Voukidis v C & O Voukidis Pty Ltd (in liq)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2017 00141

PETER VOUKIDIS	First Plaintiff
KATHY VOUKIDIS	Second Plaintiff
v
C & O VOUKIDIS PTY LTD (ACN 064 963 054) (IN LIQUIDATION)	Defendant

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JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATES OF HEARING:	25, 26, 27 and 28 September, 5 and 6 October 2017
DATE OF JUDGMENT:	24 May 2018
CASE MAY BE CITED AS:	Voukidis and Anor v C & O Voukidis Pty Ltd (in liq)
MEDIUM NEUTRAL CITATION:	[2018] VSC 267

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CONTRACT – Written agreement for loan and mortgage – Authenticity of written agreement disputed by defendant – Whether document prepared and executed on date it bears.

MORTGAGES AND SECURITIES – Equitable mortgage – Intention to enter mortgage agreement – Whether transfer of interest in property unequivocally referable to a contract of the nature alleged.

MORTGAGES AND SECURITIES – Equitable lien – Indebtedness – Oral agreement or arrangement not adequately pleaded – Indebtedness claim unsubstantiated in any event – No unconscientiousness established.

EQUITY – Trusts – Implied trusts – Resulting trusts – Transfer of property interest to corporate trustee of family trust for no consideration – Whether presumption of resulting trust arose – Presumption precluded by Conveyancing Act 1919 (NSW) s 44(1) – Whether resulting trust established on the evidence – Whether plaintiffs demonstrated an intention to retain beneficial ownership following the transfer.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr L C Hogan	Eales & Mackenzie (Town Agents for Spinks Eagle Lawyers)
For the Defendant	Mr P W Collinson QC and Ms E Dias	Sinisgalli Foster (until 5 April 2018, Foster Nicholson Lawyers)

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The 60 Belmore Street property.................................................................................................. 2
Acquisition of the 60 Belmore Street property by the defendant.......................................... 4
Sale of the 60 Belmore Street property in 2012 by the security holder.................................. 7
Claims to the Belmore Street proceeds...................................................................................... 7
Plaintiffs first notified the Liquidator of their claim in October 2016................................... 7
Plaintiffs commenced this proceeding in June 2017................................................................ 9
The defendant contends the 12 February 2003 letter was a ‘fraudulent fabrication’.......... 9
Witnesses called on behalf of the plaintiffs............................................................................. 12
Witness called on behalf of the defendant.............................................................................. 12

Issues to be determined by the Court.......................................................................................... 12

Agreed position concerning historical ownership of 60 Belmore Street, Burwood by Voukidis family............................................................................................................................................ 13

The plaintiffs’ case at trial was conducted on basis that they held a one half interest in the 60 Belmore Street property....................................................................................................... 15

Evidence adduced on behalf of the Plaintiffs............................................................................ 16

Evidence given by Peter Bouzanis............................................................................................ 16
Family relationship with Peter and Kathy Voukidis.................................................... 16
Events in February 2003................................................................................................... 17
Events of June 2015............................................................................................................ 22
Observations on Mr Bouzanis as a witness................................................................... 25

Evidence given by Peter Voukidis............................................................................................ 26
The events of February 2003............................................................................................ 26
Subsequent events............................................................................................................. 30
The curl at the end of Peter Voukidis’ signature.......................................................... 31
Increase of the AMP loan facility in August 2009......................................................... 33
Tax returns.......................................................................................................................... 35
Pension application........................................................................................................... 36
Observations on Peter Voukidis as a witness................................................................ 39

Evidence given by Kathy Voukidis.......................................................................................... 40
Observations on Kathy Voukidis as a witness.............................................................. 44

Evidence given by Christos Voukidis...................................................................................... 45
The financial agreement made between Christos and Olga....................................... 46
Procuration of the NAB facility (of $1 million) in December 2002, ‘in anticipation of’ the transfer of Peter and Kathy’s interest................................................................. 48
Revenue Ruling No. DUT 012: Dutiable Transactions Evidence of Value................ 52
Preparation of the transfer of the plaintiffs’ interest in the 60 Belmore Street property 54
Telephone conversations with Mr Bouzanis in 2003.................................................... 55
Execution of the 12 February 2003 letter and the curl on Peter Voukidis’ signature 56
Failure to prepare and register a mortgage to secure Peter and Kathy’s interest.... 58
Increase of the AMP loan facility in August 2009......................................................... 58
Peter and Kathy’s assets prior to receipt of the pension.............................................. 60
Meeting with Peter Bouzanis that led to the 23 June 2015 letter................................ 61
The plaintiffs’ pension application................................................................................. 65
Report as to affairs of C & O Voukidis Pty Ltd............................................................. 69
Alteration of documents in proceeding before Vickery J............................................ 75
Rental income for 60 Belmore Street after 2003 and monthly mortgage repayments 78
Observations on Christos Voukidis as a witness.......................................................... 78

Evidence adduced on behalf of the defendant........................................................................... 79

Evidence given by Gary Fettes.................................................................................................. 79
Winding up of C & O Voukidis Pty Ltd......................................................................... 80
Belmore Street proceeds................................................................................................... 80
Liquidator calls for proofs of debt.................................................................................. 80
Liquidator’s investigation of the plaintiffs’ claim......................................................... 81
Orders and directions made by Elliott J......................................................................... 82
Observations on Mr Fettes as a witness......................................................................... 82

Issue 1: The letter dated 12 February 2003................................................................................... 82

Observations and findings on the relevant evidence............................................................ 83
Mr Bouzanis’ evidence renders it unlikely that the 12 February 2003 letter was prepared by him, on or about the date it bears........................................................................ 83
Peter and Kathy Voukidis had little recall of the loan transaction or of signing the letter in February 2003......................................................................................................... 86
The curl evidence renders it most unlikely that the letter was signed by Peter Voukidis in or about February 2003.............................................................................................. 88
The evidence that Christos Voukidis gave presented as a reconstruction of events rather than a genuine recollection........................................................................................... 89
In later transactions or events there is no mention of the 12 February 2003 letter or of any loan having been owed by C & O Voukidis Pty Ltd to Peter and Kathy Voukidis.................................................................................................................................. 91

Conclusion.................................................................................................................................... 93

Issue 2: Did the plaintiffs and the defendant agree that the plaintiffs’ transfer of the 60 Belmore Street property would be made in accordance with the agreements alleged in paragraph 7 of the Statement of Claim?............................................................................................................ 93

Issue 3: If yes to 2, is the defendant in breach of the terms of those agreements?............. 95

Issue 4: Are the plaintiffs entitled to be recognised as equitable mortgagees in respect of the Belmore Street proceeds pursuant to an equitable mortgage?.......................................... 95

The first question: whether the acts of part performance upon which the plaintiffs seek to rely are unequivocally referable to a contract.............................................................................. 98
The second question: the general nature of that contract.................................................... 99
The third question: whether the contract relied upon is of that general nature............... 99
The plaintiffs have failed to establish an entitlement to be recognised as equitable mortgagees in respect of the Belmore Street proceeds........................................................................... 99
Conclusion.................................................................................................................................. 105

Issue 5: Alternatively, are the plaintiffs entitled to relief by way of an equitable lien or a resulting trust in respect of the Belmore Street proceeds?................................................................ 105

Neither the basis for the equitable lien nor the basis for the resulting trust is expressly pleaded............................................................................................................................................ 105
The claimed equitable lien....................................................................................................... 107
In any event, have the plaintiffs established that the defendant acted unconscientiously in obtaining the plaintiffs’ interest in the 60 Belmore Street property?....................... 118
Alternatively, does the defendant hold the Belmore Street proceeds on a resulting trust in favour of the plaintiffs?............................................................................................................... 118
Principles regarding the presumption of a resulting trust upon a gratuitous transfer 122
Section 44(1) of the Conveyancing Act 1919 (NSW)................................................... 128
Establishing a resulting trust in the absence of a presumption................................ 131

Conclusion: the plaintiffs have failed to establish a resulting trust.................................. 138

Issue 6: If the Court is satisfied that the plaintiffs are entitled to equitable relief, should such relief be refused on the grounds of laches?........................................................................ 139

The defence of laches — applicable legal principles............................................................ 139
The delay asserted by the defendant...................................................................................... 142
The plaintiffs contend that any delay, if proven, is insufficient to give rise to laches.... 144
Observations on the laches defence....................................................................................... 145

Summary of Conclusions............................................................................................................. 146

HER HONOUR:

Introduction

This proceeding concerns dealings in a property situate at 60 Belmore Street, Burwood in New South Wales (‘the 60 Belmore Street property’). The relevant events took place about 15 years ago. A central issue in the proceeding is the authenticity of a letter from the plaintiffs to the directors of the defendant, dated 12 February 2003, and signed by each of the parties.

The plaintiffs allege that the 12 February 2003 letter conditioned the transfer of their interest in the 60 Belmore Street property to the defendant. At that time, the defendant was the trustee of a family trust of which the plaintiffs’ son and his then wife were directors. In particular, the plaintiffs rely on that letter as evidencing a security arrangement between them and the defendant, alternatively as giving rise to an equitable lien, or alternatively a resulting trust. The signed original of the 12 February 2003 letter is no longer available, but copies of varying quality have been produced in evidence.

The defendant disputes the authenticity of the letter. It does not challenge that the signatures on the document are those of the parties said to have signed. But it disputes that the letter was prepared by the plaintiffs’ solicitor in February 2003 and was signed by the respective parties on or about the date it bears. Rather, it suggests that it is more likely that the letter was created in about 2015, by the plaintiffs’ son, and was signed by the relevant parties around that date, when it became apparent to the plaintiffs’ son that this was the last route open to assert a claim to the proceeds remaining after the sale of the 60 Belmore Street property by the secured creditor in 2012. Further, the defendant denies that the plaintiffs are entitled to the declaratory relief sought in their pleading, or at all. Alternatively, the defendant contends that in circumstances where the letter was revealed to the liquidator for the first time in October 2016, the plaintiffs are barred from obtaining any such declaratory relief by reason of the doctrine of laches, given their ‘prolonged, inordinate and inexcusable delay’ in bringing this proceeding.

The 60 Belmore Street property

The plaintiffs, Peter and Kathy Voukidis, purchased the 60 Belmore Street property in about July 1986. At that time, the property consisted of a complex of four small apartments, all held on the one title.[1] When purchasing the property, Peter and Kathy provided the deposit and they borrowed the balance from the bank. From an ownership perspective, the title to the property was effectively to be separated into four shares, with Peter, Kathy and their children Christos (sometimes referred to as Chris) and Panagiota (Penny) holding the four shares as joint tenants. To that end, the instrument of transfer for the 60 Belmore Street property recorded the transferee as ‘Peter Voukidis, Kathy Voukidis, Christos Voukidis and Panagiota Voukidis all of 3 Wyatt Avenue, Burwood as joint tenants’.
[1]Certificate of Title Folio Identifier 1/332361.

In March 1991, Penny Voukidis sold her interest in the 60 Belmore Street property. It was Peter’s understanding that Penny sold her interest to Christos, but the instrument of transfer prepared following the sale recorded the transaction as a transfer as to one half to Peter and Kathy and as to the other half to Christos, rather than a transfer of the whole of her interest to Christos. Once registered, the transfer gave rise to an adjustment of the respective proportions and manner in which the ownership of the property was held by Peter and Kathy and Christos and recorded on the title.

At this point it is convenient to note that the ownership of the 60 Belmore Street property, as recorded in the official Register of Lands in New South Wales (‘the Register’), differs from that which members of the Voukidis family generally understood to be the position at all relevant times. During the trial, the parties presented to the Court an agreed summary of the relevant transactional history which is discussed further below. As a result, notwithstanding the ownership position as recorded on the title, in this proceeding the plaintiffs do not assert, as between themselves and Christos, that prior to the transfer in February 2003 of their interest to C & O Voukidis Pty Ltd (ACN 064 963 054) they held an interest of more than one half of the Belmore Street property.

At all relevant times, the 60 Belmore Street property was rented. The Voukidis family had an agent collecting the rent and paying the expenses, and the agent paid the balance into an account in the name of ‘Voukidis Holdings’ held at the Australia and New Zealand Bank Ltd. That remained the case even after Penny Voukidis sold her fractional interest in the property. The monies in that account were used for paying expenses for the 60 Belmore Street property, and not personal expenses generally.

On and from 26 June 1997, the 60 Belmore Street property was mortgaged to the National Australia Bank Ltd to secure a principal amount of $375,000. But on or about 17 December 2002, Christos Voukidis arranged for a discharge of that mortgage to be executed by and on behalf of the National Australia Bank, and some months later it was lodged for registration. At that time, Christos Voukidis and his (then) wife, Olga Voukidis, were in the process of negotiating a ‘financial agreement’ for the purpose of resolving all financial matters between them, even though (so Christos said) there was then no suggestion of a divorce or marital separation taking place between them. Each of Christos and Olga was represented by solicitors,[2] and the documentation was negotiated between them over a period of time, commencing from about August 2001.
[2]Delaney Lawyers in the case of Olga, and Coudert Brothers in the case of Christos.

By 23 January 2003, Christos and Olga Voukidis had entered into a binding financial agreement under Part VIII of the Family Law Act 1975 (Cth). Under the financial agreement, Christos and Olga recorded their agreement as to how all property or financial resources acquired by them during their marriage were to be dealt with. Relevantly, the ‘Assets Schedule’ set out as Annexure A to the financial agreement recorded the value of Christos’ interest in the 60 Belmore Street property as reflecting a ‘half share’ interest (rather than the 37.5 per cent interest recorded in his name on the Register at that time).

Acquisition of the 60 Belmore Street property by the defendant

At some point after 23 January 2003, but before 31 January 2003,[3] Christos Voukidis executed a transfer of the whole of his right, title and interest in the 60 Belmore Street property to C & O Voukidis Pty Ltd. That company, which is now in liquidation,[4] is the named defendant in this proceeding. C & O Voukidis Pty Ltd was formerly the trustee of the Voukidis Family No 2 Trust, a discretionary trust, and its directors were Christos and Olga Voukidis. The consideration for the transfer from Christos was expressed to be ‘Pursuant to Orders made by the Local Court-Family Matters, File No. FL013/030027 on 23/1/03’ which is a reference to the court orders made in relation to the financial agreement.
[3]The transfer referred to the orders made by the Local Court on 23 January 2003 under Part VIII of the Family Law Act 1975 (Cth), and the stamp duty endorsement of ‘No Duty Payable’ was dated 31 January 2003.
[4]On 27 May 2014, the Federal Court of Australia ordered that the company be wound up under the Corporations Act 2001 (Cth) and that Mr Gary Stephen Fettes be appointed as its liquidator.

In anticipation of that transfer, Christos (and Olga) as directors of C & O Voukidis Pty Ltd, in its capacity as trustee of the Voukidis Family No 2 Trust, procured a letter of offer from the National Australia Bank Ltd dated 18 December 2002, for the establishment of a loan facility in the sum of $1,000,000. The loan documentation accompanying the letter was signed by Mr Clinton (Wally) Waters on behalf of the bank. The ‘Details’ of the ‘FlexiPlus Mortgage Facility’ as set out in the loan documentation described the security required for the loan facility as being:

(a) Registered Mortgage over property situate at 60 Belmore Street, Burwood, NSW;

(b) Registered Mortgage over property situate at 5 Wyatt Avenue, Burwood, NSW, and

(c) Guarantee and Indemnity for $1,000,000 given by Christos Voukidis and Olga Voukidis.

Of the ‘Securities’ listed above, the property at 5 Wyatt Avenue, Burwood was at that point apparently owned (and occupied) by Christos and Olga. In the case of 60 Belmore Street, the ownership position as recorded on the title was that Christos effectively owned three eighths or 37.5 per cent, and Peter and Kathy together effectively owned five eighths or 62.5 per cent, in the manner described further below.

Clause 9 of the Terms and Conditions of the loan facility provided as follows:

9. Securities

You will give or obtain for the Bank the securities shown in the Details to secure the unpaid balance of your account and any other amounts you owe the Bank under this agreement.

You acknowledge that this agreement is an agreement covered only by the securities (if any) shown in the Details.

On 2 January 2003, Christos and Olga as directors of C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust executed the loan documentation and an instrument of mortgage in favour of the bank. Under cross-examination, Christos Voukidis accepted that, as directors, he and Olga were offering to the bank the whole of the 60 Belmore Street property as security for the loan, not merely the 50 per cent share that he was transferring across to the trust pursuant to the financial agreement. Christos said that that was done ‘in anticipation of’ C & O Voukidis acquiring the whole of the title to that property. He explained that the loan transaction ‘was approved in anticipation of the transfer occurring, but the transfer hadn't occurred as at December 2002, so the bank wasn't in a position to finalise this transaction until the transfer had occurred, and the stamping of that didn't occur until 2003.’[5]
[5]Transcript 26/09/17, C Voukidis XXN, at 207–208.

At some point in late 2002 or early 2003 — there is a lack of clarity about the precise timing — Christos approached his parents and discussed with them the possible transfer of their interest in the 60 Belmore Street property to the Voukidis Family No 2 Trust. In February 2003, the plaintiffs consulted a local solicitor whom they knew through family connections, Mr Peter Bouzanis, and obtained some advice. At or about that time, Christos arranged for the 60 Belmore Street property to be valued, for stamp duty purposes. The valuation, which was conducted by MVS Commercial Valuers and dated 10 February 2003, valued the property at $1,300,000 for ‘stamp duty assessment purposes’.[6]
[6]See TB 1:410 [Tab 29].

By an instrument of transfer dated 21 February 2003, executed by each of the plaintiffs as transferor, Peter and Kathy Voukidis transferred the whole of their right, title and interest in the 60 Belmore Street property to ‘C & O Voukidis Pty Limited ACN 064 693 054’. The instrument of transfer records an acknowledgement by the plaintiffs of ‘receipt of the consideration of $1.00’. The transfer was dutiable and was endorsed as stamped on 21 February 2003, with duty in the sum of $32,052.50 having been paid on a dutiable amount of $812,500.00. The stamp duty endorsement reflected the ownership position as recorded (it is agreed, erroneously) on the title as at the date of the instrument of transfer.[7]
[7]That is, the dutiable amount reflected the transfer of a 62.5 per cent interest in the 60 Belmore Street property, rather than the half interest that Peter and Kathy Voukidis assert they held.

On 15 April 2003, the discharge of the National Australia Bank mortgage and the transfers from Peter and Kathy Voukidis, and from Christos Voukidis, in each case to C & O Voukidis Pty Ltd, were registered. The fresh mortgage given to the National Australia Bank by C & O Voukidis Pty Ltd was also registered on 15 April 2003.[8]
[8]The fresh mortgage was signed by Christos and Olga Voukidis and dated 2 January 2003. The mortgage was registered as dealing no. 9537047A.

Notwithstanding Peter and Kathy Voukidis’ execution of the instrument of transfer and the terms in which it was expressed, it has recently emerged that they contend that the transfer of their interest in the 60 Belmore Street property was conditioned by an agreement made at a point prior to 21 February 2003 between them and Christos on behalf of C & O Voukidis Pty Ltd, in its capacity as trustee of the Voukidis Family No 2 Trust. Further, they say that such agreement was recorded in a letter prepared by their solicitor dated 12 February 2003 that was executed by each of them, and by Christos and Olga as directors of C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust. The authenticity of that letter agreement is disputed by the defendant in this proceeding.

Sale of the 60 Belmore Street property in 2012 by the security holder

Subsequently, in or about March 2012, the 60 Belmore Street property was sold by the National Australia Bank as security holder, following which the whole of the fee simple in the property was transferred to a third party. It appears that Peter and Kathy Voukidis were aware at that time, or later became aware, that the property was sold. Following the sale, approximately $1.43 million was paid to the National Australia Bank, and pursuant to an order of the Supreme Court of New South Wales, the proceeds of sale remaining after the discharge of the secured creditor’s interest were placed in a trust account. Currently, the balance of the proceeds of sale (plus accrued interest) is being held by Mr Gary Fettes, the liquidator of the defendant company, in an investment account in accordance with orders made by Justice Judd on 11 May 2016 (the ‘Belmore Street proceeds’).[9]
[9]See TB 2:498–501. Paragraph 3 of those orders provided that:
The funds standing to the credit of the “NAB controlled monies interest bearing account” referred to in the order made in the Supreme Court of New South Wales on 12 and 28 July 2010 (as extended and varied, including by the orders of this Court on 16 March 2012 and 21 December 2012 in proceeding S CI 2010 04463) be transferred from that account to an interest-bearing special bank account in the name of the fifth defendant [C & O Voukidis Pty Ltd] and be held in the latter account until further or other order.
See further paragraph 177 below.

Claims to the Belmore Street proceeds

The Belmore Street proceeds are currently the subject of rival claims — one made by the liquidator, another made by an entity named Ambridge Investments Pty Ltd (receiver appointed) (in liquidation) in Supreme Court proceeding S CI 2005 02014, and more recently, the claim made in this proceeding by Peter and Kathy Voukidis.

Plaintiffs first notified the Liquidator of their claim in October 2016

The liquidator first became aware of Peter and Kathy Voukidis’ alleged interest in the Belmore Street proceeds in late October 2016. Following the liquidator’s call for proofs of debt on 24 October 2016, the solicitors acting for Peter and Kathy Voukidis wrote to the liquidator by letter dated 26 October 2016 claiming that they were creditors of C & O Voukidis Pty Ltd (in liquidation), in its capacity as trustee of the Voukidis Family No 2 Trust. In that letter, the solicitors claimed that pursuant to a letter agreement dated 12 February 2003, Peter and Kathy Voukidis are creditors of the company in the sum of $1,806,822.00, arising from the sale by them to the company of their half share in the 60 Belmore Street property. Further, they contended that Peter and Kathy Voukidis are secured creditors ‘because there is in place an agreement to charge the subject property (which attaches to the proceeds of sale of the property) as security for the Loan [of $650,000, payable over 15 years with interest at 7.5% per annum]’.[10] Alternatively, they contended that Peter and Kathy Voukidis ‘have a vendors’ lien over the property to the extent of the purchase price’, or alternatively that ‘the property and any sale proceed[s] (to the extent of one half) remain [their] beneficial property on the basis that (to the extent the Loan and security are no[t] enforceable which is denied) same is held on resulting trust for [them].’[11] Under cover of their letter, the solicitors also provided to the liquidator a (somewhat degraded) copy of the letter agreement dated 12 February 2003 and the valuation conducted by MVS Commercial Valuers dated 10 February 2003.
[10]See TB 2:528–530 [Tab 43].
[11]Ibid.

No caveat on the title to the 60 Belmore Street property has ever been lodged by or on behalf of Peter and Kathy Voukidis. And no claim of the kind now asserted by their solicitors had been notified or communicated to the liquidator at any earlier point. Indeed, the letter from Peter and Kathy’s solicitors was the first occasion on which the liquidator had been informed of the existence of the letter agreement dated 12 February 2003 and provided with a copy.[12]
[12]The liquidator contended that the alleged liability of the company to Peter and Kathy Voukidis is not recorded in the company’s accounts, nor was their claim referred to in the Report as to Affairs filed by Christos Voukidis as the director of the company or in any documents obtained by the liquidator in the course of the liquidation.

In a separate proceeding in this Court, proceeding S CI 2017 01400, on application by the liquidator, Justice Elliott made orders on 23 May 2017, including orders to the effect that:

(a)The liquidator:
(i)is justified in not further investigating the claim by Peter and Kathy Voukidis to the Belmore Street proceeds; and
(ii)would be justified in not defending, and in causing the company not to take further steps to defend, any proceeding brought in relation to such a claim by them.

(b)Peter and Kathy Voukidis have leave under section 471B of the Corporations Act 2001 (Cth) to bring a proceeding against C & O Voukidis Pty Ltd (in liquidation) in respect of the matters the subject of the letter dated 26 October 2016.
(c)Peter and Kathy Voukidis shall not enforce any judgment in the new proceeding without further leave of the Court.
(d)Break Fast Investments Pty Ltd (ACN 090 648 990) (‘Break Fast’) have leave to defend, for and on behalf of C & O Voukidis Pty Ltd (in liquidation), the new proceeding.

Plaintiffs commenced this proceeding in June 2017

Against that background, by writ filed on 13 June 2017, Peter and Kathy Voukidis commenced this proceeding against C & O Voukidis Pty Ltd (in liquidation). The declaratory relief Peter and Kathy Voukidis seek is formulated so as to give effect to one or other of the (alternative) claims outlined in their solicitors’ letter dated 26 October 2016, namely by way of declaration for an equitable mortgage, an equitable lien or a resulting trust.[13] In defending the claims made, Break Fast, on behalf of the defendant, effectively denies that Peter and Kathy Voukidis are entitled to the declaratory relief sought in their pleading or at all. Alternatively, Break Fast pleads that Peter and Kathy Voukidis are barred from obtaining any such declaratory relief by reason of the doctrine of laches.
[13]See also the Amended Statement of Claim dated 25 September 2017 and Amended Defence dated 27 September 2017.

The trial of this proceeding commenced on 25 September 2017 and occupied six (non-consecutive) days, concluding on 6 October 2017.

The defendant contends the 12 February 2003 letter was a ‘fraudulent fabrication’

In opening the case on behalf of the defendant, counsel referred to the 12 February 2003 letter and characterised it as a ‘fraudulent fabrication’. There was no pleading in the defence to that effect, counsel apparently having taken the view that ‘it was sufficient to deny the alleged agreement’, having seen it ‘as a matter of proof by the plaintiffs as to their case’.[14] Counsel for the defendant then elaborated on the position the defendant maintained by way of defence, stating:
[MR COLLINSON:] … It has been, I would have thought, fairly obvious that the case for the defendants [sic] has been to deny that this 12 February letter embodies a true agreement. Credit has been in issue from the outset.
If I could elaborate on what I mean by fraudulent fabrication. Essentially, the defendant doesn't challenge that the signatures on the document are those of the parties said to sign, but we suggest that the document would have been created somewhere around 2015 by Christos Voukidis and signed around that date by the relevant parties and Mr Christos Voukidis did that when it became apparent that this was the last route open to him to assert a claim to these proceeds which had been frozen from the sale of the property, originally by the Supreme Court of New South Wales in July 2010.
So the witnesses who suggest to the contrary, we say in our case that their evidence should not be accepted, and to put it more bluntly, that they're telling lies, and we include in that this solicitor, Mr Bouzanis, who's been proffered as a supposed independent verification of the case.
Now, if the 12 February letter is a false document in the sense I've described, then the whole of the plaintiffs' case falls to the ground. I don't think - we don't accept that there is an alternative case that could be mounted if there is no such agreement as that described in the 12 February letter. And just for clarity, Your Honour may note from the pleadings that the only pleaded case is that the agreement was in writing and implied - that is, it's not pleaded that it was partly oral.
Now, as I say, that is a precis of what the substance of the case was. We, in the end, of course, don't have to satisfy Your Honour that the document was created in 2015 or thereabouts. We don't bear an onus. Your Honour simply needs to make a finding as to whether the case is made out by the plaintiffs. But that is how we put the defence.[15]
[14]Transcript 25/09/17, at 34–35.
[15]Transcript 25/09/17, at 36–37 (emphasis added).
Counsel for the plaintiffs, Mr Hogan, submitted that if the defendant was alleging that the letter was a ‘fraudulent fabrication’, considerations of procedural fairness required that there be some particularisation of what that entailed because ‘one doesn't know, at least at this stage, what exactly “fraudulent fabrication” is intended to mean and who is it intended to be meant against, and not knowing that at this stage is part of the problem of fairness.’[16] Further, he contended that if there is an allegation of fraud, or a matter as serious as a ‘fraudulent fabrication’, then the defendant does have an onus of proof in relation to that matter.
[16]Transcript 25/09/17, at 82.

As the parties were in agreement that amended pleadings were required to be filed, to correct the plaintiffs’ pleading of the extent of the joint tenancy interest asserted and to change the reference to a ‘vendor’s lien’ to an ‘equitable lien’, the Court indicated that it would also require the defendant to clearly articulate the ‘fraudulent fabrication’ contended for. The following exchange then ensued with counsel for the respective parties:

MR COLLINSON: Your Honour, we are not propounding a case in fraud. My friend hasn't cited any authority. A case has been pleaded that an agreement was made in writing on a particular date. We deny that.
HER HONOUR: You deny the entirety of the statement?
MR COLLINSON: We deny that the agreement was made. We weren't party to the creation of that document. We are going to challenge, in the way I have described, its authenticity and I meant it, as I described specifically, in the sense that the document was obviously prepared at some point and signed by those persons at some point. We simply say it wasn't prepared in February 2003, it is as simple as that.
Our friends have known this. We have had Mr Joyce poring over the documents; he is a handwriting expert. We have had - Fettes' affidavit in the proceeding before Elliott J basically said that there was nothing to support the existence of the liability. So it is implicit in the denial because there's no room left other than in that denial for the proposition that it wasn't executed to reflect an arrangement between those parties, and that's our case. We are not a plaintiff seeking to plead a case in fraud.
HER HONOUR: I understand that. I am just wanting to make sure I understand the way it is being put because I wasn't present before Elliott J or Judd J, or whenever the earlier affidavit was filed, I want to understand your case, and you did use the word "fraudulent fabrication", or words to that effect. I just want to be clear about what your case is because there may come a point where I have got to inform witnesses who are giving evidence about their position before the court. I want to be clear as to what the case is so that if a time comes when I need to do that, I know why I am doing it or whether there is a need to do it.
MR COLLINSON: Yes. If Your Honour pleases.
HER HONOUR: Mr Hogan, I think the position is sufficiently clear. Mr Collinson is not propounding the fraud. He is taking issue with the agreement that you plead was made. I understand that. He's taking issue with the whole of the pleading of the agreement having been made, and to the extent that the document has been prepared and signed, his dispute is that it was prepared in February 2003, I think that's the position.
MR HOGAN: Yes, Your Honour. If the case of the defendants doesn't extend to alleging fraud, including insofar as the question of the witnesses is concerned, then that doesn't concern me.
HER HONOUR: I think that is now clarified, so I think we can move forward.[17]

[17]Transcript 25/09/17, at 84–85 (emphasis added).

The trial of the proceeding took place against that background.

Witnesses called on behalf of the plaintiffs

In support of their case, each of Peter and Kathy Voukidis gave evidence, as did their son, Christos, and the solicitor they consulted in 2003, Mr Peter Bouzanis. Given the commonality in surname, in these reasons I will often refer to members of the Voukidis family by their first names, but in doing so I mean no disrespect to them.

Witness called on behalf of the defendant

The liquidator of the defendant, Mr Gary Stephen Fettes, was called to give evidence on behalf of the defendant. In advance of the trial commencing, the defendant had also filed expert reports from Mr Trevor Joyce, a handwriting expert, and two affidavits from Mr George Tsogas, one of the solicitors acting for the defendant, but neither of them was called.

Issues to be determined by the Court

During the course of the trial, the parties formulated and agreed upon a list of the issues to be determined by the Court, as follows:

1         Was the letter dated 12 February 2003:
(a)       prepared for or on behalf of the plaintiffs; and
(b)      signed by the plaintiffs and on behalf of the defendant,
in each case, on or about the date it bears?
2Did the plaintiffs and the defendant agree that the plaintiffs’ transfer of the 60 Belmore Street property would be made in accordance with the agreements alleged in paragraph 7 of the Statement of Claim?

3If yes to 2, is the defendant in breach of the terms of those agreements?
4Are the plaintiffs entitled to be recognised as equitable mortgagees in respect of the Belmore Street Proceeds pursuant to an equitable mortgage?
5Alternatively, are the plaintiffs entitled to relief by way of an equitable lien or a resulting trust in respect of the Belmore Street Proceeds?
6If the Court is satisfied that the plaintiffs are entitled to equitable relief, should such relief be refused on the grounds of laches?

Before turning to address each of those issues, it is necessary to describe in a little more detail the events that took place in relation to the transfer of Peter and Kathy Voukidis’ interest in the 60 Belmore Street property and the 12 February 2003 letter relied upon by the plaintiffs. A substantial body of evidence was given at trial by the witnesses called on behalf of the plaintiffs. Each of them had filed affidavits in advance of the hearing and, after some limited examination in chief, each was cross-examined at length. Kathy Voukidis gave her evidence through an interpreter.

As noted in the Introduction, the ownership of the 60 Belmore Street property as recorded in the Register differs from that which members of the Voukidis family generally understood to be the position at all relevant times. Accordingly, the parties agreed upon the following summary of the transactional history.[18]
[18]Under cover of an email dated 2 October 2017, the town agents for the plaintiffs’ solicitors provided the Court with a summary of transfer of interest document for the 60 Belmore Street property, which was stated to be ‘as agreed to between Counsel for the parties.’

Agreed position concerning historical ownership of 60 Belmore Street, Burwood by Voukidis family

Upon the purchase of the 60 Belmore Street property in 1986, the instrument of transfer recorded the transferee of the property as ‘Peter Voukidis, Kathy Voukidis, Christos Voukidis and Panagiota Voukidis all of 3 Wyatt Avenue, Burwood as joint tenants’.[19]
[19]TB 1:357 [Tab 21].

In about March 1991, Penny sold her one fourth share as joint tenant in the property, apparently to Christos, but as noted above, the instrument of transfer recorded the transaction as one involving the transfer of one half of Penny’s share to Peter and Kathy and one half of Penny’s share to Christos. The instrument of transfer described the transferee as:

Peter Voukidis of 25 The Causeway, Enfield, Courier and Kathy Voukidis of the same address, his wife as per one half share as joint tenants and Christos Voukidis of the same address, Accountant, as per the remaining one half share as tenants in common.[20]
[20]TB 1:358–359 [Tab 22]. Transfer Z545088 was recorded on the Register on 18 March 1991.

The ‘First Schedule Directions’ on the reverse side of the transfer recorded the following direction concerning the registered proprietor:

First Schedule Directions

(A) Folio Identifier

(B) Direction

(C) Name

Prop

Peter Voukidis, Kathy Voukidis & Christos Voukidis as joint tenants in ¾ share, Peter Voukidis & Kathy Voukidis as joint tenants in ⅛ share and Christos Voukidis in ⅛ share as tenants in common

The Certificate of Title issued on 3 November 1997, several years after the registration of Transfer Z545088, certified that the registered proprietor of the 60 Belmore Street property was as described in the First Schedule Directions above, namely:

PETER VOUKIDIS, KATHY VOUKIDIS & CHRISTOS VOUKIDIS as joint tenants in ¾ share, PETER VOUKIDIS & KATHY VOUKIDIS as joint tenants in ⅛ share and CHRISTOS VOUKIDIS in ⅛ share as tenants in common.[21]

[21]TB 2:712 [Tab 77], citing Transfer Z545088.

On or before 31 January 2003, Christos Voukidis executed an undated instrument of transfer whereby he transferred ‘the whole of his right, title and interest’ in the 60 Belmore Street property to ‘C & O Voukidis Pty Ltd ~~as trustee of the Voukidis Family No 2 Trust~~ ACN 064 693 054’. The consideration was stated to be ‘pursuant to orders made by the Local Court—Family Matters, File No. FL013/030027 on 23/1/03’. The transfer was subsequently stamped on 31 January 2003 and endorsed ‘no duty payable’.[22]
[22]TB 1:409 [Tab 28]. The transfer was registered on 15 April 2003 as Transfer 9537046C. Under re-examination, Christos Voukidis gave evidence that in order for the transfer made pursuant to the Local Court order to take effect, they were required to arrange for the discharge of the existing National Australia Bank mortgage and retrieve the title deeds so that they could be produced in order for the transfer to be completed. A discharge of mortgage dated 17 December 2002 was registered as dealing 9537044G: TB 1:405 [Tab 26].

On or about 21 February 2003, Peter and Kathy Voukidis executed an instrument of transfer dated 21 February 2003 whereby they transferred ‘the whole of their right, title and interest’ in the 60 Belmore Street property to ‘C & O Voukidis Pty Ltd ~~atf the Voukidis Family No 2 Trust~~ ACN 064 693 054’.[23] The consideration for the transfer was stated to be $1.00. The transfer was stamped on 21 February 2003 and was endorsed as having a ‘dutiable amount’ of $812,500.00 on which duty of $32,052.50 was paid.
[23]TB 2:421 [Tab 31]. The transfer was registered on 15 April 2003 as Transfer 9537045E.

On 15 April 2003, the transfers to C & O Voukidis Pty Ltd of the respective interests of Peter and Kathy on the one hand, and Christos on the other, were registered. The parties are agreed that when Peter and Kathy transferred their interest in the three fourths share they held as joint tenants with Christos, the joint tenancy was severed upon registration, resulting in the transfer of both of their individual one fourth shares and their interest as joint tenants in the one eighth share. In other words, if taken collectively, they transferred a total five-eighths share or 62.5 per cent of the property. Similarly, upon registration of the transfer from Christos, the joint tenancy was severed and he transferred to C & O Voukidis Pty Ltd both his interest in the three fourths share he held as joint tenant with Peter and Kathy (resulting in the transfer of his individual one fourth share), and the one eighth share registered in his name. In total, Christos transferred a total three eighths share or 37.5 per cent of the property.

Following the subsequent sale of the 60 Belmore Street property by the security holder in March 2012, the whole of the fee simple in the property was transferred to a third party.[24]

The plaintiffs’ case at trial was conducted on basis that they held a one half interest in the 60 Belmore Street property

[24]TB 2:572–573 [Tab 48].

Against that background, Peter and Kathy Voukidis amended their statement of claim at the commencement of the trial to plead that ‘[a]s at January 2003, the Plaintiffs, despite the ownership stated on [the] title of the Property, considered that they owned one half of the Property.’[25] Accordingly, their case at trial was conducted on the basis that at all relevant times they held a one half interest in the property.
[25]Amended Statement of Claim dated 25 September 2017, at [3A]. The defendant’s response was to ‘not admit the allegations in paragraph 3A’: see Defence to the Plaintiffs’ Amended Statement of Claim, dated 2 October 2017, at [3A].

Evidence adduced on behalf of the Plaintiffs
Evidence given by Peter Bouzanis

The first witness called on behalf of the plaintiffs was Mr Peter Bouzanis. Neither of the plaintiffs (nor Christos) was present in Court when he gave his evidence. An affidavit sworn by Mr Bouzanis dated 4 July 2017 was tendered as Exhibit P1.

Mr Bouzanis is currently a salaried partner with Owen Hodge Lawyers in Sydney. However, back in February 2003, he was practising as a solicitor on his own account, conducting a general suburban practice under the name of ‘Peter Bouzanis and Associates’. In that role, as part of his practice, he undertook some conveyancing work.

Family relationship with Peter and Kathy Voukidis

Prior to 12 February 2003, Mr Bouzanis had, from time to time, acted on behalf of the plaintiffs, who were uncle and aunt to his then wife, Helen Bouzanis. It transpired that some years earlier, in 1991 or thereabouts, he had also prepared the transfer of Penny Voukidis’ interest in the 60 Belmore Street property. Mr Bouzanis said that around February 2003 he saw Peter and Kathy Voukidis on a regular basis at family social functions, once or twice each year, and this continued up until about 2012. He also knew Christos Voukidis but did not see him on a regular basis. He said he might have seen Christos at wider family functions but did not keep in contact with him, and had never acted for him.

Events in February 2003

Mr Bouzanis could recall having been consulted by Peter and Kathy Voukidis in or around February 2003 in relation to the potential transfer of their interest in the 60 Belmore Street property. Mr Bouzanis could not recall how many times he met with them but believed it was probably on two or three occasions. He said that he ‘would have’ opened a file in respect of the matter and ‘would have charged fees’ but not at the normal rate. He recalled that initially Peter Voukidis came to his office to discuss the matter, and then a little later, on or about 12 February 2003, both Peter and Kathy met with him, at or following which one or more telephone conversations with their son, Christos, also took place.

The gist of the instructions that Mr Bouzanis said were given to him, initially by Peter Voukidis, was to the effect that ‘Chris [Christos] wants to transfer his share [of the 60 Belmore Street property] into his family trust and he has agreed to buy mine [Peter’s] and Kathy’s one half share.’[26] Mr Bouzanis asked how much Christos would pay for their share and Peter Voukidis said Christos was getting a valuation done and he also wanted vendor finance. Mr Bouzanis told Peter Voukidis to return once a purchase price had been agreed and ‘we will get something put in writing’.
[26]Ex P1, at [7].

‘At some later stage’, which Mr Bouzanis believes was on 12 February 2003 or thereabouts, he met with both Peter and Kathy Voukidis and discussed the proposed transaction.[27] He asked whether they had agreed a purchase price and Peter Voukidis told him that Christos had said the trust would pay them $650,000 for their share. Peter Voukidis told him Christos wanted to refinance and have ‘a loan over the property’ and he asked Mr Bouzanis if Christos could be telephoned. Mr Bouzanis then called Christos while Peter and Kathy were at his office. During that phone conversation, Christos said to him words to the effect that ‘[t]he Trust will give them [Peter and Kathy] a mortgage, but I [Christos] am getting a refinance from NAB so I want the title clear until that goes through and then you can register the second mortgage.’[28] A further discussion then took place regarding loan terms such as the length of the loan, the interest rate and the name of the trustee. Mr Bouzanis said he could recall having had a conversation with Christos Voukidis over the phone pertaining to the finance from the National Australia Bank but could not definitely say it took place on 12 February 2003. He could also recall that there was a reason why C & O Voukidis Pty Ltd could not give a first mortgage over the property and that that information came from Christos, but he said Christos could have provided him with that information on an earlier date. Mr Bouzanis believed, based on what he said was his normal practice, that he prepared the letter dated 12 February 2003 on the same day that Peter and Kathy had attended his office.
[27]Ex P1, at [8]; Transcript 25/09/17, Bouzanis XXN, at 93.
[28]Ex P1, at [9].

Mr Bouzanis said that during the course of his consultations with Peter and Kathy Voukidis he advised them to have ‘something in writing and to get this all properly documented’ and suggested they should ‘get a mortgage over the property as well’.[29] Under cross-examination, he mentioned that he had also recommended to them that they lodge a caveat over the title to protect their interest, but nothing to this effect was included in his affidavit.
[29]Transcript 25/09/17, Bouzanis XXN, at 96–97; Ex P1, at [8].

Importantly, in the course of being cross-examined, Mr Bouzanis moved away from the definitive statements he had made in his affidavit and became noticeably less certain about whether he had prepared the 12 February 2003 letter. In his affidavit, he stated that on 12 February 2003, he prepared a document, being the 12 February 2003 letter, which he handed to Peter Voukidis when he met with him and Kathy. The document was said to be in the form of a letter from Peter and Kathy addressed to C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust, and marked for the attention of Christos and Olga Voukidis. The letter, which was dated 12 February 2003 and headed ‘Loan to assist with the transfer of 60 Belmore Street, Burwood’, stated as follows:[30]
[30]See TB 1:109 [Tab 11] (signatures omitted).

Further to our conversations we can confirm that we are able to assist with your request to transfer our interest in the abovementioned property on the following basis:

Amount of Loan:

$650,000

Purpose:

Transfer of 60 Belmore Street, Burwood to C & O Voukidis Pty Ltd as trustee for Voukidis Family No 2 Trust.

Lender and Mortgagor:

Peter and Kathy Voukidis of
3 Wyatt Avenue, Burwood NSW 2134

Borrower and Mortgagee:

C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust.

Facility and term:

Interest only for a term to be confirmed but not longer than 15 years from the date of the transfer.

Security property:

60 Belmore Street, Burwood – Lot 1 DP 332361

Valuation:

Based on valuation by MVS Valuers dated 10 February, 2003.

Interest Rate:

7.5% per annum

Costs and Expenses:

All costs and expenses relating to this loan including stamp duty, legal fees and valuations are payable by the Borrower

Documentation:

All necessary documentation to secure the loan.

Special Conditions:

The documentation for the loan to be finalised after completion of the transfer and registration of NAB mortgage.

Please confirm your acceptance of the above by signing below.
Yours faithfully,
Peter and Kathy Voukidis
We accept the terms of the loan on the terms outlined above to transfer 60 Belmore Street, Burwood to C & O Voukidis Pty Ltd atf Voukidis Family No 2 Trust.

Witness – Name and Address

Directors of C & O Voukidis Pty Ltd

At the outset of his cross-examination, Mr Bouzanis confirmed that he had prepared the 12 February 2003 letter. However, he was unable to produce a copy of the letter from the records of his practice. He said that he ‘would have’ retained a copy of the letter on his file, but that upon the merger of his practice with Owen Hodge Lawyers in 2013, he had shredded documents that were older than seven years. Later in the cross-examination, he said that in June 2015, when Christos had shown him the 12 February 2003 letter, he recollected that it was his letter because of ‘the typeset, the way it was set out’, and he added that ‘the wording is [his] wording’, but he agreed that he did not have a recollection of actually having prepared the letter some 10 years earlier. A little later again, he said that having initially seen the clients, his normal practice would have been to dictate the letter in their absence, and then either he or his secretary would have inserted the lot details and DP number in the letter. He said the letter would have been drafted by the time Peter and Kathy came back in to see him.

Under cross-examination, when it was pointed out to Mr Bouzanis that the 12 February 2003 letter contained an error, in that it erroneously described Peter and Kathy as ‘Lender and Mortgagor’ and C & O Voukidis as ‘Borrower and Mortgagee’, Mr Bouzanis agreed that he would ‘[n]ot ordinarily’ make such an error. He also agreed that there was possibly some ambiguity in the wording used in the letter to describe when interest payments were required to be made and that the ‘facility and term’ item in the 12 February 2003 letter appears to mean that for a period to be confirmed, but not longer than 15 years, the borrower would pay interest only. Mr Bouzanis sought to explain away this lack of clarity by saying that the letter was ‘just a summary, very very brief summary of the loan’ and not a final document.

Mr Bouzanis confirmed that prior to preparing the letter he did not recall having seen a written valuation prepared by the valuers. He did not know the MVS valuation was dated 10 February 2003 and could not recall being given that information by Peter and Kathy. He thought that the information was likely provided by Christos, because Christos was the only possible source of the information, and he acknowledged it was also possible that Christos himself used that information to draft the 12 February 2003 letter. In cross-examination, Mr Bouzanis said he presumed the valuation (of $1,300,000) was ‘double the 650’. He had assumed there was some existing debt on the property given it was refinanced, but said there was no discussion about how much that debt might reduce the value of Peter and Kathy Voukidis’ interest in the property.

The 12 February 2003 letter makes no mention of the purchase price payable for Peter and Kathy’s interest in the 60 Belmore Street property. When Mr Bouzanis was questioned about this, he acknowledged that the vendors could not loan back $650,000 unless the purchase price was $650,000; and said his understanding was that the sale would be for $650,000 with a loan back of the full purchase price. However, he said that did not mean that the first thing he would expect to record on a document such as the 12 February 2003 letter would be the purchase price, because he was preparing loan documentation, not transfer documentation.

Mr Bouzanis could not recall having seen a title search of 60 Belmore Street. He confirmed that Peter and Kathy did not give him the lot details, and thinks it likely that he or his secretary carried out a free ‘LPI’ search on-line to obtain those details, on the same day he met with Peter and Kathy Voukidis. He rejected the suggestion that there was no source of that information available to him on that day.

In his evidence, Mr Bouzanis described the 12 February 2003 letter as ‘a summary of what I believed [Peter and Kathy] should be doing and it was calling for instructions to prepare the final documents’.[31] He explained that it was not prepared on letterhead because it was not addressed to the clients but rather to Christos and Olga Voukidis. He said that was because its purpose was to seek confirmation of the deal. Under cross-examination, Mr Bouzanis initially believed the letter was written to confirm his instructions, but on reflection he stated that he believed it was a letter from Peter and Kathy Voukidis to their children to confirm the loan arrangements. He could not recall why the document was prepared but he presumed it must have been requested.
[31]Transcript 25/09/17, Bouzanis XXN, at 105–106.

Mr Bouzanis did not prepare, and was not involved in the preparation of, the instrument of transfer pertaining to Peter and Kathy’s interest in the 60 Belmore Street property. Mr Bouzanis said that after he met with Peter and Kathy in early February 2003, he did not hear further from them in respect of the proposed loan, even though he continued to see them socially at family functions once or twice a year. He could not recall having raised the matter with them again and said he is ‘not in the practice of picking up behind [his] clients’.[32]
[32]Transcript 25/09/17, Bouzanis XXN, at 109.

Events of June 2015

Mr Bouzanis had no further involvement in the matter until June 2015, when Christos Voukidis contacted him. He said that before he saw Christos in mid-2015 he had not seen him ‘for a long, long time’. At that time, Mr Bouzanis was working at Owen Hodge Lawyers. Christos contacted him initially by SMS message and then they subsequently met up over a cup of coffee. When they met, Christos gave him a copy of the 12 February 2003 letter and asked him to prepare a letter outlining his understanding of what occurred when his parents had consulted him in 2003. Christos showed him the original of the 2003 letter, or at least a document which looked to Mr Bouzanis like an original, bearing clear signatures, as well as giving him a photocopy. Mr Bouzanis does not believe that the version Christos showed him had ‘copy’ stamped on it. He said the version of the letter with the degraded signatures[33] was provided later by the plaintiffs’ solicitor, Mr Spinks, in the course of the preparation of his affidavit, and Mr Bouzanis does not know why two different versions exist. Mr Bouzanis said Christos did not tell him what he was going to do with the letter, nor did he tell him that the (former) trustee of the family trust, C & O Voukidis Pty Ltd, was in liquidation. He knew that C & O Voukidis Pty Ltd was formerly the trustee of the Voukidis No 2 Family Trust but he said he did not ask himself why he was writing to a different trustee. Mr Bouzanis said that he was aware that Christos was going through a divorce and he ‘thought [Christos] wanted it [the letter] for something to do with his family law proceedings’ and added that ‘[t]here was never a mention of any liquidation.’[34]
[33]Exhibited to his affidavit as Annexure A: TB 1:109 [Tab 11].
[34]Transcript 25/09/17, Bouzanis XXN, at 95.

In due course, Mr Bouzanis prepared and caused to be sent to Voukidis Management Pty Ltd (as trustee for the Voukidis Family No 2 Trust) a letter on the letterhead of Owen Hodge Lawyers dated 23 June 2015. He said that his recollection was ‘mainly’ assisted by reading the 12 February 2003 letter which ‘jolted his memory’.[35] In the 23 June 2015 letter, Mr Bouzanis confirmed that back in or about February 2003 he had acted for Peter and Kathy in relation to the loan to assist with the transfer by Peter and Kathy of their one-half share of the 60 Belmore Street property to C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust, at the request of their son, Christos. Relevantly, the 23 June 2015 letter stated:[36]

Our Peter Bouzanis was informed by Peter, Kathy and Chris [Christos] Voukidis that the Voukidis Family No 2 Trust was a discretionary trust and that Peter and Kathy Voukidis were beneficiaries of that Trust, as was Chris Voukidis and his wife at the time, Olga Voukidis.
Our Peter Bouzanis recalls that as the proposed transfer was to be made for nil consideration, our Peter Bouzanis advised Peter and Kathy Voukidis it would be advisable to protect their interest in the property that they document a loan facility from them to C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust for an amount equal to 50% of the current value of the property and that loan be secured by way of an unregistered mortgage over the property and the registration of a caveat over the property.
Our Peter Bouzanis recalls discussing with Peter and Kathy Voukidis the terms of the proposed loan, the details of which are contained in a document prepared by our Peter Bouzanis dated 12 February 2003, a copy of which we attach hereto.
Further, our Peter Bouzanis recalls informing Peter and Kathy Voukidis that the terms of the loan should be reduced to writing as should the terms of the security to be provided by C & O Voukidis Pty Ltd in respect of the loan. It is our Peter Bouzanis’ recollection that he was advised by Peter and Kathy Voukidis that they would consider the advice provided by our Peter Bouzanis and then instruct him to prepare the necessary documents immediately following transfer of their right, title and interest in the property to C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust and refinancing of the property by C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust with National Australia Bank Limited.
It transpires that Peter and Kathy Voukidis did not return to our Peter Bouzanis so that he may document the terms of the loan and security aforementioned.
…

[35]Transcript 25/09/17, Bouzanis XXN, at 111.

[36]See TB 1:110–111 (Annexure B to Ex P1).

Mr Bouzanis said that when dealing with Christos Voukidis’ request he did not open a file for the purposes of preparing the June 2015 letter, nor did he charge for it. Under cross-examination, he explained that while the header of the 23 June 2015 letter contained a reference ‘PXB:EAV/242314’, that file reference had nothing to do with (this) Chris Voukidis. He said:

. . . When Chris [Christos] came and saw me, I was acting for another Chris Voukidis, who is related to him, in a transaction, it was a conveyance. Because I wasn't going to open the matter, it was just a request, I placed the letter that I generated, the 23 June 2015 letter in that file, but that file had nothing to do with this Chris Voukidis, it was his cousin.[37]

[37]Transcript 25/09/17, Bouzanis XXN, at 110.

Mr Bouzanis said that while he did not prepare the instrument of transfer of Peter and Kathy’s interest in the 60 Belmore Street property, he had seen it recently and was aware that the consideration stated for the transfer of their interest was $1.00. Under cross-examination, when he was taken to his statement in the 23 June 2015 letter that he recalled the proposed transfer was to be made for ‘nil consideration’, he was asked whether he remembered that Peter Voukidis or someone else had told him that the transfer was to be made for ‘nil consideration’. He replied:

---My recollection was that there wasn't going to be any physical exchange of moneys between the Voukidises and the trust, there was going to be a vendor finance arrangement, that's my understanding, and it may be wrongly worded, but that was - there wasn't going to be any physical exchange of moneys on transfer.
. . .
[COUNSEL:] When you say "vendor finance", that paragraph of the letter on p.110, it actually suggests something different, I suggest. It suggests that the sale is going to be for nil consideration. Doesn't that mean a nil purchase price?---No. It is probably wrongly worded, but my – what I meant was that there was not going to be any physical money paid over on transfer.[38]

[38]Transcript 25/09/17, Bouzanis XXN, at 90–91.

At the conclusion of the cross-examination, it was put to Mr Bouzanis that he did not have any recollection at all of giving advice to Peter and Kathy about this matter. He disputed this, but in doing so he acknowledged that he did not recall preparing the 12 February 2003 letter:

[COUNSEL:] I want to suggest to you, Mr Bouzanis, that you don't have any recollection at all of giving advice to Peter and Kathy about this matter around February 2003?---I have a recollection of giving them advice about this matter, whether it was February 2003 or March I am not sure but the advice was given to them about this transaction at the time of the transfer.
You certainly have no recollection of preparing written documents following the giving of advice to them, do you?---As I said before, the document that I was shown, the 2003 document, stood out as if it was my document.
When Christos showed it to you?---Yes.
In June 2015?---Yes.
But you don't recollect, yourself, preparing it?---No.[39]
[39]Transcript 25/09/17, Bouzanis XXN, at 112 (emphasis added).

Observations on Mr Bouzanis as a witness

The extracts of Mr Bouzanis’ evidence set out above convey the lack of certainty exhibited in the evidence he gave orally at trial. For the most part, he had difficulty recalling what actually took place and he spoke in terms of what he ‘would have done’ rather than describing (to the best of his recollection) what took place and when. Under cross-examination he frankly acknowledged that he could not recall preparing the 12 February 2003 letter, and agreed that he would ‘[n]ot ordinarily’ make the error of misdescribing the mortgagor and mortgagee parties. He had difficulty in providing any satisfactory explanation of how it was that he obtained the details of the valuation and the title particulars recorded in the letter, in circumstances where he acknowledged he did not have a copy of the valuation or a title search. Further, as his file was no longer available, he had no notes or other record of his consultation with Peter and Kathy Voukidis which might assist his recollection.

The position is that while Mr Bouzanis did recall having seen Peter and Kathy Voukidis in relation to a transaction concerning their interest in the 60 Belmore Street property, his recollection of when that occurred appeared to have been heavily influenced by the date of the 12 February 2003 letter, even though he was willing to accept that his recall of the relevant dates, and the order in which things occurred, might be slightly incorrect. He also acknowledged that when he prepared his June 2015 letter his recollection had been assisted by the 12 February 2003 letter having ‘jolted his memory.’

In closing submissions, counsel for the defendant contended that Mr Bouzanis showed a willingness to tailor his evidence to assist the plaintiffs’ case. I do not regard that as a fair description of him or the totality of the evidence he gave. Having observed Mr Bouzanis answering questions whilst under cross-examination, the impression I gained was that he was careful not to overstate the position and acknowledged that he had little recall of the detail of the events that took place in 2003. I accept his evidence that Peter and Kathy Voukidis consulted him at some point prior to 21 February 2003 in relation to a transaction concerning the transfer of their interest in the 60 Belmore Street property to C & O Voukidis Pty Ltd as trustee of the Voukidis Family No 2 Trust. Beyond that, however, given the acknowledgements he made, his inability to recall what took place, and the evident lack of clarity as to what he knew about the transaction and lack of detail about what advice he gave them, I am unable to attach much weight to the evidence he gave. But I do accept that in mid-2015, when he prepared the 23 June 2015 letter at the request of Christos Voukidis, he was not aware that it was required for the purpose of submission to the liquidator of C & O Voukidis Pty Ltd.

Evidence given by Peter Voukidis

Peter Voukidis is 85 years of age. He and his wife, Kathy, who is also aged in her 80s, have been married for 57 years. Peter worked as a courier from 1990 until he retired in 2000. Prior to that job, Peter and Kathy had also owned and operated a coffee lounge in the old Westfield Shopping Centre at Burwood, which they sold in early 1989.

The events of February 2003

Peter Voukidis gave evidence about the background to the transaction in 2003 whereby he and Kathy transferred their joint interest in the 60 Belmore Street property to the family trust. He had sworn three affidavits, the first dated 4 July 2017 (‘first affidavit’) which was tendered as Exhibit P2.1, the second dated 17 July 2017 (‘second affidavit’) which was tendered as Exhibit P2.2 and the third dated 28 July 2017 (‘third affidavit’) which was tendered as Exhibit P2.3.

In his first affidavit, Peter Voukidis stated:

. . .
12.At some stage in January or February 2003, Christos came to our house at 3 Wyatt Avenue. Christos and Olga (Christos’ wife) lived next door at the time. I cannot recall the conversation between me and Christos. I recall that at some stage we discussed the sell [sic] my and Kathy’s share in the Property to a company Christos and Olga owned. I have always understood that Kathy and I were going to be paid by the company for our shares in the Property with interest.
13.At some stage in early 2013 [sic], a valuation was done on the Property. . . .
14.At some stage I went and saw a lawyer. His name is Peter Bouzanis …
15.I cannot recall the precise words that I exchanged with Mr Bouzanis during our meeting. Exhibited to me is a document marked “PV-3” dated 12 February 2003. My signature appears just below the words “Yours faithfully”. I cannot recall when I signed this document. . . .
16.At some stage, I signed a transfer of my share in the Property. Exhibited hereto and marked “PV-5” is a copy of the transfer. My signature appears next to the letters “PV”. I do not recall when I signed the transfer but I did not read it when I signed it. I never agreed to receive $1 for my and Kathy’s share of the Property. I wanted money to invest in the property market in Greece.
17.At some stage after Kathy and I signed the transfer, Christos told me that we will get a mortgage over the Property and that he was getting documents prepared. We were never given any such documents.
18.I now understand that the property was sold and the proceeds of the sale are held by a liquidator.
19.I have never received any payment of any loan monies or any monies in respect to my transfer of the property to the Company.[40]

[40]Ex P2.1, at [12]–[19] (emphasis added).

In his second affidavit, in responding to a Notice to Produce served by the defendant seeking production of the original of the letter dated 12 February 2003, Peter Voukidis stated:

. . .
3.I do not have in my possession the original of the Letter. I have searched my house and I cannot locate the original of the Letter.
4.I do not know where the original of the Letter [sic]. I do not know who has it.
5.After I signed the Letter, I gave the letter to someone, although I cannot now recall who that was. I cannot recall whether I signed the letter at home or at Mr Bouzanis’ office, so I am unsure whether I gave it to Mr Bouzanis or to Christos.[41]

[41]Ex P2.2, at [3]–[5] (emphasis added).

The above extracts show that Peter Voukidis had little or no recall of the relevant events, or when or where he was when he signed the transfer or the letter dated 12 February 2003. Further, to the extent that he does recall anything about the notion that he and Kathy would have a mortgage over the property, he says it was mentioned by Christos at some point after he and Kathy had signed the transfer of their interest in the property to C & O Voukidis Pty Ltd.

His oral evidence, given for the most part under cross-examination, did not advance the matter further. Peter Voukidis recalled that at some stage he went to see Mr Bouzanis but he could not recall whether he saw him in relation to this transaction or about something else. He could not recall the words exchanged. He recalled Mr Bouzanis giving him something to sign but he did not recall whether he read it.

Peter Voukidis recalled that he and Kathy had what they thought was a half share in the property and Christos had the other half share, and both half shares were put into the family trust. Mr Voukidis recalled that in 2003 he and Kathy transferred their share in the 60 Belmore Street property to the family trust, but he did not recall exactly when or what documents he signed. When he was shown the instrument of transfer, Peter Voukidis acknowledged that it bore his signature; he said he had not seen the document before, but acknowledged he must have seen it when he signed it. He stated that the witness recorded on the transfer, Euripides Sclavenitis, was the father-in-law of Christos (i.e. Olga’s father) but is now deceased.[42]
[42]Transcript 26/09/17, P Voukidis XXN, at 151.

In his first affidavit, Peter Voukidis made a statement to the effect that since 2003 he had been chasing Christos about ‘the money’ but Christos had kept saying ‘we will settle this later’ and ‘you still have your pension’ or ‘you will be paid later’. Towards the end of the cross-examination, when Peter Voukidis was being asked about that statement, he frankly acknowledged that he could recall ‘[h]ardly anything’ about the 60 Belmore Street transaction because, he said, ‘I don’t remember exactly when it was signed by me, I don’t remember.’[43] When he was pressed further, the following exchange ensued:
[43]Transcript 26/09/17, P Voukidis XXN, at 147.

[COUNSEL:] What can you remember - if you could tell Her Honour what you remember about that transaction?---I don't remember anything. I was never told anything.
Can you remember seeing a valuation of 60 Belmore Street prepared in about 2003?---No, no, I never did.
Can you remember a valuation for a sum of $1.3 million?---No.
Can you remember any discussions you had with Christos about this transaction?---No, I never had any.
Can you remember whether you saw a solicitor about that transaction?
---Yeah, that's it. Yeah, yeah, I went to see Peter Bouzanis at the time. Yes, you are right.
Can you remember anything that was said between you and Mr Bouzanis?

---Exactly what it was all about, I don't remember. I don't remember even sign - I remember sign the paper, he gave me to sign something, but I don't remember I read it or not, I don't remember that. He said to me, "Come here, Peter - uncle" - he call me uncle because he was married to my niece.
Can I ask you to go to p.50 in that book?---Yes. What's this?
This is a form of transfer of the interests of you and your wife in the property at 60 Belmore Street. It is dated 21 February 2003. Do you see that your signature appears in the lower right-hand corner?---Yes.
And your wife's signature below that?---Yes.
Do you remember anything about signing this document?---No. It is my signature, okay, but I haven't seen this document before.
You must have seen it when you signed the document?---Must have seen it, but I never give attention to it. I don't know. I can't remember.
Can you turn back a few pages to p.45?[44]---Yes.
Can you remember anything about signing this document?---Yes, but when and where I signed it? I can't remember where.
. . .
Can you tell Her Honour whether you actually remember meeting with Mr Bouzanis to do with this particular transaction whereby you put your interests in the trust?---No, I don't remember that, I don't remember. Maybe I went to his office, I don't know. I don't remember. I went to his office. Which office I went to, I don't remember.
. . .
I think you said earlier the one at p.50[45] you can't remember where you were or why you signed it?---Not even this one.
I'm sorry?---Not even this document here, the one says $650,000.[46] I didn't remember I even got it.
I'm sorry, I missed your answer. Just say the same thing again?---I said I don't remember this document signed it, where I signed it, in the - what's the name? - his office or not and I don't remember the 650, these documents, I don't remember. I don't remember. I don't remember. It is my signature, yes.[47]
[44]This was the 12 February 2003 letter.
[45]This was the transfer dated 21 February 2003.
[46]This is a reference to the 12 February 2003 letter.
[47]Transcript 26/09/17, P Voukidis XXN, at 147–150 (emphasis added).

Subsequent events

In his first affidavit, Peter Voukidis said he understood that the 60 Belmore Street property had been sold and that the proceeds of sale are being held by a liquidator. At trial, however, he did not recall that the proceeds of sale went into a bank account and he believed the money had gone towards Christos and Olga’s bankruptcy. Peter Voukidis deposed that he had never received any payment of loan monies or any monies in respect of his transfer of the property to C & O Voukidis Pty Ltd. Under cross-examination he recalled that C & O Voukidis Pty Ltd owed him money and that it told him he would be paid later. He recalled that the amount of the loan was between $600,000 and $700,000 and said he has since seen a document which shows a figure of $650,000.

[283][2015] VSCA 124, at [40].

In the absence of a presumption, the onus is on the plaintiffs to establish that a resulting trust arises. Thus, in the present case, in order to make good their resulting trust claim, the plaintiffs need to establish what (at the time of the transfer) their intentions were in transferring the property to the defendant, in particular with respect to the location of the beneficial interest in the property; in effect, they need to show that they had an intention to retain[284] the beneficial ownership of their interest in the 60 Belmore Street property following the transfer.
[284]Note that references to ‘intention to retain the beneficial interest’ or ‘intention to withhold the beneficial interest’ are common in the case law but they are properly understood as shorthand for an intention that the transferee be under an obligation to deal with the property for the benefit of the transferor (since prior to the transfer the transferor holds ‘an entire and unqualified legal interest and not two separate interests, one legal and the other equitable’): DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431, 463 (Aickin J).

In Charles Marshall Pty Ltd v Grimsley,[285] the High Court referred with approval to the following passage from Snell’s Equity, regarding the admissibility of evidence of a transferor’s intentions:

The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration . . . But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.[286]

[285](1956) 95 CLR 353.

[286]Ibid, at 365, citing R E Megarry and P V Baker, Snell’s Principles of Equity (Sweet & Maxwell, 1954, 24^th ed.), at 153.

In Calverley v Green,[287] Deane J added the following qualification to that passage:

This passage constitutes a guide to the evidence which will ordinarily be relevant and admissible to confirm or rebut a presumption of resulting trust or a “presumption” of advancement, namely, acts and declarations of the parties before or at the time of the vesting of the legal estate and admissions against interest. The passage should not, however, be accepted as good law to the extent that it purports to lay down that no evidence other than that mentioned will ever be admissible. Regardless of whether the circumstances are such as to bring the case into one of the categories of advancement, evidence of the relationship — both legal and factual — between the parties will always be admissible.[288]

[287](1984) 155 CLR 242.

[288]Ibid, at 269.

His Honour went on to note that subsequently, in Martin v Martin,[289] a majority of the High Court approved of statements to the effect that where evidence of the subjective intention of a person is relevant, the evidence of that person of their intention at the time of the transaction is admissible notwithstanding that ‘it must in every case be liable to observations which tend to diminish its weight’.[290]
[289]See (1959) 110 CLR 297, at 303–305.
[290]Calverley v Green (1984) 155 CLR 242, at 270.

In the present case, in oral closing submissions, counsel for the plaintiffs submitted that the intention they must show is an intention not to part with their beneficial interest in the 60 Belmore Street property.[291] It was submitted that there is evidence that they held such an intention at the time of the transfer, being the combination[292] of (1) evidence that they did not receive any valuable consideration for their interest in the property[293] and (2) evidence that they did not intend to make a gift of their interest in the 60 Belmore Street property[294] as well as evidence that they were not in the habit of making gifts of their property generally.[295]
[291]Transcript 05/10/17, at 467–468 (Mr Hogan).
[292]Transcript 06/10/17, at 481–482 (Mr Hogan).
[293]Ex P2.1, at [19]; ex P3, at [9].
[294]Transcript 26/09/17, K Voukidis XXN, at 163–164.
[295]Transcript 26/09/17, K Voukidis XXN, at 167.

The defendant, on the other hand, contended that it would be insufficient for the plaintiffs to establish that they did not intend to make a gift of their interest in the 60 Belmore Street property. Rather, it said, the plaintiffs must show that they intended to retain the beneficial interest in the property. Counsel for the defendant submitted that the plaintiffs ‘can’t hide in the generality of something that’s the opposite of a gift’ but must assert their case by stating it (whatever it may be) ‘positively’, noting that the case the plaintiffs have pleaded as giving rise to a liability is one that ‘is solely referable to the 12 February [2003] letter.’[296] The defendant submitted that there is no basis in the evidence for finding that the plaintiffs intended to retain their beneficial interest following the transfer, and that on the contrary, the evidence pointed towards an intention to make a gift.
[296]Transcript 05/10/17, at 372 (Mr Collinson QC).

In oral closing submissions, counsel for the plaintiffs submitted that there is evidence ‘of [the plaintiffs] not giving away, retaining, the beneficial interest’.[297] But when pressed by the Court as to what it was that was said to manifest an intention on the part of the plaintiffs to retain the beneficial interest, notwithstanding their execution of the transfer, counsel for the plaintiffs referred the Court to the Vlahos and Xiao Hui Ying cases, stating:

MR HOGAN: If I can perhaps answer that question by referring to the Vlahos case that my learned friend took the court to, and that is a case where an individual transferred – when the property was purchased, I should say, the property was entered into the name of a discretionary trust, but nonetheless the court was able to find, based upon intention, that there was an intention to retain a beneficial interest in the individual. That is the situation, in effect, that applies here and it is the reason why I have mentioned that case in my submissions. The reason, alternatively, I have mentioned the other case, the Xiao Hui Ying case, is because it is an example not of that purchase price resulting trust but of the inter-parties’ transfer resulting trust.[298]

[297]Transcript 05/10/17, at 468 (Mr Hogan).

[298]Transcript 05/10/17, at 469–70 (Mr Hogan).

As counsel for the plaintiffs did not refer the Court to any specific evidence of the plaintiffs, the Court returned to the matter the following day, seeking clarification from counsel as to the way the submission was being made:

HER HONOUR: When I raised the question with you about switching off the presumption you then went on to refer me to Vlahos’ case. You said the court was able to find based upon intention that there was an intention to retain a beneficial interest in the individual. You are saying in a similar way you contend on the basis of the evidence of intention here, there’s an intention to effectively retain a beneficial interest in the individual until the payment is made.
MR HOGAN: That’s quite right, Your Honour. In Vlahos the situation with the gift evidence was, as I took it to be, slightly different. Evidently on appeal there was an issue whether or not the issue of gift could be raised at all.
HER HONOUR: That’s right.
MR HOGAN: However, in this case, there’s evidence that there was no intention to make a gift. In Vlahos an argument was run to the effect that the fact of transfer to a trustee of a trust, discretionary trust, of which the wider family is beneficial is indicative of a gift. A slightly separate scenario here because of the evidence that there was no intent, the positive evidence of no intent of a gift. I grant what my learned friend said yesterday in relation to Vlahos, the matter of somewhat different facts, in that case there being a 30-year-old at the time of transfer, in this case a 70-year-old at the time of transfer. But it is that lack of evidence, of no intention to give a gift that is a crucial difference from a factual point of view here.[299]

[299]Transcript 06/10/17, at 482–483 (Mr Hogan).

Against that background, it will be seen that the plaintiffs, relying on Vlahos, effectively submitted that the mere fact that their interest was transferred to a discretionary trust does not demonstrate an intention to part with the beneficial interest. Indeed, they say that the present case is stronger due to the existence of what they contended was positive evidence that there was no intention to make a gift of their interest in the property.[300] They submitted that that evidence is not displaced by the evidence that their interest in the property was transferred to a discretionary trust which they did not control.
[300]Transcript 05/10/17, at 482 (Mr Hogan). The ‘positive evidence’ being a reference to the evidence that Kathy Voukidis gave under cross-examination that she did not think she intended to make a gift of the 60 Belmore Street property.

In closing oral submissions, the plaintiffs sought to buttress their evidence with a submission to the effect that the only reason they would have gone to see Mr Bouzanis in early 2003 was to seek advice about the basis upon which a transaction for value would occur; observing that if a gift had been intended there would have been no need for Mr Bouzanis to be involved. They contended that on the whole of the facts, the proper conclusion should be that it was intended that the plaintiffs would receive market value for the property in due course.

The defendant submits that in dealing with the plaintiffs’ resulting trust argument, the relevant question of intention is not whether or not there was an intention to make a gift. Rather, the inquiry for the Court is whether one discerns, from the facts and circumstances relied on, an intention to maintain beneficial ownership. The defendant says that when the evidence given by the plaintiffs is examined, it is clear that there was no such intention. In closing, counsel submitted that ‘[n]owhere do the plaintiffs say they didn’t intend that the[ir beneficial] interest travel over to the trust’; but rather, ‘[t]heir complaint is that the right price wasn’t obtained’.[301] Further, it was submitted that in the context of the relationship between the plaintiffs and their son, it is open to the Court to conclude that the plaintiffs had no difficulty with transferring their interest into a discretionary trust in the belief that their son would simply look after them.
[301]Transcript 06/10/17, at 499 (Mr Collinson QC).

Turning to the case the plaintiffs sought to make, the plaintiffs’ reliance upon Vlahos does not supply an evidentiary foundation for the Court to make a finding of a resulting trust in this case. Vlahos was a very different case to the present one. In Vlahos, the presumption of resulting trust was enlivened, and the Court of Appeal found that the trial judge had ‘correctly concluded that the presumption of resulting trust had not been rebutted’,[302] in which event James Vlahos, by reason of his financial contribution, was entitled to an equitable interest in the property. As Kyrou JA explained:

It was common ground at trial that, if it was established that James had contributed $141,600 to the acquisition cost of the Property, a presumption of resulting trust would arise and the onus would be on the applicants to rebut the presumption. It follows that, if, on the totality of the evidence, no inference could be drawn about the common intention of James and his father at the time the Property was purchased, the presumption would not be displaced and would govern the outcome of the proceeding.[303]

[302][2017] VSCA 166 at [81] (per Kyrou JA, with whom Tate and McLeish JJA agreed).

[303]Ibid, at [82].

His Honour then reviewed the evidence relied upon to support the ‘common intention to make a voluntary contribution’ argument, observing that the evidence was ‘largely speculative and could not, either individually or in combination, found an inference that such a common intention existed at the time the Property was purchased.’[304] In those circumstances, the presumption was not rebutted.
[304]Ibid, at [84].

In the present case, the presumption does not apply, and the onus is on the plaintiffs to establish that a resulting trust arises. It is not sufficient for the plaintiffs to simply point to evidence that Mrs Voukidis gave under cross-examination, to the effect that she did not think they were making a gift of the 60 Belmore Street property. Rather, what they must establish is that in transferring the property to the trust, they had an intention to retain their beneficial interest in the 60 Belmore Street property following the transfer. No contemporaneous, objective evidence of the plaintiffs’ intention was referred to as supporting that position. The evidence that was adduced by the plaintiffs was for the most part directed to their primary case, which is one that pleads an agreement as to loan and a mortgage as recorded in the 12 February 2003 letter, and has as its factual predicate that the plaintiffs intended to transfer beneficial ownership to C & O Voukidis Pty Ltd, in its capacity as trustee of the Voukidis Family No 2 trust. As noted earlier, the evidence that each of the plaintiffs gave about consulting Mr Bouzanis was vague and lacking in detail. When giving their evidence, Peter and Kathy Voukidis demonstrated that they had little or no actual recall of their consultations with him, or of any advice he might have given them. Mr Bouzanis’ recollection was not much better. What is clear, however, is that he did not prepare the transfer of their interest in the property or witness their execution of it, nor did he follow up with them about the matter at any later point. In my view, the submission made on behalf of the plaintiffs, to the effect that the only reason that they would have gone to see Mr Bouzanis was to seek advice about a transfer for value, because if a gift had been intended there would have been no need for him to be involved, lacks any probative evidentiary foundation.

In closing submissions, counsel for the plaintiffs sought to put the argument for a resulting trust in broader terms, as follows:

From a comprehensive and overall perspective, the defendants [sic], under the influence of the son, has obtained the plaintiffs' valuable interest in Belmore Street, used it, given nothing in return and proposes to give nothing in return. The evidence, it is submitted, of what happened in 2003 of the intention of the parties in 2003, by reference to the wider context of the relationship between the parties and documentation and the meeting with Bouzanis, is that the plaintiffs wouldn't relinquish their interest in Belmore Street for nothing and that that, on a global view, on a proper view of this case, it is submitted, is not what in fact occurred.[305]

In my view, even when the argument is cast this way, it is affected by the same fundamental difficulty — that is, this transaction was one which the plaintiffs embarked upon at the invitation of their son, in a context where he routinely managed financial matters for them, and they trusted him to do so and relied on him to take care of them. The premise that the plaintiffs received nothing in return triggers, rather than resolves, the resulting trust inquiry, and no objective evidence has been put forward of any intention on the plaintiffs’ part to retain the beneficial ownership in their interest in the property following the transfer to the defendant.

[305]Transcript 05/10/17, at 476 (Mr Hogan).

Conclusion: the plaintiffs have failed to establish a resulting trust

In my view, the evidence of intention advanced by the plaintiffs falls short of establishing that they held the requisite intention at the relevant time. Given the plaintiff’s general lack of recollection of the events, the evidence given by Kathy Voukidis, that she did not think they intended to make a gift, is problematic. So is the plaintiffs’ assertion that their intention to part with the beneficial interest in the property was conditional upon receipt of market value. Such an intention is supported only by the impugned letter of 12 February 2003 and Mr Bouzanis’ recollection that a loan back arrangement was discussed (though he was not involved in the transfer itself). Peter Voukidis gave evidence demonstrating that he knew that ‘[w]e did a family trust at the time [in 2003]’ and that he and Kathy transferred their share in the property to that trust.[306] Otherwise, the overall picture that emerges is one of uncertainty as to what was intended, and by whom, at the time the property was transferred. In the absence of a presumption, the onus is on the plaintiffs to establish, on the balance of probabilities, that their interest was held on a resulting trust. For the reasons given above, I am not satisfied that they have discharged it. In my view, the plaintiffs have failed to demonstrate that the interest in the 60 Belmore Street property they transferred to C & O Voukidis Pty Ltd is held on a resulting trust.

Issue 6: If the Court is satisfied that the plaintiffs are entitled to equitable relief, should such relief be refused on the grounds of laches?

[306]See the cross-examination extract at paragraph 90 above.

In circumstances where the plaintiffs have not succeeded in making out any of their claims for equitable relief, it is not necessary for the Court to address this issue. However, as a laches defence was pleaded[307] and argued,[308] it is convenient to record the gist of the submissions made.
[307]See the amended defence dated 27 September 2017, at [20] and [22].
[308]The laches defence received little attention at trial and was mentioned only briefly in closing written submissions.

The defendant submitted that if, notwithstanding the arguments raised by way of defence, the plaintiffs nevertheless succeeded in making out a case for equitable relief, the Court should refuse to exercise its discretion to award them any equitable relief on the grounds of laches, given their inordinate and inexplicable delay in bringing this proceeding.

The defence of laches — applicable legal principles

Recently, in CSR Ltd v Amaca Pty Ltd,[309] the Court of Appeal had occasion to consider the defence of laches as it applies to an equitable claim. There, the trial judge had concluded that, for claims for equitable contribution brought within a six year limitation period,[310] CSR would also be entitled to rely on the equitable defence of laches, if there was an unreasonable delay in bringing the contribution claim once a cause of action had accrued, and the delay had given rise to prejudice in the form of changed circumstances.[311] The trial judge concluded that the defence of laches was made out in relation to the claims for equitable contribution in relation to two of the eight claimants, Mr Reid and Mr Preston.
[309][2016] VSCA 320 (‘CSR v Amaca’).
[310]Being six years from the date when James Hardie paid its contribution to the State Electricity Commission of Victoria under three ‘General Settlement Agreements’.
[311]CSR v Amaca [2016] VSCA 320, at [24]; Amaca Pty Ltd v CSR Ltd [2015] VSC 582, at [477].

On appeal, James Hardie’s cross-appeal raised the operation of the laches defence as an issue. Relevantly for present purposes, by ground 2 of the cross-appeal, James Hardie contended that, even if a laches defence were available, it should not have succeeded in respect of the claims relating to Mr Reid and Mr Preston, as CSR did not lead evidence of any prejudice to it arising from the delay in the institution of the proceedings for contribution.[312]
[312]CSR v Amaca [2016] VSCA 320, at [31] (Maxwell P, Beach and Kaye JJA). The Court noted (at [240]) that the issue at the heart of ground 2 of the cross-appeal was ‘whether a claim which is the subject of a limitation provision by analogy may nevertheless be defeated by the defence of laches before the statutory time period has run’, and there is no binding authority that decides that question.

When addressing ground 2 of the cross-appeal, the Court of Appeal summarised the substance of a defence of laches, as follows:[313]
[313]Ibid, at [241]–[246].

[241]It is first necessary to understand the nature of the doctrine of laches. As the judge correctly stated, for a defence of laches to be maintained the defendant must demonstrate, first, that there has been unreasonable delay on the part of the plaintiff in prosecuting its claim and, secondly, that as a consequence of that delay the position of the defendant (or, in some cases, a third party) has so altered that it would be unjust for the court to grant the equitable relief sought by the plaintiff.
[242]The classic statement of the principles relating to the defence of laches is contained in the advice of the Privy Council in Lindsay Petroleum Co v Hurd, where it is stated:
The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.[314]
[314](1874) LR 5 PC 221, 239–40 (emphasis added by the Court of Appeal).

[243]That statement of principle was adopted in the subsequent decision of the House of Lords in Erlanger v New Sombrero Phosphate Company, in which Lord Blackburn stated:
I think, from the nature of the inquiry, it must always be a question of more or less, depending on the diligence which might reasonably be required, and the degree of change, which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.[315]
[315](1878) 3 AC 1218, 1279.

[244]Those principles have been followed and applied for more than 140 years. In Fysh v Page, Dixon CJ, Webb and Kitto JJ stated:
When the Court is asked to rip up a transaction years after it has been completed the lapse of time itself is one of the elements bearing upon the equities that exist entitling the plaintiff to relief. If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed. If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds of relief.[316]
[316](1956) 96 CLR 233, 243.

[245]In similar terms, in Orr v Ford,[317] Deane J described the doctrine of laches as follows:
the phrase refers to circumstances where inaction or standing by (with knowledge) by a plaintiff over a substantial period of time assumes an aggravated character in that it will, if the plaintiff is granted the relief which he seeks, give rise to serious and unfair prejudice to the defendant or a third party. … The ultimate test effectively remains that enunciated by Lord Selborne LC … speaking for the Privy Council, in Lindsay Petroleum Co v Hurd, namely, whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable ‘to place him if the remedy were afterwards to be asserted’…

[246]Two related points should be noted. First, in order that the defence of laches be made out, it must be demonstrated that the unreasonable delay by the plaintiff has resulted in such prejudice to the defendant that, on balance, it would be inequitable to grant the relief sought by the plaintiff. Secondly, the defence of laches is essentially the product of the very principles upon which a court decides whether or not to grant equitable relief in a particular case. As was stated in Fysh, the question whether a plaintiff is defeated by delay ‘must itself be governed by the kind of considerations upon which the principles of equity proceed’.[318]

[317](1989) 167 CLR 316, 341 (citations omitted).

[318](1956) 96 CLR 233, 243.

Relevantly, for present purposes, it should also be noted that the defendant, as the party asserting the defence of laches, bears the burden of identifying the period of the delay and any prejudice it contends it sustained during that period.[319]
[319]Perpetual Ltd v Myer Pty Ltd [2018] VSC 2 at [138] (per Croft J), citing CSR v Amaca, at [268]–[269].

The delay asserted by the defendant

Turning to the present case, it will be recalled that the 60 Belmore Street property was sold by the National Australia Bank as security holder in March 2012, following which the whole of the fee simple in the property was transferred to a third party. The proceeds of sale remaining after the discharge of the secured creditor’s interest, being approximately $1.43 million, were placed in a trust account, pursuant to a court order. On 27 May 2014, C & O Voukidis Pty Ltd was placed in liquidation.

In essence, the defendant points to the fact that the plaintiffs took no steps to assert any claim in respect of their alleged interest in the 60 Belmore Street property or the Belmore Street proceeds until their solicitors wrote to the solicitors for the liquidator on 26 October 2016, following the issue of the notice calling for formal proofs of debt in the liquidation to be lodged.

In its amended defence,[320] the defendant pleaded laches and estoppel, and the associated relief sought, as follows:
[320]At [20] and [22].

Laches and Estoppel
20.It says further, and in the alternative, that if the Loan Agreement pleaded in the [Statement of Claim] was entered into by the Defendant (which is denied), and if it was breached by the Defendant by its insolvency or by its sale of the Property without the Plaintiffs’ written consent, the Plaintiffs are guilty of prolonged, inordinate and inexcusable delay in bringing this proceeding and accordingly have been guilty of laches.
PARTICULARS
The Plaintiffs did not:
(a)notify the Company that it was in breach of the alleged Loan Agreement at any point in time prior to the letter dated 26 October 2016 from Spinks Eagle lawyers to Colin Biggers Paisley;
(b)seek repayment of their alleged loan to the Company following the Company’s alleged defaults;
(c)take any steps to notify the Company or the Liquidator of their alleged equitable interest in the Property, prior to the letter dated 26 October 2016 from Spinks Eagle lawyers to Colin Biggers Paisley;
(d)seek to caveat their equitable interest in the property;
(e)seek, or assert any right to, any of the proceeds of sale of the Property, whether after the transfer of the Property on or around 27 March 2012 or at any time prior to the letter dated 26 October 2016 from Spinks Eagle lawyers to Colin Biggers Paisley.

Relief
. . .
22.Alternatively, the Plaintiffs are barred from any such declaratory relief by reason of the doctrine of laches.

In its outline of closing submissions, the defendant contended that ‘indolence’ on the part of the plaintiffs, as set out below, should operate as a bar to any relief:[321]

(a)The Plaintiffs did not protect their interest by caveat, despite apparently being advised to do so by Bouzanis.
(b)The Plaintiffs remained silent during and after the sale of the Property in March 2012. There is no evidence that they said anything to their son about repayment of their loan at that time. This is despite such sale being an alleged “default” under the agreement pleaded by the Plaintiffs.
(c)The Plaintiffs remained silent after the Company went into liquidation in 2014. (Again, despite such event being a “default” under the agreement as pleaded by the Plaintiffs.)
(d)The Plaintiffs had a solicitor who they had consulted at various times and a son who was the director of the Defendant at all relevant times.
(e)Christos Voukidis gave no explanation other than “neglect” for the failure to prepare the alleged mortgage or loan agreement.

[321]Defendant’s outline of closing submissions, at [28] (footnotes omitted).

The defendant submits that it has suffered substantial prejudice as a result of the plaintiffs’ delay in asserting and notifying their interest. In particular, the defendant says that the plaintiffs’ dilatory conduct has hindered the conduct of its defence because it has been unable to access contemporaneous documents, such as the original of the 12 February 2003 letter and documents and file notes on Mr Bouzanis’ files, that would have assisted it to properly test the plaintiffs’ case. Further, the memory of the remaining witnesses has been compromised by the passage of time, as was manifest from the cross-examination of the plaintiffs themselves. Neither party suggested that the absence of Mr Sclavenitis, who witnessed the signatures of Christos and Olga on the 12 February 2003 letter, was relevant to the laches defence or that it gave rise to any prejudice.

The plaintiffs contend that any delay, if proven, is insufficient to give rise to laches

In their closing submissions, the plaintiffs point out that none of the prejudice the defendant now alleges it has suffered is articulated in the defendant’s pleading, noting that if prejudice, disadvantage or change of circumstance had been pleaded, it ‘may have given rise to evidence in answer.’[322] Further, they observe that in the course of the trial of this proceeding, counsel for the defendant acknowledged that if the plaintiffs’ claim to an interest in the Belmore Street proceeds were successful, a priority contest may follow, given that there would then be competing claims.[323] Accordingly, so the plaintiffs submit, ‘even if it were pleaded, the question of change in circumstance or prejudice arising from any delay must be one applying to the Defendant itself’ and ‘[u]ltimately, [vis-à-vis] the Defendant and Belmore Street, the Defendant has divested its interest and a fund awaiting distribution remains.’[324]
[322]Plaintiffs’ outline of closing submissions, at [61].
[323]See Transcript 27/09/17, at 243 (Mr Collinson QC).
[324]Plaintiffs’ outline of closing submissions, at [62].

They also submit that the defendant has not proven its case in relation to laches, because its pleaded case of delay, ‘even if it did exist, is insufficient of its own to give rise to laches, even where that delay is substantial.’[325] In any event, the plaintiffs contend that the time taken by them to commence this proceeding does not meet a description of unreasonable or significant delay, in circumstances where:[326]

The Plaintiffs are elderly individuals who relied in many aspects of their affairs on their son, Christos Voukidis, who from 2003 until liquidation of the Defendant in 2014, was a directing mind of the Defendant. The liquidator of the Defendant, once appointed, only called for proofs of debt on 24 October 2016, and received a notification of the claim of the Plaintiffs on or around 26 October 2016. The liquidator of the Defendant only caused his solicitors to communicate once thereafter in writing with the Plaintiffs’ lawyer in relation to that claim notification. The liquidator sought and obtained directions not to defend or investigate any claim by (among others) the Plaintiffs. The Plaintiffs’ claim was then filed in accordance with an order of the Court made 23 May 2017.
[325]Ibid, at [61].
[326]Ibid, at [63] (footnotes omitted).

Observations on the laches defence

In the context of the present case, I am of the view that any laches defence to the claim brought by the plaintiffs against the company in liquidation in relation to the Belmore Street proceeds, must arise or be assessed as between the plaintiffs and the defendant. The defendant has asserted such a defence but it has not pleaded any relevant prejudice or change in circumstance that the company in liquidation has suffered as a result of the alleged delay, nor has it led any evidence capable of supporting such a claim.

Here, the plaintiffs have failed to make out the factual predicate to which the laches defence responds. But if they had, in my view, the time taken by the plaintiffs to commence this proceeding following, or in response to, the liquidator’s call for proofs of debt, does not meet a description of ‘unreasonable’ or ‘significant’ delay. It follows that, were it necessary for the Court to decide whether or not the laches defence is made out, I would dismiss it.

Summary of Conclusions

For the foregoing reasons, I would answer each of the issues raised as follows:

Issue 1:
Was the letter dated 12 February 2003:

(a) prepared for or on behalf of the plaintiffs; and
(b) signed by the plaintiffs and on behalf of the defendant,
in each case, on or about the date it bears?
Answer:
On the basis of the evidence adduced before the Court, the plaintiffs have not discharged their onus of satisfying the Court, on the balance of probabilities, that the letter dated 12 February 2003 was prepared for or on behalf of them, on or about that date. For the reasons set out above, I am not satisfied that the 12 February 2003 letter was prepared by Mr Bouzanis in or about February 2003. Nor am I satisfied that the letter was signed by the plaintiffs, or by Christos and Olga Voukidis on behalf of the defendant, on or about the date it bears.
Issue 2:
Did the plaintiffs and the defendant agree that the plaintiffs’ transfer of the 60 Belmore Street property would be made in accordance with the agreements alleged in paragraph 7 of the Statement of Claim?
Answer:
As the Court has found that the plaintiffs have failed to prove that the 12 February 2003 letter was prepared for or on behalf of them in or about February 2003, or that it was signed by the respective parties on or around that date, it follows that Issue 2 must be answered ‘No’.
Issue 3:
If yes to 2, is the defendant in breach of the terms of those agreements?

Answer:
Given the Court’s answer to Issue 2, Issue 3 does not arise.
Issue 4:
Are the plaintiffs entitled to be recognised as equitable mortgagees in respect of the Belmore Street Proceeds pursuant to an equitable mortgage?
Answer:
On the evidence adduced before the Court, I am not satisfied that the plaintiffs have established that the respective parties had a clear intention to create a second mortgage over the 60 Belmore Street property, and that such mortgage would secure repayment of the sum of $650,000, with interest. In the circumstances, the plaintiffs are not entitled to be recognised as equitable mortgagees in respect of the Belmore Street Proceeds.
Issue 5:
Alternatively, are the plaintiffs entitled to relief by way of an equitable lien or a resulting trust in respect of the Belmore Street Proceeds?
Answer:
(a)relief by way of an equitable lien
I am not satisfied that the plaintiffs have pleaded (or otherwise given proper notice to the defendant that they were alleging) the separate existence of an (unspecified) oral agreement or arrangement between the parties as manifesting ‘an intention that the defendant would pay and the plaintiffs would receive substantial value’, being market value, for the transfer of their interest in the 60 Belmore Street property. Nor have they pleaded or particularised ‘the conduct of the parties and Christos Voukidis’ and the consultation of Mr Bouzanis that they now seek to rely upon as giving rise to an equitable lien. But even if the pleading had addressed these matters, in my view, the evidence adduced at trial fell short of substantiating any such claim. Furthermore, having regard to all of the circumstances, no ‘unconscientiousness’ on the part of the defendant has been established that would be capable of justifying the declaration of such a lien.

(b) relief by way of a resulting trust
In February 2003, C & O Voukidis Pty Ltd was the trustee of the Voukidis Family No 2 Trust. Neither party contended that a presumption of advancement applies where property is transferred to a corporate trustee.
In light of the plaintiffs’ acknowledgement that s 44(1) of the Conveyancing Act 1919 (NSW) precludes a presumption of a resulting trust in the present case, the onus was on the plaintiffs to establish that a resulting trust arose on the totality of the evidence. For the reasons given above, I am not satisfied that the plaintiffs have discharged their onus. In my view, the plaintiffs have failed to demonstrate that, at the time when they transferred their interest in the 60 Belmore Street property to C & O Voukidis Pty Ltd, they had an intention to retain the beneficial ownership. Accordingly, I am not satisfied that the interest they transferred to C & O Voukidis Pty Ltd is held on a resulting trust.

Issue 6:
If the Court is satisfied that the plaintiffs are entitled to equitable relief, should such relief be refused on the grounds of laches?
Answer:
In circumstances where the plaintiffs have not succeeded in making out any of their claims for equitable relief, it is not necessary for the Court to address this issue. It is useful, however, to outline the approach the Court would have taken were it necessary to do so.
The defendant has asserted a laches defence but it has not pleaded any relevant prejudice or change in circumstances that the company in liquidation has suffered as a result of the alleged delay, nor has it led any evidence capable of supporting such a claim.
Here, the plaintiffs have failed to make out the factual predicate to which the laches defence responds. But if they had, in my view, the time taken by the plaintiffs to commence this proceeding in response to the liquidator’s call for proofs of debt, does not meet a description of ‘unreasonable’ or ‘significant’ delay. It follows that, were it necessary for the Court to decide whether or not the laches defence is made out, I would dismiss it.

I will hear from the parties as to the form of orders to be made to give effect to these reasons.

First Schedule Directions
(A) Folio Identifier	(B) Direction	(C) Name
Prop	Peter Voukidis, Kathy Voukidis & Christos Voukidis as joint tenants in ¾ share, Peter Voukidis & Kathy Voukidis as joint tenants in ⅛ share and Christos Voukidis in ⅛ share as tenants in common

Amount of Loan:	$650,000
Purpose:	Transfer of 60 Belmore Street, Burwood to C & O Voukidis Pty Ltd as trustee for Voukidis Family No 2 Trust.
Lender and Mortgagor:	Peter and Kathy Voukidis of 3 Wyatt Avenue, Burwood NSW 2134
Borrower and Mortgagee:	C & O Voukidis Pty Ltd as trustee for the Voukidis Family No 2 Trust.
Facility and term:	Interest only for a term to be confirmed but not longer than 15 years from the date of the transfer.
Security property:	60 Belmore Street, Burwood – Lot 1 DP 332361
Valuation:	Based on valuation by MVS Valuers dated 10 February, 2003.
Interest Rate:	7.5% per annum
Costs and Expenses:	All costs and expenses relating to this loan including stamp duty, legal fees and valuations are payable by the Borrower
Documentation:	All necessary documentation to secure the loan.
Special Conditions:	The documentation for the loan to be finalised after completion of the transfer and registration of NAB mortgage.

[2018] VSC 267

24 May 2018