 Seamist Drive. In relation to the same requisition in relation to the advance on security of lot 34, the answer was “Yes Geltrom Pty Ltd as trustee for the Geltrom Unit Trust”.

22 Mr Thompson had no recollection of the requisitions, or the answers to requisitions. He accepted that if he had any concerns, he would have contacted Mr Crawford immediately. He thought it probable that he gave the document to his accountant to go through before sending the answers back to Mr Crawford.

23 These answers to the requisitions are clearly inconsistent with Mr Thompson’s intending at that stage that Geltrom, in its capacity as trustee of the Geltrom Unit Trust, should be the beneficial owner of all three properties.

24 On 26 May 1995, Mr Crawford had a telephone conversation with Mr Hillier. His file note of the conversation records:

“ Explained, ‘will have to accept as is’.”

25 The purchase of lot 43 was completed on 2 June 1995. The purchase of lot 238 was completed on 9 June 1995. After settlement of the purchase, Mr Crawford completed a form of notification of change of ownership required to be lodged at the Office of State Revenue and the Registrar of Titles with the Department of Lands in Queensland. Mr Thompson was shown as the transferee and purchaser. There was a space to be completed if the transferee/purchaser was a trustee. The space was left blank.

26 The defendant also points to the fact that the vendor of lot 43 assigned the benefit of the lease of that lot to Mr Thompson, and that Mr Thompson entered into fresh tenancy agreements with respect to lot 238 after settlement. However, that is not inconsistent with Mr Thompson’s being a trustee of the properties.

27 On 30 June 1995, 64,000 further units were issued in the Geltrom Unit Trust to Mr Thompson. 71,000 units were issued in the name of “Geltron (sic) Super Fund No. 1”, and 11,000 units in the name of “Geltron (sic) Super Fund No. 2”. Ultimately, the units held by Mr Thompson in the Geltrom Unit Trust were redeemed. However, that did not occur until 1 July 1999.

28 All of the rents in respect of lots 43 and 238 were received by Geltrom and accounted for by it as income held on the trusts of the Geltrom Unit Trust. It met all of the mortgage repayments and other expenses in relation to the properties. This included rates, insurance, repairs and agents’ commission. Mr Thompson did not include any of the income or expenses of the investment properties in his personal income tax returns. The insurance policies were issued to Geltrom.

Resulting Trust

29 The plaintiff contends that the defendant holds lots 43 and 238 on either a resulting trust or a constructive trust. It is convenient first to consider whether, on the principles applicable to resulting trusts, Geltrom, in its capacity as trustee of the Geltrom Unit Trust, acquired a beneficial interest in the land when it was purchased, and if so, what interest. It will then be necessary to consider whether it acquired any different beneficial interest, either at the time of purchase or subsequently, by reason of a constructive trust.

30 The purchase price and the costs of purchase of both properties were wholly funded by borrowings from the Bank of Melbourne. Although deposits of $1,000 were paid, and there were interim borrowings to meet expenses and stamp duty, I infer that these were repaid from the loans provided by the Bank of Melbourne. The borrowings were made by Geltrom, Mr Thompson and Mrs Thompson jointly. The properties were purchased as investment properties. The property which the parties intended to acquire was property subject to the mortgage.

31 The initial presumption arising from Mr Thompson being the registered proprietor of the lots is that he has full ownership of them (Currie v Hamilton [1984] 1 NSWLR 687 at 690; Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060 at [128]). However, as three persons provided the purchase price, but the land was put only in the name of Mr Thompson, there is a presumption that the beneficial ownership of the property is held in the proportions in which they each contributed to the purchase price (Calverley v Green (1984) 155 CLR 242 at 246, 258, 266-267). The fact that Geltrom made all the mortgage payments does not mean that it should be treated as having made all of the contribution to the purchase price. (Calverley v Green at 257-258, 262-263, 267-268; Currie v Hamilton [1984] 1 NSWLR 687 at 692-693). It is unnecessary to consider whether this presumption arises in the case of Mrs Thompson (Mercier v Mercier [1903] 2 Ch 98; Ingram v Ingram [1941] VLR 95 at 102; Calverley v Green at 247; compare Brown v Brown (1993) 31 NSWLR 582 at 598-599 per Kirby J; Nelson v Nelson (1995) 184 CLR 538). She has made no claim in these proceedings. It is presumed that Mr Thompson held his title to the two lots on trust for Geltrom to the extent of a one-third beneficial interest in those properties. That presumption can be rebutted by evidence of actual intention.

32 There are conflicting indications of Mr Thompson’s intentions.

33 In my view, his intention was that the properties would be acquired beneficially by his superannuation funds. However, that was not possible as the trustee of those funds could not borrow to acquire the properties. Nor would that intention be given effect to by Geltrom acquiring the beneficial ownership of the properties as trustee of the Geltrom Unit Trust, as the trustee of the superannuation funds was not the only holder of units in the trust. A unit in the unit trust did not confer on the holder of the unit any interest in an asset forming part of the trust fund of the unit trust.

34 I do not regard the minute produced by Mr Hillier of a resolution of directors of Geltrom of 4 April 1995 as displacing the other evidence of Mr and Mrs Thompson’s intentions. The minute was not signed by Mr or Mrs Thompson. It was prepared by Mr Hillier in an attempt to regularise matters as it was thought to be too expensive either to transfer the legal title to Geltrom or, presumably, have Mr Thompson execute a declaration of trust. As the minute is not a declaration of trust, and, even if it were, it could not be admitted as such without duty being paid on it, its evidentiary value is as to the intentions of Mr and Mrs Thompson in relation to how the beneficial ownership of the properties should be held. Mr Thompson had no recollection of what was said at the meeting of 4 April 1995. He and Mrs Thompson did not follow their usual practice of signing a record of what took place at the meeting. They did not give evidence of having reviewed the minute at the time and having understood or agreed with it. All Mrs Thompson could say of the meeting was that she must have attended it, but she did not recall having done so. In those circumstances, I do not regard the minute as representing their actual intentions. Rather, it was Mr Hillier’s attempt to regularise the position. If the minute did reflect Mr and Mrs Thompson’s intentions, one would expect that Mr Thompson would have completed the purchase of the properties “in the name of the Geltrom Unit Trust” as the resolution required.

35 I accept that Mr and Mrs Thompson did not distinguish in their own minds between the Geltrom Unit Trust and their superannuation funds. They had the mistaken belief that the two properties previously acquired in Queensland were held by their superannuation funds. They would readily have accepted their accountant’s advice that the properties should be purchased by the trustee of the unit trust. They bought lot 34 in the name of the Geltrom Unit Trust and apparently thought that by doing so they were buying it for their superannuation funds. Their actual intentions at the time, as they declared them to be to Ms Jurca and the finance broker, were that the properties should be acquired by their superannuation funds, but that the legal title should be held by Mr Thompson so he could borrow the purchase price.

36 The fact that, following the completion of the purchase, all of the income of the property was derived by Geltrom, and accounted for as being held on the trusts of the Geltrom Unit Trust, and the fact that all of the mortgage payments and other expenses in connection with the properties were incurred by Geltrom as trustee of the Geltrom Unit Trust, is evidence from which it can be inferred that it was then the intention of the parties that Geltrom, in that capacity, be the beneficial owner (Burns v Burns [1984] Ch 317 at 329; Gissing v Gissing [1971] AC 886 at 900, 907; Grant v Edwards [1986] Ch 638 at 648-649, 654; Green v Green (1989) 17 NSWLR 343 at 355). In principle, evidence of later payments and derivation of income can be used to infer the parties’ intentions at the time of purchase. However, given the express statements of Mr and Mrs Thompson of their intentions at the time of purchase, I do not think that such material carries much weight in ascertaining the parties’ intentions at that time. I prefer the express declarations of Mr and Mrs Thompson. I infer that they left the accounting of such matters to Mr Hillier.

37 The evidence as to the parties’ actual intentions confirms that there was no intention on the part of Geltrom to contribute the money borrowed by it, along with Mr and Mrs Thompson, to Mr Thompson as a gift. The defendant submitted that it should be inferred that Geltrom was only added as a borrower because it was to give a mortgage over lot 34, to support the loan for the purchase of lot 43. In substance, he submitted that Geltrom was a guarantor of a loan made to Mr Thompson, or perhaps to Mr and Mrs Thompson. I do not accept this characterisation of the documents. The contract of loan unequivocally provides for a joint borrowing by all three parties.

38 The evidence of the parties’ intentions at the time of the purchase of lots 43 and 238 as to who would beneficially own them is confused and contradictory. The presumption of a resulting trust does not “give way to slight circumstances” (Shephard v Cartwright [1955] AC 431 at 445; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365; Brown v Brown at 596). It has not been rebutted. I therefore conclude that at the time of purchase, Geltrom was entitled to a one-third beneficial interest in both properties.

Constructive Trust

39 A “common intention” constructive trust will arise preventing an unconscientious denial by the legal owner of another party’s rights if the parties have agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other and the claimant acted to its detriment on the basis of that agreement or common intention (Grant v Edwards; Green v Green; Maharaj v Chand [1986] AC 898 at 907; Shepherd v Doolan [2005] NSWSC 42 at [31]). It is likely that at some time after completion of the purchase Mr and Mrs Thompson and Geltrom (which was then only the trustee of the unit trust) had, and acted on, the common intention that Geltrom was the beneficial owner of the properties which it held on that trust. That is consistent with the way the parties accounted for the purchase and for the income derived and expenses incurred in relation to it. Mr Thompson could have consummated that intention by executing a declaration of trust, although there would then have been stamp duty consequences. He did not do so. It is not sufficient in order to establish a constructive trust that the parties had a common intention as to the beneficial ownership of the properties. Geltrom must have acted to its detriment in reliance on that common intention.

40 The same question, of whether Geltrom has acted to its detriment in reliance on the parties’ common intention so that it is unconscionable for Mr Thompson’s trustee in bankruptcy to deny its beneficial interest, would arise if the proper conclusion were that, at the time of purchase, Mr and Mrs Thompson intended that the properties be beneficially acquired by Geltrom as trustee of the Geltrom Unit Trust.

41 The detriment Geltrom points to is that it has paid instalments under the mortgage and incurred all the other expenses associated with holding the properties, and that these exceed the income derived from the properties. However, under the resulting trust, Geltrom is a one-third beneficial owner of the properties. It is entitled to contribution from the other borrowers for having paid the joint debt, and is entitled to a charge to secure that entitlement (Ingram v Ingram at 102; Currie v Hamilton at 692-693; Calverley v Green at 263). No argument was advanced on the question whether Geltrom would be liable to account for two-thirds of the rent received, or be entitled to an allowance for two-thirds of expenses paid in relation to the property (Lee v Dickerson [1884] 15 QBD 60; Forgeard v Shanahan (1994) 35 NSWLR 206 at 222). It has received all the rents, and if it is liable to account for two-thirds of the rents received, it must be entitled to recoup two-thirds of the other expenses paid. Once its one-third beneficial interest and its rights of contribution secured by charge are taken into account, I do not accept it suffered a relevant detriment. Indeed, for Geltrom or the plaintiff to take the whole of the beneficial interest would give it a windfall at the expense of Mr Thompson’s creditors. It would receive a windfall because the purchase price was contributed jointly by Geltrom and by Mr and Mrs Thompson. Even if the parties’ intentions were as simple as the plaintiff contends, it would not be unconscionable for the defendant to deny that Geltrom has any greater interest in the properties than a one-third beneficial interest and a right of contribution secured by a charge.

42 Reduced to its essentials, this case involves Mr and Mrs Thompson as, beneficiaries of their superannuation funds, seeking to keep the whole of the properties out of the reach of Mr Thompson’s creditors, where they were not prepared to pay the stamp duty which would have been payable in 1995 had they substituted Geltrom as the purchaser, or had Mr Thompson executed a declaration of trust. It is not unconscionable for Mr Thompson’s trustee in bankruptcy to deny Geltrom’s claim, except to the extent Geltrom has acted to its detriment. The requirements of conscience are satisfied by recognising Geltrom as a one-third beneficiary under a resulting trust, and its secured right of contribution.

43 For these reasons, I reject the plaintiff’s claim that the defendant holds the two properties on trust for it, and that it holds the beneficial interest in those properties on the trusts of the Geltrom Unit Trust. In my view, it is beneficially entitled as tenant in common to a one-third interest in the properties. As successor to Geltrom, it is also entitled to an equitable charge over the properties to secure its rights of contribution. There was no detailed evidence as to the extent of any such right of contribution. Nor was the matter the subject of argument. If necessary, I will hear further argument on that question.

44 Accordingly, I direct the parties to bring in short minutes of order in accordance with these reasons. If the parties cannot agree upon the declaration to be made as to the plaintiff’s right of contribution, I will hear argument on that. I will also hear argument on the question of costs.

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