Valeress Pty Ltd v Valenest Pty Limited (in liquidation)

[2011] NSWSC 465

Supreme Court

New South Wales

Medium Neutral Citation:	Valeress Pty Ltd v Valenest Pty Limited (in liquidation) [2011] NSWSC 465
Hearing dates:	24, 25 March, 6, 8, 19 April 2011
Decision date:	20 May 2011
Jurisdiction:	Equity Division
Before:	Sackar J
Decision:	A declaration that the property known as 503 Victoria St Wetherill Park, being land comprised in Lot 22 of Deposited Plan 853602 is property of the Ceccattini Family Trust
Catchwords:	TRUSTS - Intention to create trust - certainty of intention, object and subject matter - non-requirement that the term "trust" be used when establishing trust - vesting order to appoint Company as trustee of trust EVIDENCE - Authenticity of documents - presumption as to the authenticity of documents displaced
Legislation Cited:	Corporations Act 2001 (Cth); Evidence Act 1995 (NSW); Trustee Act (NSW);
Cases Cited:	Australian Securities and Investments Commission v Rich 216 ALR 320 Re Schebsman (1944) Ch 83 Re Williams and Commissioner of Stamp Duties (QLD) v Jolliffe (1920) 28 CLR 178 Trident General Insurance Co (1988) 165 CLR 107 Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 Walker v Corbroy (1990) 19 NSWLR 382
Category:	Principal judgment
Parties:	Valeress Pty Ltd - Plaintiff Valenest Pty Limited (in liquidation) - Defendant
Representation:	Counsel: D Ashhurst SC, D Allen - Plaintiff A Lo Surdo - Defendant Solicitors: Proctor & Associates, J Kekatos - Plaintiff HWL Ebsworths, Ms J Talakovski - Defendant
File Number(s):	2010/304565

Judgment

The Proceedings

1. In a summons dated 13 September and amended on 18 November 2010 the plaintiff seeks a declaration that the property known as 503 Victoria Street, Wetherill Park New South Wales, being land comprised in lot 22 of deposited plan 853602, is property of the Ceccattini Family Trust.

1. An order is also sought pursuant to section 71 of the Trustee Act vesting the subject property in the plaintiff.

1. Leave was previously granted pursuant to section 500 (2) of the Corporations Act giving leave to proceed against Valenest Pty Ltd (in liq) on 26 November 2010.

The Parties Contentions

1. The plaintiff submits that the primary issue in the proceedings is whether or not there was an intention by Valenest Pty Ltd that the property at Victoria Street, Wetherill Park, would be purchased by it as trustee on behalf of the Ceccattini Family Trust when the property was acquired on 23 June 2000. This was the date of the exchange of contracts.

1. The defendant articulates the issue in a slightly different way. It submits that the issue for determination is whether the relevant property is and has at all times since its acquisition on or about 5 March 2001 been held by Valenest on trust for the Ceccattini Family Trust. This was the date stamp duty was paid.

1. The defendant accepts that if the property was acquired for the Trust then by virtue of section 9 of the Trustee Act, 1925 (NSW) the appointment of Valeress as the new trustee on 27 July 2009 has the effect of vesting the property in Valeress as the new trustee without the need for an express vesting order under Section 71(2)(b) of the Act.

Background Facts

1. Valenest was incorporated on 26 May 1997.

1. On 27 May 1997 Mrs Cecelia Ceccattini was appointed it's sole director and secretary. She remained in that position until late 2009 when she was replaced by her husband Mr Walter Ceccattini.

1. Between 26 May and 3 June 1997 the registered office of Valenest was Unit 4, 4 Gladstone Road, Castle Hill. From 4 June 1997 until 6 February 2000 the registered office is noted as Suite 3, level 1, 39 Darcy Road, Wentworthville.

1. From 7 February 2000 until 17 January 2007 the registered office was care of Mario Mura and Co, Ground Floor, 127 Castlereagh Street, Liverpool. (During this period Mr Mura performed accounting services for Valenest).

1. From 18 January 2007 to 15 November 2009 the registered office was either Suite 203, 29 - 31 Solent Circuit, Baulkham Hills, or Suite 205, Solent Circuit, Baulkham Hills. This was the business address of Mr Seymour, the accountant who performed accounting services for the company during that period.

1. From 16 November 2009 and following the registered office was at Suite 3, 57A Dunmore Street, Wentworthville.

1. The principal place of business from 12 February 1998 until 11 October 2009 was 41 Mount Street, Wentworthville. This is said to be the home office of Mrs Ceccattini.

1. From 12 October 2009 and following the principal place of business was Suite 3, 57A Dunmore Street, Wentworthville. I should observe that this is and was the principal place of business from 2006 of the plaintiff whose sole director and secretary at all relevant times was Ms Sue-Ellen Ceccattini the daughter of Mr and Mrs Ceccattini.

1. According to Mrs Ceccattini in January 2000 Mr Mura, the then accountant for Valenest, had a conversation with her. He advised her that he regarded it as advisable to establish a family trust rather than merely purchasing property through companies. He pointed out that in general terms there would be tax advantages. Mrs Ceccattini approved of the proposal and asked him to organise it.

1. She says that she identified Valenest as the company into which the properties would be placed. She also says Mr Mura indicated that the company would then be the trustee.

1. Mr Ceccattini also recalled a conversation at or about the same time with Mr Mura to the same effect. Mr Mura told him that when property was bought by the trust it would be protected for the benefit of "your children".

1. Mr Mura accepts he did have such a discussion with the Ceccattinis and as a result was given instructions to set up the trust.

1. On 16 January 2000 the deed of settlement for the Ceccattini Trust was executed with Valenest as the corporate trustee.

1. On 24 May 2000 Mr Mura established the Ceccattini Family Trust. As settlor he sent a letter to the "directors" of Valenest indicating that he wished to establish a discretionary trust to benefit the family of Mr and Mrs Ceccattini enclosing the sum of $10 together with a copy of the deed.

1. Mr Ceccattini said that after speaking to Mr Mura he and his wife had a conversation in which they specifically discussed buying the property at "Victoria Street" and putting it in trust for their children. Mrs Ceccattini confirms she and her husband had such a conversation.

1. On 23 June 2000 contracts were exchanged for Valenest's acquisition of the property at 503-505 Victoria Street, Wetherill Park. Although Valenest is identified on the first page of the contract as purchaser it is not identified as a trustee.

1. The contract for sale indicates that a Mr John Puleo solicitor acted for Valenest. Mr Puleo swore an affidavit in these proceedings in which he recalled being instructed by Mr Ceccattini to act for the company on the purchase of the property but otherwise had no recollection of the transaction.

1. Mrs Ceccattini asserts that at or about the time Mr Puleo was retained she told him that the property was to be purchased "for the trust" and that he should put the name of the trust on the front page of the contract. Mrs Ceccattini asserts that Mr Puleo said that in New South Wales there was no need to do that. Mr Puleo says in his evidence that he told his staff not to note the fact a purchaser was a trustee on contracts for land because the Land Titles Office would not recognise the notation of the trust on the transfer.

1. Mrs Ceccattini exhibited a document to her affidavit of 18 March 2011 identified as "CC3." It is a document dated 23 June. It purports to be a minute of a meeting of the "directors" of Valenest resolving to purchase the property at "503-505 Victoria Street, Wetherill Park." It is signed by her husband as chairman. At the relevant time she of course was sole director. In her affidavit she asserts that although she does not recall who gave her the document she did get it in 2000 at or about the time that property was purchased and she indeed herself gave it to her husband to sign.

1. On 31 July 2000 the Australian Taxation Office advised the Ceccattini Family Trust via Mr Mura that an ABN could not be issued at that time as there were problems with the application. However on 23 August a tax file number was in fact issued to the Trust.

1. On 22 August 2000 the purchase of the Victoria Street property was settled.

1. On or about 17 February 2001 Valenest received a land tax assessment. The amount said to be payable was $1,797.70. Attached to the assessment is what is described as a support schedule. That schedule itemised what was described as aggregated land. Three properties are identified. A property in Wyong and two in Campbelltown.

1. Mrs Ceccattini recalled that in late February 2001 she showed the assessment to Mr Mura whilst he was at her home office. She also recalled that she informed him that the land tax assessment did not make any mention of the "Victoria Street" property. She says that Mr Mura replied indicating that the property needed to "pay land tax as a trust property" and that he would go to the Office of State Revenue and sort it out. She noticed that during their conversation Mr Mura wrote the address of the Victoria Street property on the assessment.

1. Mr Mura's handwriting indeed appears on the two pages of the support schedule. On the first page there is a formula for the calculation of land tax and at the bottom of the page there appear words in Mr Mura's handwriting "to add 503-505 Victoria Street, Wetherill Park Lot 22 DP853602." On the second page his handwriting again appears with the same words repeated. Mr Mura accepted that it is his handwriting. Further he recalled being approached by the Ceccattini's with a land tax problem involving a property that was owned by Valenest as trustee.

1. On 2 March 2001 stamp duty was paid on the Ceccattini Family Trust deed. On 5 March 2001 stamp duty was paid on the Victoria Street property.

1. On 13 April 2002 Valenest was assessed as trustee for the Ceccattini Family Trust for land tax purposes. The support schedule to that document indicates that the relevant property had by then been added to the schedule.

1. There is what purports to be a Valenest board minute for the purchase of the property at McIwraith Street, Wetherill Park, dated 20 August 2002. It is again signed by Mr Ceccattini as chairman. The date is in handwriting whereas the balance of the minute is in typescript.

1. On 24 March 2003 Valenest as trustee for the Ceccattini Family Trust was sent a final notice for outstanding land tax. That was sent to Mr Mura's office in Liverpool. It was subsequently paid.

1. On 12 September 2003 contracts were exchanged for the purchase of a property at Barbara Street Fairfield. The first page of the contract purports to indicate that it was purchased by Valenest as trustee for the Ceccattini Family Trust.

1. There is a minute that purports to be dated 12 September 2003 and signed by Mr Ceccattini as chairman, and purporting to be a minute of a meeting of Valenest resolving to purchase the Fairfield property for the family trust.

1. As I have already observed from 30 June 1999 to 30 June 2004 Valenest retained Mr Mura as its accountant. In accounts prepared for Valenest for the year ended 30 June 2000 the relevant property is mentioned in note 2 - non current assets. The note indicates that at that point a 10% deposit only had been paid. The property is not mentioned in the accounts as at 30 June 2001, nor in the accounts for 30 June 2002. It does appear in the accounts for 30 June 2003 and again in the accounts of 30 June 2004. Whether the property appears or does not appear as a non current asset in the accounts there is no separate identification in any of those accounts of the existence of a trust or of any income or expenses being received and/or incurred by a trust. There is certainly no indication in any of those accounts that any property identified as a non current asset is or was a trust property at the date the accounts were prepared.

1. Mr Mura's retainer was terminated largely because of a disagreement between himself and Ms Ceccattini.

1. Following the termination of Mr Mura's retainer Valenest retained Mr M J Seymour as its accountant. Mr Seymour prepared financial statements for Valenest for each of the financial years from 30 June 2005 to 30 June 2007. In statements for the year ending 30 June 2005 the relevant property is identified as a non current asset. In the accounts for the year ending 30 June 2006 it is not identified as a non current asset. There is however a non current liability identified in relation to the property by way of a debt to Perpetual Nominees. The property is listed under "Property Plant and Equipment".

1. Again, in the financial statements for the year ending 30 June 2007 the property is listed under the heading "Property Plant and Equipment."

1. In none of those financial statements is there any mention of Valenest as a trustee.

1. In early March 2007 Ms Ceccattini had a meeting with Mr Seymour. During the meeting a letter from the Australian Taxation Office was discussed. The letter dated 9 February 2007 was a reminder that had been sent care of Mr Mura to the effect that the trust had not lodged any tax returns for the period commencing 1 July 2000 to 30 June 2006.

1. Mr Seymour acknowledged in his evidence that his recollection of precisely what was said during the meeting was not clear. He also accepted that his brief diary note of the meeting confirmed that Ms Ceccattini had come to see him about the trust. He said that during the conversation he indicated that the accounts for Valenest may require revision to exclude assets owned by the trust in its own right. Ms Ceccattini was going to get back to him with information in due course. In cross examination he said he had told Ms Ceccattini that if the trust itself had any assets or any property then Valenest needed to amend its accounts. He also agreed that he explained to her that it would be a large job to correct the accounts. He accepted that Ms Ceccattini said that the accounts would have to be fixed. There is no suggestion that his attention was drawn to any of the minutes referred to above.

1. On 21 April 2008 Valenest approached Balmain Commercial, a mortgage administrator, in order to assist in a re-finance of facilities. The refinance was brought about due to cash flow problems that had arisen in connection with the company's development at home units at the Entrance. The lender was identified as Challenger Managed Investments Limited as responsible entity and Perpetual Trustee Company Limited as custodian on behalf of Challenger Howard Mortgage Fund.

1. A letter of offer makes reference to Valenest as borrower. Mrs Ceccattini signed the acceptance of the offer on behalf of Valenest. It is dated 12 May 2008. There is no mention in the letter of Valenest as a trustee.

1. Mrs Ceccattini as director was required to sign a declaration as borrower. She did so on 29 April 2008. Her signature was witnessed by Mr Licardy, solicitor. The declaration identified the borrower as Valenest and that Mrs Ceccattini as director had obtained independent legal advice from Mr Licardy in respect of the deed of loan, the mortgage and a deed of guarantee.

1. Mrs Ceccattini, her husband and a company owned and controlled by the Ceccattinis, Hanieed Pty Ltd, executed a deed of guarantee and indemnity. Nowhere in that documentation is there is any mention of Valenest as a trustee.

1. A fixed and floating charge was entered into by Valenest with Perpetual Trustee Company Limited. Just above her signature on the relevant documentation there is a clause 62. Below the clause is a schedule in which it is plain that if a trust existed full identification and other formalities would need to be completed. There is again no hint of the existence of any trust.

1. Mr Licardy, solicitor, acted for Valenest in relation to the refinance. The relevant property, along with a property at Minto, were offered as security for the refinancing.

1. Mr Licardy assisted Mrs Ceccattini prepare answers to the requisitions on title. He said in his evidence that he spoke to Mrs Ceccattini and ran through the answers with her. There were some answers that he left blank and then otherwise faxed the proposed answers to the office of Ms Ceccattini. He requested they be checked "to ensure that they are correct." He later received completed requisitions back. He sent the answers off to Heidtman and Co, the solicitor for the mortgagee.

1. Mr Licardy accepted that he had completed the answers to requisitions 6.2(a) and (b). Those questions are directed to whether or not the "vendor" was a trustee. Although that requisition is directed to a "vendor" it is clear from the definition section 1, that where requisitions have been issued in connection with a mortgage the person filling out the answers is invited to read "vendor as "mortgagor." Importantly, when he completed section 6.2 he asserted that the "vendor" was not a trustee.

1. Mr Licardy did not recall having any conversation with Ms Ceccattini or Mrs Ceccattini about that matter. He said he assumed however that the answers were correct because when he sent the form to be completed to the Ceccattini's it came back without amendment.

1. Mr Licardy agreed that the deed of loan with Challenger contained a clause 14, to the following effect:

"Trust Matters

The Borrower represents and warrants that it is not the Trustee of any Trust."

1. He witnessed the signatures of Mr and Mrs Ceccattini to the deed of loan. Mr Licardy could not however recall specifically drawing the Ceccattini's attention to clause 14.

1. Ms Ceccattini conceded that her handwriting appeared on some of the requisitions. She had no recollection of receiving the fax from Mr Licardy.

1. She said she was attempting to assist her mother complete the answers to the requisitions. She was able to identify that which was her writing and that which was her mother's. She was also able to identify Mr Licardy's writing in the answer to question 6.2.

1. Ms Ceccattini indicated in her evidence that she may have checked the answers but she could not be sure.

1. In about May of 2009 the Ceccattini's asked a Mr David Cassaniti to act as accountant for Valenest. Evidence of Mr Cassaniti was read but he was not required for cross-examination.

1. On 27 July 2009 Valenest retired as trustee of the Trust.

1. On January 2010 Valenest resolved to appoint Messrs Arnautovic and Kukulovski as joint and several administrators.

1. On 7 May 2010 Valenest entered into a creditor's voluntary administration and Messrs Arnautovic and Kukulovski were appointed as joint and several liquidators.

Legal principles

1. In order for there to be an express trust there must be certainty of intention to create the trust, certainty of subject matter and certainty of object. Further, the trust must be either completely constituted or supported by valuable consideration and there must be no 'latent flaw', such as incapacity on the part of the alleged creator.

1. In relation to establishing certainty of intention to create a trust, it is clear that an intention to create a trust may be established without the use of technical language such as the word 'trust' itself: Re Schebsman. Likewise, in the situation where the term 'trust' is not used, this will not necessarily be determinative of whether or not there is a trust; in both situations the conduct of the alleged creator of the trust must be construed in context to determine their overall intention: see, for example, Re Williams and Commissioner of Stamp Duties (QLD) v Jolliffe.

1. With regards to inferring intention, the court will consider the language of the parties with reference to the factual matrix of events and the circumstances of the parties: Trident General Insurance Co . Further, in inferring intention a court will look to the nature of the transaction and the circumstances of the matter, including commercial necessity: Eslea Holdings Ltd v Butts.

1. As Meagher JA remarked in Walker v Corbroy at 395 : "If the parties expressly spell out that their arrangements do or do not involve a trust, a trust comes into existence or does not come into existence accordingly."

1. In relation to establishing certainty of subject matter, it may be noted that almost any property may be held on trust: the requirement here is simply that the subject of the trust property itself be expressed with clarity.

Discussion

1. The evidence in this matter on any view produces a factual narrative, which has many inconsistencies within it.

1. The events surrounding the preparation of financial statements and/or draft financial statements are on one view telling as is the 2008 transaction in relation to the refinance. Those events taken separately or together point overwhelmingly point against the property having been acquired as an asset of the trust.

1. The minute of 23 June together with the minutes of 22 August 2002 and 12 September 2003 have their own difficulties associated with them. I am not persuaded that they are contemporaneous. I will deal with these minutes below.

1. In the end however and not without some hesitation I have come to the view that the most relevant and indeed most persuasive matters are those events which objectively can be shown to have occurred in the years 2000 and early 2001. Whilst the later events referred to above are clearly relevant, in the end I have come to the view are of very limited weight.

1. The events which I therefore regard as most significant, compelling and in the end persuasive are the following:

• There is no doubt that in January of 2000 Mr Mura the then accountant for the plaintiff advised the Ceccattini's that a family trust be established: CB500. He advised them that there were financial and other advantages in doing so: CB500. They accepted his advice: CB500.
• Mr Mura was instructed to set up the trust and a deed of settlement was prepared with Valenest as the corporate trustee on or about 16 January: CB502-529. Mr Ceccattini was the appointor and the deed was executed by Mrs Ceccattini on behalf of Valenest as its then sole director: CB529.
• On 24 May in a letter directed to the company, Mr Mura as settlor, indicated he wished to establish the Ceccattini Family Trust: CB530. The letter to the "directors" enclosed a cheque for the sum of $10 together with a copy of the deed of settlement and schedule: CB530.
• Mr and Mrs Ceccattini agreed shortly prior to the acquisition of the "Victoria Street" property that it should be acquired in trust for the benefit of their children: CB538 & CB544. On its own, this type of evidence might be expected to be given little weight without some independent corroboration. Mr Mura for example was asked whether he could recall being told by the Ceccattini's that they had purchased a property shortly after the trust was set up but he could not recall. Notwithstanding the lack of corroboration I do think this material does carry some weight especially when taken together with other events that happened at or about the same time especially the events surrounding the retainer of Mr Puleo, solicitor. I accept that the Ceccattini's had such a discussion.
• Mr Puleo solicitor was retained by the Ceccattini's to act on the purchase: affidavit of John Puleo sworn 30 March 2011.
• I acccept that Mrs Ceccattini had a conversation with him in which she told him that the property was for the trust and asked whether that should be noted on the contract: CB539. She says that Mr Puleo indicated that that would be unnecessary as in New South Wales that did not have to be done: CB539. The plaintiff filed an affidavit sworn by Mr Puleo on 30 March 2011. In it he accepts that he was retained by Mr Ceccattini to act for Valenest on the purchase of the relevant property: para 3. He indicates that he has a very poor recollection of the circumstances concerning the purchase: para 4. He does confirm however that his usual practice at the time was not to identify the purchase as being made by a trustee on behalf of the trust in the contract because the Land Titles Office would not recognise the notation of the trust on the transfer: para 5. I should add that I regard it as important that Mr Puleo was not required for cross examination. On that basis Mrs Ceccattini's version of events and her conversation with Mr Puleo can be more readily accepted.
• The property was acquired by an exchange of contracts on 23 June 2000: Exhibit P1.
• There is no doubt that Mr Mura in July was attempting to register the Ceccattini Family Trust with the Australian Taxation Office but difficulties arose as to the issue of an ABN: CB531. However on 23 August a tax file number was issued for the Trust: CB 532.
• The receipt by the Ceccattini's of a land tax assessment on or about 17 February 2001 provoked a conversation between Mrs Ceccattini and Mr Mura: Mr Mura accepted in his evidence that such a conversation had taken place and further and most importantly he corroborated the conversation with Mrs Ceccattini about adding the relevant property to the schedule attached to the land tax assessment as a property of the trust: T 19/4, p13, lines 32-35. He acknowledged in his evidence that his handwriting appeared at the bottom of two of the pages of the assessment: T11, page 13, lines 32-35. Mrs Ceccattini said that Mr Mura told her that the property needed to be assessed for land tax as a trust property: He also said he would go to the office of State Revenue and fix up the documentation: T19/4, p13, lines45-50. I am satisfied that such a conversation took place in or around February 2001 and as the result Mr Mura ensured that the assessment was corrected to include the relevant property. Further, there is no doubt as the result of additional submissions I have received on the Land Tax Management Act 1956 that this could not have been done to achieve any particular financial advantage for the Ceccattini's.

1. As a result of the foregoing circumstances I am of the view that although Mr and Mrs Ceccattini were relatively unsophisticated, in relation to their understanding of the law of trusts, they took Mr Mura's advice seriously and clearly understood - although perhaps only in broad terms - that there would be a financial advantage in purchasing property as a trust asset. They also certainly believed it would secure protection of certain of their assets for the benefit of their family that they regarded as important. There is no evidence of course that they did in fact receive any financial benefits as a result of the trust structure as no returns were ever prepared for it.

1. The Ceccattini's over the years following 2000 expanded their property empire very significantly. The development and construction side of the business of Valenest was run principally by Mr Ceccattini. He involved himself with the acquisition and development of land. He also involved himself in the design aspects of projects. Mrs Ceccattini attended to the paperwork. Whilst it is true that no particular investment or selection criteria can be inferred from the evidence as to when a property was or was not going to be a trust asset I am persuaded, just, that the acquisition of the relevant property in June 2000 was intended to be an acquisition by the trust and I so find.

1. The materials such as the accounting records show if nothing else that the Ceccattini's did not appreciate the niceties of accurate accounts. Nor did Mr Mura as it happens. He of course knew of the trust given he set it up and at least knew the relevant property had been acquired as an asset of the trust from early 2001 and yet he never it seems took the trouble to prepare separate accounts for the trust nor was he prompted to enquire as to what his clients were doing with the trust in terms of its acquisitions.

1. Whilst the various accounting materials prepared by either Mr Mura and/or Mr Seymour on no view support that a trust existed, this does not in my view in the end detract from the impact of the events I have chronicled in 2000/2001 above. Mr Mura's lack of diligence and Mr Seymour's lack of specific instructions are not determinative either. Nor does the transaction with Challenger persuade me to the contrary. It was not explored with the Ceccattini's whether they thought a refinancing might be refused or made more complicated by disclosure of the existence of trust. In any event again I consider the earlier events in 2000/2001 to be much more persuasive.

1. Whilst in the light of my findings it is not strictly necessary for me to say anything about the three minutes referred to above I propose to deal with them nonetheless and to also deal with Mr Mura as a witness. If nothing else they could well have an impact on the ultimate costs order that I may be persuaded to make.

The Minutes

1. Three minutes were tendered in the evidence each purporting to corroborate the acquisition of three properties as assets of the Ceccattini Family Trust. The first of 23 June 2000 deals with the relevant property. The second with the date in handwriting namely 20 August 2002 deals with the acquisition by the Trust of the 25% interest in 16 and 18 McIlwraith Street Wetherill Park. The third dated 12 September 2003 deals with the acquisition of a property at 3 Barbara Street, Fairfield. It is not in issue in the case that each minute was signed by Mr Ceccattini as chairman.

1. It was submitted that they were prima facie evidence of minutes executed on the date they bear and reliance was placed on s.1305 of the Corporations Act. But the presumption that arises from the Act or for that matter the general law is just that, prima facie and is capable of rebuttal: see, Australian Securities and Investment Commission v Rich per Austin J at para [281].

1. Each minute is in relatively pristine condition with the paper in each case sparkling white. Each is a single page document. They are each identically laid out and the language especially in the penultimate and ultimate paragraphs is identical. I am of the view they were prepared by the same person or persons. It was said that the reason they were in such good condition was as they had been kept in plastic sleeves. No such plastic sleeves were tendered in the evidence. I note that they are to be contrasted with the colour of the paper of the deed of settlement handed to Mrs Ceccattini in the year 2000. It has noticeably yellowed. Further the additional copy of the schedule to the deed dated 16 January 2000 and also handed to Mrs Ceccattini by Mr Mura in 2000 is likewise yellowed. In my view I am entitled to take these matters into account in considering the question of their authenticity by reason of s.183 of the Evidence Act. For the further reasons which follow I am by no means satisfied any of those minutes are contemporaneous, in particular the minute of 23 June 2000. I have for that reason accorded no weight whatsoever to that minute in my deliberations.

1. Clearly the most important of the three for present purposes is the minute of 23 June 2000. If authentic it would serve as a contemporaneous resolution to acquire the relevant property on behalf of the trust. As such it would be as good a piece of evidence as one could have to prove the acquisition of the relevant property as a trust asset.

1. The first difficulty which confronts the plaintiff of course is that Mr Ceccattini was not a director or officer of Valenest until October 2009. He is noted as chairman and is the sole signatory to each of the minutes. The circumstances in which he came to execute each of the minutes is in my view unclear. Both Mr and Mrs Ceccattini fully appreciated at all times that the former was not a director until 2009. This contrasts starkly with it being Mrs Ceccattini appropriately signing the relevant documentation as the sole director of both Valenest and Hanieed in 2008 for the refinancing transaction.

1. Ms Ceccattini could of course give no direct evidence as to where, when and how any particular minute came into existence unless she had been involved in their preparation. She however said in her evidence that she had not seen the June minute until her mother gave it to her in 2009 (T29 line 10). She said she was not present when her father signed the document and she was not privy to how he signed it or when the document was prepared or by whom it was prepared (T29 lines 40-50). She seems not to have known of their or its existence in 2008 because she not draw them to Mr Seymour's attention.

1. Mrs Ceccattini was asked about the minute of 23 June. She could not, somewhat remarkably in my mind given its significance, recall who gave her the document. She supposed it would be Mr Mura "he used to give me all the documents" (T65 lines 6 and 7). She believed that she gave the document to her husband to sign. She said that she was simply following Mr Mura's instructions (T65 lines 29-30). When asked why she got her husband to sign the document, she said that she thought her husband had signed the document to put the property into the trust (T67 lines 33-35). She readily accepted that her husband was not a director of the company Valenest in 2000 and that she knew she was the sole director (T67 line 41 - T68 line 1).

1. It was put to her in cross-examination that the document was not prepared or signed in 2000 at all, to which she responded: "that was done" (T68 lines 41 - 43). It was put expressly to her that her husband to her knowledge signed the document some time in 2009 after he had become a director of Valenest. She responded that it had been in her file for "many many years together with the other document whatever it was" (T69 lines 14 - 19).

1. She was then taken to the second minute with the handwriting "20 August 2002" on it (ExD2). She recognised her husband's signature on it but did not recognise who had written the date. She said that it was not her daughter's handwriting nor hers and she had no idea whose handwriting it was. She supposed that Mr Mura again had prepared the document (T85). Again, although she acknowledged her husband had signed the document she accepted that as at 2002 she was the only director of Valenest.

1. The minute of 12 September 2003 was also put to her. Again she recognised her husband's signature. She indicated that usually she put a document in front of him for his signature and had him sign it. It was put directly to her that the document was signed sometime in 2009. She indicated that it was in an old file together with the "trust." She was then asked whether it was possible that it was signed at some date after 2003. She could not remember when he signed the document (T86 lines 33 - 50 and T87 lines 1 - 9).

1. It was then put to her that this document was one of several that Mr Cassaniti had prepared. She rejected that proposition on the basis that it was on her file and that she had given it to her daughter when she was asked to produce documents including the trust document. She could not remember when she was asked by her daughter to produce the documents. It was put that she was asked to produce them sometime in 2009 to which she said she did not remember (T87 lines 35 - 45).

1. Again it was put to her that it was prepared sometime after 12 October when her husband became the sole director of Valenest. She answered, and not for the first time, as follows:

"A. No this document was in my old file with the old documents for the Trust." (T87 line 48)

1. She was asked to compare each of the minutes that of 23 June 2000, 20 August 2002 and 12 September 2003 with one another. She was invited to agree that they were all in excellent condition. She answered that they were in "sleeves, plastic ones with the other paper." It was put directly to her that the documents look alike, contain similar language and that is because they were all created at exactly the same time. She rejected that proposition (T1 lines 25-29).

1. She rejected that they had been prepared in part to assist in the proceedings to which she answered "No" (T92 lines 15 - 38).

1. Mr Ceccattini was also asked about the minute of 23 June 2000. He agreed that he was not a director of Valenest as at that date. He conceded his wife was sole director at that stage. He had no knowledge of who it was who prepared the document and no knowledge when he signed it. Further he had no knowledge of where he signed it but he suggested there could only be two places, one was the "accountants office which is in Liverpool" (I took that to be a reference to the office of Mr Mario Mura whose address was at the relevant time, 127 Castlereagh St Liverpool), or the "other could be the office in our company" (T111).

1. Mr Ceccattini was extremely vague as to when he signed the document but he was somewhat resistant to the proposition that it could have been signed in 2009. He could not remember but he said it was not in the recent past and he associated the signing of the document at a time when Valenest had started going bad (T120 lines 10 - 25). The problems with the company in part seemed to be connected with a dispute with Hymix in relation to a concrete pour at the property at Ozone Street, the Entrance. According to Mr Ceccattini the difficulties lead to the refinancing with Challenger in 2008 (T113). There was no precise time frame on when the company started having difficulties but a reasonable inference about the time the refinancing was arranged.

1. He was specifically asked about the minute with the handwritten date (Exhibit D2) and in particular if he recognised his signature on it. He said he did not otherwise recognise the handwriting (T113 lines 40 - 55).

1. It was put directly to him that the document was given to him for signature when he was a director in October 2009. He said it was not possible for that to have occurred in 2009 (T115 lines 15 - 28).

1. He was also asked about Exhibit DD1 (the minute of 12 September 2003). He agreed that his signature appeared on it but again was unable to provide any details of when the document was created, who created it and when he signed it (T117 lines 1 - 11). He was asked whether it could have been signed in 2009 but his response again was that it had been signed "long long time" (T117 lines 40 - 50).

1. In each minute the location of the meeting is stated to be 3/57 Dunmore Street, Wentworthville. The historical company search for Valenest (CB553) indicates that the address 3/57A Dunmore Street Wentworthville was the registered office of Valenest but only from 16 November 2009 at or about the time Mr Ceccattini became sole director. The address whether it be 3/57 or 3/57A was an address owned and occupied by members of the Ceccattini family. It was however the principal place of business of the plaintiff from 2006.

1. Mr Cassaniti the accountant retained by the Ceccattini's in 2009 swore an affidavit on 4 April in which he indicated that the minutes of 23 June and 22 August were on a computer disk which came into his possession in 2009. He was not required for cross-examination. I accept he was not in any way in the creation of those minutes.

1. Mr Mura swore an affidavit dated 5 April in which he denied any knowledge of each of the minutes concerned. He also swore that no one in his firm had prepared the minutes but he readily agreed of course that he had prepared the deed of settlement (T128 line 35).

1. Mr Mura was cross-examined about the minutes. He agreed that his firm did from time to time prepare minutes for clients. However he vehemently adhered to his denial that neither he nor anyone from his firm had prepared them. He said that their style, terminology and layout were nothing like the type of minutes he prepared (T144 - 145). In minutes he had prepared he might identify himself as chairman even though he was not an officer of the company. He denied he had meetings by telephone with clients (T146).

1. Mr Mura agreed he had sworn a statutory declaration dated 18 June 2010 (CB579) in which he asserted that during his service as company accountant there was no mention that Valenest was a trustee of a family trust. He went on in the declaration to assert that all transactions and tax returns were prepared and lodged as a private company and not as a trustee. The latter part of the statutory declaration is clearly correct.

1. In respect of the first part of the declaration he was forced to admit it was untrue (T138-139). He had set the trust up for the Ceccattini's and so knew it was untrue to have made that the assertion at the time he swore the declaration. He appreciated at the time that the person who had him sign the document, a Mr Castle was going to use the document to seek to recover monies from Mr Ceccattini. He also admitted that he had lost monies in a joint venture with Mr Ceccattini and had been made a bankrupt. Indeed whilst the precise level of his losses was not the subject of direct evidence the financial statements for the period ending 30 June 2005 disclose a non current liability in favour of Mr Mura for $884,933 (CB 619). It was put to him that he blamed Mr Ceccattini for his losses and resented him. Although not put directly it was heavily hinted that that provided him with motive to tell an untruth. He denied that and asserted that Mr Ceccattini had himself lost everything (T143 lines 24 - 30). He said he was not well at the time he signed the document and felt pressured to do so and was unable to say no (T139, lines 4 - 20).

1. It was put that Mr Mura was the logical source of the minutes and I should so find. I am inclined however to accept his denial that he or someone in his office was the source of the minutes. It hardly sits comfortably with the plaintiff's case that Mr Mura was incompetent in the keeping of the financial records of Valenest but meticulous to ensure that minutes were kept chronicling the acquisition of each of the relevant as assets of the trust.

1. Whilst there were many unsatisfactory aspects to Mr Mura's evidence and whilst he did make concessions about the untruth of one part of his statutory declaration he denied knowledge of the minutes. There was no attempt to seek access to other minutes Mr Mura may have prepared during relevant years from which some comparison could have been made. As I have said I am inclined to accept him when he says he did not prepare them.

1. I do find it quite extraordinary that Mr and for that matter Mrs Ceccattini were as vague as they were about who it was who prepared the minutes and where they were signed for example. I would have expected that if it had been a practice of Mr Mura prompted by information about the fact of acquisition (there being no suggestion he played any role at all in the choice of properties to be purchased) to have prepared minutes they would have been able to recall that with clarity. After all Mrs Ceccattini apparently appreciated their importance because she says she kept them in plastic sleeves. These were supposedly important purchases being singled out from the many others and the subject of apparently special attention. She and her husband I have found intended the relevant property be an asset of the trust.

1. The minutes were in my view created at the same time by a person or persons wishing to create apparently contemporaneous documents in order to assist the company prove its acquisition of the three properties were assets of the trust. On the evidence I consider that they were most likely created at or about the time of the refinancing and when the company was going bad. I am of the view they were brought into existence between 2008 and early 2009. Mr Mura is I believe a convenient whipping boy and had nothing to do with their preparation.

1. The Ceccattini's were the persons who had to gain most from these so-called minutes. I have to say that I find the evidence given by them on this topic especially their lack of clarity as to the time, place and the identity of the person who prepared them as implausible and I do not accept it. It was put by the plaintiff's counsel that if I were to find the minutes were not contemporaneous I would have to find that they were the product of a fraudulent conspiracy. I do not need to go that far in my mind. As it turns out in relation to the relevant property I have found that it was acquired as an asset of the trust and so to that extent the minute is indeed a reflection of the truth, but not proof of it.

1. I will make this final observation however about them. Their focus became for very good reason much less pronounced when the land tax documentation was produced late in the trial and paragraphs in the affidavits of Mr and Mrs Ceccattini in respect of which I had deferred rulings where admitted without objection.

Conclusion

1. For the reasons referred to above I make the following declaration:

• A declaration that the property known as 503 Victoria St Wetherill Park, being land comprised in Lot 22 of Deposited Plan 853602 is property of the Ceccattini Family Trust.

1. I note that the defendant has conceded that if I were to make the declaration above there would be no need to make a vesting order pursuant to s71 of the Trustee Act. I will however hear submissions on that issue if necessary. The parties are at liberty to approach my associate to arrange to have the matter re-listed on this issue if it is desired.

1. I reserve the question of costs. Again I will grant liberty to have the matter re-listed so that I can hear submissions and again the parties can approach my associate for the purpose of fixing a convenient date.

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Decision last updated: 20 May 2011