YFTW and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 639

YFTW and Secretary, Department of Social Services (Social security second review) [2025] ARTA 639 (28 May 2025)
Applicant:YFTW
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/4297

Tribunal:Senior Member S Trotter
Place:Brisbane
Date:28 May 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that YFTW’s rate of carer payment be reassessed on the basis that the Coffs Harbour property was at all times held by YFTW on constructive trust for the benefit of her son

Statement made on 28 May 2025 at 11:34am
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
Social security – carer payment – rate – assessable assets – whether property held on trust – common intention – whether property held for beneficial interest of son - whether detrimental reliance by son – impact of receipt of rent assistance – terms of Will - gifting
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Cases
Department of Social Security v Agnew [2000] FCA 59
Dineen v Secretary, Department of Social Security (1988) 17 ALD 91
Kidner v Secretary, Department of Social Security [1993] FCA 587
Re Follone and Secretary, Department of Social Security (1987) 11 ALD 477
Secretary, Department of Social Services v Hulett [2025] FCA 23
Slamkova and Secretary, Department of Social Services [2017] AATA 137
Sternberg and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 787
Secondary Material
Nil
Statement of Reasons
Background

This application relates to the rate of carer payment paid to YFTW. YFTW is a long-term recipient of carer payment (since 2004) in relation to the care provided to her son (born 1981).[1]
[1] Unless otherwise indicated all references in these Reasons to YFTW’s son are a reference to her son born in 1981 as distinct from YFTW’s other son.
A person’s rate of carer payment is calculated including having regard to an income test and an assets test, with the test that applies being the one that gives the lower rate of payment. Immediately prior to 30 June 2023, YFTW’s rate of carer payment was being assessed on the basis of the income test with income of $113.94 per fortnight recorded for her. YFTW’s assessed assets at the time included her interest in real property at Coffs Harbour (the Coffs Harbour property), a property purchased by YFTW in January 2015 and in which her son resided. Centrelink’s records show that the value of the Coffs Harbour property was assessed by the Respondent as being $225,000 from 7 March 2015 to 29 June 2023.[2] It appears this was based upon the contract price upon purchase of the Coffs Harbour property in 2015[3] and that there had not previously been any reduction of the gross value of the assessed value on account of any outstanding associated mortgage.
[2] T-Documents, T28, pages 743 to 746.
[3] T-Documents, T6, page 95.
Centrelink’s records show that:
(a)on 11 July 2023,[4] a letter was sent to YFTW advising of regular carer payment from 24 July 2023 (for the period 7 July 2023 to 20 July 2023) to be paid at the rate of $488.75 per fortnight taking into account total assets of $493,576 (it seems that this total reflected the full value of the Coffs Harbour property of $440,000 advised by YFTW in a Real estate details form dated 30 June 2023 provided by YFTW to the Respondent,[5] without offset for an associated mortgage plus YFTW’s other assets[6]) and annual income of $113.94;[7] and
(b)on 13 July 2023,[8] YFTW contacted Centrelink in relation to the Coffs Harbour property re ‘property purchased for son 2015 property is in her name asset value is reducing her payment’.
[4] T-Documents T29, pages 833 to 835.
[5] T-Documents T5, pages 83 to 90.
[6] A subsequent valuation by Herron Todd White dated 1 November 2023 estimated the value of the Coffs Harbour property as $440.000.
[7] The Respondent’s records show that YFTW’s previous rate of payment immediately prior to 7 July 2023 had been $1,064 per fortnight – T-Documents, T28, page 712.
[8] T-documents, T24, page 680.
On 18 October 2023, YFTW is recorded as attending at a Centrelink office,[9] with the result that the mortgage amount outstanding, as also advised by YFTW in the Real estate details form dated 30 June 2023, was offset from the assessed value of the Coffs Harbour property resulting in a further changed rate of carer payment entitlement for YFTW. On 18 October 2023,[10] a letter was sent to YFTW advising of an arrears payment of $2,935.82 with regular carer payment from 30 October 2023 to be at the rate of $957.95 per fortnight taking into account total assets of $348,014 and annual income of $114.58.
[9] T-documents, T24, page 681.
[10] T-documents, T29, pages 841 to 843.
The Respondent’s records then show a further contact by YFTW with the Respondent on 8 February 2024[11]. YFTW is noted as stating that she disagrees with the decision to include the Coffs Harbour property as an (assessable) asset for her on the basis that she was holding the house/mortgage on trust for her son with her son having been gifted the stamp duty and deposit for the purchase of the Coffs Harbour property by her and with her son since making all the mortgage, rates and body corporate fee payments. This was treated as a request for a formal review of the Respondent’s 18 October 2023 decision as confirmed in a letter of 8 February 2024 from the Respondent to YFTW.[12]
[11] T-documents, T24, page 682.
[12] T-documents, T29, page 849.
On 16 April 2024, an authorised review officer on behalf of the Respondent, reassessed the matter determining that as the relevant mortgage was secured against both the Coffs Harbour property and YFTW’s own principal place of residence at Boambee East (the Boambee East property), the mortgage amount to be deducted from the assessable asset value of the Coffs Harbour property needed to be apportioned, that is shared between the Coffs Harbour and Boambee East properties. It was determined that the correct assessable value of the Coffs Harbour property was $371,744 after deducting the apportioned mortgage amount of $68,256 (rather than $145,820) resulting in YFTW’s assessable assets totalling $425,329. In reaching this conclusion, the authorised review officer also decided that it could not be found that the Coffs Harbour property was being held on trust for YFTW’s son as her son was considered a non-homeowner based upon him receiving rent assistance for rent paid to YFTW for the Coffs Harbour property.
On 23 May 2024, following application for first review of that decision, the Social Security and Child Support Division of the then Administrative Appeals Tribunal (the AAT) affirmed the decision of the authorised review officer. On 21 June 2024, YFTW lodged an application with the AAT seeking second review of the decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
YFTW, her representative and the Respondent’s representative (financial services professional) participated in a hearing before me on 17 March 2025, with YFTW giving sworn evidence. The Respondent requested and was allowed further time after the hearing, until 31 March 2025 to provide supplementary written submissions including, as requested by me, in order to address the recent decision of the Federal Court in Secretary, Department of Social Services v Hulett [2025] FCA 23 (Hulett). YFTW was then allowed until 14 April 2025 to provide submissions in response, if any.
In addition to YFTW’s oral evidence at hearing and oral submissions at hearing, the following documents were before me and marked as Exhibits (or for identification) as follows:
(a)Letter from YFTW’s representative, Mr Rodney Fox, dated 19 August 2024, marked A1;
(b)Letter from YFTW dated 31 May 2024, marked A2;
(c)Summary of expenses paid by YFTW’s son, marked A3;
(d)Various invoices in relation to Coffs Harbour property, marked A4;
(e)Applicant’s response and final written submissions dated 14 April 2025, marked A5;
(f)Documents provided by the Respondent pursuant to section 37 of the then Administrative Appeals Tribunal Act 1975 (the AAT Act), index and pages numbered 1 to 862, marked R1 (the T-Documents);
(g)Respondent’s updated Statement of Position dated 9 August 2023, marked R2;
(h)Respondent’s Statement of Issues, Facts and Contentions dated 31 October 2024, marked R3;
(i)Respondent’s further written submissions dated 31 March 2025, marked R4; and
(j)Seven pages of archive documents provided by the Respondent as an attachment to its 31 March 2025 submissions, marked R5.

ISSUES

The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act).
The rate of carer payment is calculated under section 1064 of the Act, which requires the application of both an income test and an assets test, applying the one that gives the lower rate of payment.
Subsection 11(1) of the Act defines an ‘asset’ as meaning property or money. Usually, the market value of an asset is utilised in assessing the asset’s value with section 1121 of the Act allowing the value to be reduced by the value of a charge or encumbrance on the asset.
Pursuant to paragraph 1118(1)(a) of the Act, a person’s principal place of residence is disregarded in the calculation of their assessable assets for the purposes of the Act. It is not in dispute that the Boambee East property is and has been at all relevant times YFTW’s principal place of residence and as such is disregarded in calculating her assessable assets.
It is further not in dispute that the Coffs Harbour property is solely registered in YFTW’s name, that is, YFTW is the legal owner of the Coffs Harbour property. The net value of the Coffs Harbour property would therefore usually be included in calculating YFTW’s assessable assets for the purposes of assessing her entitlement to carer payment. However, generally speaking, property is subject to both legal ownership and beneficial ownership. A person may have legal ownership of property but be obliged to exercise ownership rights in the property for the benefit of another person such that the asset can be disregarded as an asset of the person holding legal ownership of the property.[13] This long-standing common law concept is recognised in Topic 4.12.3.51 of the Guide which deals with constructive trusts.
[13] Kidner v Secretary, Department of Social Security [1993] FCA 587
It follows that the issues for me to determine are:
(a)is the Coffs Harbour property held on constructive trust by YFTW for her son? And, if not,
(b)what is the net value of the Coffs Harbour property to be taken into account in assessing YFTW’s entitlement to carer payment?

CONSIDERATION

Issue 1: Is the Coffs Harbour property held on trust by YFTW for her son?

As submitted by the Respondent at paragraph 45 of its SFIC, and as detailed at Topic 4.12.3.51 of the Guide, the following elements need to be demonstrated to establish the existence of a common intention constructive trust:
(a) there must have been a common intention between the legal owner of the property and the beneficiary, regarding the beneficiary's beneficial ownership of the property;
(b) this common intention is to be inferred as a fact from the words or conduct of the parties;
(c) the beneficiary must be able to show that they have acted to their detriment on the basis of the common intention as to the beneficial ownership of the property, and
(d) it must be a fraud on the beneficiary for the legal owner to assert that the beneficiary did not have the beneficial interest in the property.
YFTW’s position is that she purchased the Coffs Harbour property on trust for her son with her gifting him the monies for the deposit and stamp duty and with him since residing in the property and paying all costs associated with the property including the mortgage payments, rates, body corporate fees and maintenance costs.
The Respondent’s position is that no constructive trust exists including because:
(a)the Coffs Harbour property is registered solely in YFTW’s name with the associated mortgage also solely in her name;
(b)a rent certificate signed by YFTW and her son, provided to the Respondent on 19 July 2023, is persuasive evidence confirming YFTW’s son is paying private rent and receiving rent assistance;
(c)weekly payments made by YFTW’s son said to be mortgage payments are paid into an account entitled ‘rental account’; and
(d)YFTW’s Will does not discuss the alleged arrangement in place in relation to the Coffs Harbour property.
Relevant statements/ statutory declarations of YFTW in evidence before the Tribunal included as follows:
(a)A statutory declaration dated 8 December 2023[14] of YFTW (annexing relevant documents) includes as follows:
[14] T-documents, T19, pages 539 to 541
1.    I am the sole registered proprietor named on the Title for the property known as [the Coffs Harbour property]…
2.     Contracts were exchanged on 12 December 2024 and settlement took place on 16 January 2025…
I secured a loan with the ANZ Bank to purchase the property in the amount of $195,000. The additional funds in relation to the purchase of the property were provided by me personally in the amount of $38,677.19, which included a 10% deposit in the sum of $22,500.00, Stamp Duty in the amount of $6,365.00 and an amount of $9,812.00.
…
7.     My son, [name intentionally deleted by Tribunal], has Autism and has been in receipt of a Disability Pension since 1997…
8.     I have always held (sic) for the property to be held on trust for my son, for his sole use and absolute benefit, to live in independently, as his permanent residence.
9.     All the loan mortgage repayments have been paid by my son. [My son]] transfers to me from his [bank account] to my [bank account] from the (sic) which account the loan repayments are debited by the bank for the period 15 January 2015 to date.
10. My [bank account’ refers to my son’s transfers this account as rental account. I state that these transfers are in payment of the mortgage repayments…
11. My son pays all the utilities, strata levies and rates for the property from his own funds. The direct debits from my son’s account in payment of the mortgage repayments are marked in “green”, the rates are marked in “pink”, payments to Red Energy are marked in “yellow” and Strata Levies are marked in “blue” as marked on annexure letter “I”.
12. Although the rates are in my name, my son pays the land and water rates. Upon sighting a copy of my Will, the Coffs Harbour City Council has applied the Pensioner rebate to the rates…
13. As well a (sic) being in receipt of the Disability Pension, my son gained part-time employment with New Horizons in 2017 and is now in a position to refinance the balance of the loan into his own name.
14. My son in now in a financial position to have my loan refinanced in his own name with the Great Southern Bank and I now wish for the property to be transferred to my son’s (sic), to his sole name.
15. I consider the additional funds that I contributed toward the purchase in the amount of $38,677.19 to be a gift to my son.
(b)A letter dated 31 May 2024 (Exhibit A2) including as follows:
The first is the fact that I received misleading information from the beginning of the arrangement when attempting to provide a home for my son who carries a significant disability. The bank dreamt up the name of the account my son was using to pay the mortgage. Payments from my son to the mortgage flowed through an account called the Rent Account. The Advice was inappropriate.
Secondly, Centrelink have not considered what the credible purpose of this arrangement is; providing my son the opportunity to purchase a home for him to live it and call his own. Being a disabled gentleman, he didn’t have an equal opportunity to finance a home without assistance from me.
Thirdly, last year I was coerced into signing a CentreLink document declaring that I was in receipt of rent and was a property investor. The pressure was intense, and I was not given the opportunity to seek professional advice. Related to this issue, CentreLink insisted that my son was to receive rental assistance. This advice and enforced action was inappropriate and insensitive towards a young man that needs assistance when understanding financial matters.
And finally with reference to the preparation of my Will, my solicitor ignored the arrangement and included the home in the said Will so it would be passed onto to my son. While this is evidence that his home was singled out as his in the event of my death, on review I think the Will could have been drafted better and should have recognised the arrangement that was in place.
The evidence provided in the past, being the loan payment my son made, was transferred to my personal account, and then forwarded directly to the bank loan (with only $1 variation). This has been in place for ten years.
…
I am suffering the financial consequences and deprivation of appropriate advice from various professionals and government departments which has led to unconscionable enforcement actions against me and my son.
At hearing, YFTW’s representative submitted on her behalf that there was always a common intention that YFTW held the Coffs Harbour property on trust for her son. He submitted that YFTW and her son sought assistance from various professionals, including the bank and solicitors, to reflect this clear intention and because they were assisted by various professionals, they were of the understanding that the arrangements were totally acceptable. He emphasised that YFTW’s son had paid all mortgage payments for the Coffs Harbour property since its purchase, all other expenses in the nature of expenses paid by a homeowner such as rates, body corporate fees and maintenance costs.
YFTW’s evidence at hearing included that prior to purchase of the Coffs Harbour property her son wanted to move out on his own, having always lived with her. He did move out into his own flat however it wasn’t a very desirable area – the people who lived around him were on drugs and there were security issues – and he ended up moving back home with her. Her son then started looking around for another place – he would ride around on his push bike looking at places. He found the Coffs Harbour place and things just escalated from there. There had not really been any previous discussion about how this sort of purchase might be facilitated but she wanted to give him a start and assist him in going forward and being as independent as possible. It was always the intention that she would assist her son in purchasing the property by gifting him the monies for the deposit and the stamp duty but the property was always to be her son’s property, with him paying the mortgage. The only reason the property and mortgage were in her name was because her son’s circumstances at the time were not such that he would have been able to have obtained a mortgage for the purchase in his own name – her son’s income was not enough at that stage. It was always clearly understood between her and her son that this was the basis of the arrangement and that once purchased, all expenses would be expenses to be paid by her son. YFTW said that it was always understood, and they had worked out, that after payment of the deposit and stamp duty, her son would be able to afford the mortgage payments and expenses – it was just that he would not have been a successful applicant for a mortgage in his own name.

In response to a query as to why the bank account utilised for her son to transfer monies to her to then pay the mortgage would be entitled ‘rental account’, YFTW said that it was a new account that was set up and she cannot understand how it was given that name. She said the name would have been nominated by the bank because they (neither she nor her son) would not have described it as rent. She said that she just cannot explain how that would have happened. In this regard, YFTW’s representative submitted that having just set up a loan for YFTW to purchase the property, the bank likely made an assumption in relation to the transfer and the use of the account without the name of the account being based upon anything YFTW or her son told the bank.
YFTW’s further evidence was that although some invoices for repairs or maintenance on the Coffs Harbour property may be in her name, her son has always paid for, or reimbursed her for, all expenses of that nature, as they had always intended because they had always considered the property to be his, notwithstanding her status as legal owner.
As regards her Will, YFTW acknowledged that her Will dated 11 March 2021[15] provides for the Coffs Harbour property to pass to her son upon her death but does not suggest that it is currently being held in trust for him. YFTW said that she thought that was sufficient to reflect their arrangement and was not advised otherwise by her solicitor who clearly knew the basis of the arrangement. YFTW said that she has another son but they haven’t spoken for 10 years and she wanted to ensure that everything was legal for her son in relation to the Coffs Harbour property, with the residue of the estate (not including the Coffs Harbour property) then left to both of her sons.
[15] T-documents, T20, pages 632 to 636
Centrelink’s records show that a rent certificate signed by both YFTW and her son[16] was submitted to the Respondent in July 2023 identifying YFTW as the landlord to whom her son paid $517.26 rent per fortnight.
[16] T-documents T23, pages 649 to 650
At hearing YFTW said that her son works in a workshop for people with disabilities and his income, and therefore rate of disability support pension, varies from time to time. When at a Centrelink office in 2023, she and her son discussed how difficult it was for her son paying the mortgage with all the changes to his pension. They were talking to a young female Centrelink officer and she then went over to talk to another lady who, in her view, bullied them. She said that the Coffs Harbour property was her asset not her son’s and they were prompted to sign the rent certificate papers. It felt like they had no say in the matter. Subsequently, nearly 2 years later, she went in to a Centrelink office to have the rent assistance for her son stopped.
Notably, the Respondent’s records contain a record of YFTW contacting the Coffs Harbour office of Centrelink on 29 June 2023 where it is noted as follows:[17]
after discussion with FIS, cus is to remain as NHO as he is not on the mortgage nor the titles, he is entitled to RA. have updated AC with current rent details, Su523 completed.
[17] T-documents, T25, page 695
The Respondent’s representative suggested to YFTW at hearing that having signed the rent certificate as landlord, which verified the rent being paid by her son, she would have been aware of the effect the rent certificate would have on her son’s payments, that is, his payments would increase because of receipt of rent assistance. YFTW confirmed that she realised this and that her son did receive rent assistance however she later arranged for that to stop because she knew that it would have to be paid back as a debt. YFTW said that she asked for the rent assistance to be stopped a number of times before it actually happened.
YFTW’s representative submitted at hearing on behalf of YFTW that YFTW is not a professional person and she has found the whole experience in relation to the Coffs Harbour property intimidating. She has at all times wanted to assist her son in gaining independence and some assurance in relation to his future. He further submitted that the local council recognises the Coffs Harbour property as YFTW’s son’s property, applying a pensioner rebate for the property as a principal place of residence, not something that would be allowed if it was thought the property was YFTW’s property as she already has another principal place of residence.
Respondent’s submissions
The Respondent in its 30 October 2024 SFIC referred to various relevant cases authorities and addressed each of the elements that need to be demonstrated to establish the existence of a common intention constructive trust. The Respondent referred to the case of Slamkova and Secretary, Department of Social Services [2017] AATA 137 (Slamkova) as being an example of previous Tribunal decisions about what needs to be kept in mind in considering the question of whether a trust exists and in particular noted that Senior Member Toohey in Slamkova observed at [61] that:
…there must be something of real substance to support a claim that a property of which a person is the registered own of 100 per cent, is in fact held on trust for another.
Reference was also made by the Respondent to the case of Sternberg and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 787 (Sternberg), including that:
The critical matter to decide is whether those expressions or expectations indicate the imposition of an enforceable obligation, or whether they are confined to mere expectation or moral obligation …
with the Respondent submitting that consideration was required of whether a constructive trust existed such that there was an obligation, in effect enforceable at law, that would allow YFTW’s son full and unrestricted access and dealings, including sale, of the Coffs Harbour property, which it was submitted was an obligation that did not exist.
As regards the elements of a constructive trust, the Respondent submitted as follows:
Common intention
It was submitted that the establishment of a common intention should be approached cautiously in YFTW’s circumstances in particular having regard to the principles that:
i.where the circumstances of the gift occur in the context of family relationship and appear to rely on mere expectations of moral or familial obligation and generosity, particular care is exercised before accepting that those expectations give rise to enforceable obligations in relation to the property: Re Follone and Secretary, Department of Social Security (1987) 11 ALD 477 (Follone) at 481; and
ii.no trust will arise from equivocal expressions of intended familial generosity in the absence of explicitly conduct indicative of actual obligation, and even an avowed intention to confer a benefit on another person in relation to the property is not sufficient to give rise to a present trust: Dineen v Secretary, Department of Social Security (1988) 17 ALD 91.
It was noted by the Respondent that it is not strictly necessary to establish a common intention for a constructive trust to arise[18] but in any event it was submitted that the circumstances outlined by YFTW should not be accepted as sufficient to establish that there was a common intention at law in relation to ownership of the Coffs Harbour property.
[18] Department of Social Security v Agnew [2000] FCA 59 (Agnew) citing Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 613-614
In post hearing submissions, the Respondent, noting the recent decision of Hulett, submitted that unlike in Hulett, YFTW and her son had engaged in unequivocal conduct indicating a clear intention to reject beneficial ownership including not taking steps to have YFTW’s son on the title of the Coffs Harbour property, establishing a ‘rental account’ associated with the property, YFTW’s Will referencing the property as ‘my property’ and not referencing any beneficial ownership of the Coffs Harbour property, the Will also directing a Fund (including the Coffs Harbour property) to be created if YFTW’s son survived her to hold on trust for her son’s life and the claiming of rent assistance. As regards rent assistance, the post hearings submissions attached records from the Respondent showing that YFTW’s son’s address had been updated to the Coffs Harbour address form 9 February 2015 with rent of $290 per week verified by way of rent certificate from 16 February 2015.
Whether the beneficiary has acted to their detriment on the basis of the common intention
The Respondent submitted the question of most significance is whether YFTW’s son has acted to his detriment on the basis of common intention as the beneficial ownership of the Coffs Harbour property and whether it would be fraud upon him for YFTW to assert that he did not have a beneficial interest in the property. Reference was made to the following comments in Agnew where detriment was described as follows:
…one should not look for an act that can be seen to be to the claimant’s detriment when done, but for an act done by the claimant in reliance on the conduct of the legal owner in the circumstances where detriment would be suffered if the owner were permitted to depart from the assumption that induced the reliance. As Dixon J said in Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at 674:
it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it.
The Respondent submitted that the only possible ‘detriments’ that may have been occasioned to YFTW’s son would be the loss of the strata levies of approximately $91.35 per fortnight and loss of monies paid in respect of installation of a security door and other nominal amounts in respect of maintenance. It was further noted that the fortnightly amount paid by YFTW’s son towards mortgage/rent was approximately half the current market rental rate for similar properties in Coffs Harbour.
The Respondent submitted that Derrington J in Hulett rejected the idea that detriment needed to be substantial but did not reject the position that some non-minimal prejudice is required citing Her Honour at paragraph [58] as follows:
In my view, however, it is sufficient in a case which gives rise to a common intention constructive trust for a claimant to prove that he or she has altered his or her position on the basis of an assumed state of affairs that is then sought to be altered in order to establish the necessary detriment: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14 at [87]. That is because it is a trust which has arisen by operation of law to enforce the parties’ otherwise unenforceable common intentions, rather than being a mere equity, viz, an equitable claim against the conscience of the true owner.
The Respondent summarised the detriment that Derrington J found had occurred in Hulett was, in relation to three daughters, making their home available to their father (for care) and additionally in relation to one daughter, was taking in her father to her home and thereby acting in a ‘life-changing’ way. The Respondent submitted, however, that there was insufficient evidence of detriment suffered to warrant establishment of a constructive trust in YFTW’s case.
The Respondent submitted that unlike as was found in Hulett, YFTW’s son had not altered his position on the basis of the contended constructive trust because the evidence was that he would have moved out of YFTW’s home and into a rental property, in order to build independence, in any event. Further it was submitted that he had paid less than market rent even taking into account strata levies, council rates and maintenance costs paid.
Fraud on the beneficiary
The Respondent submitted that no unconscionable act or fraud on YFTW’s son is alleged, nor would such an unconscionable act or fraud occur if YFTW decides not to honour the contended agreement with her son.
It was submitted overall that YFTW’s conduct in relation to the establishment of the mortgage accounts and the structure of the mortgage payments, compounded by the rent certificate provided to the Respondent, suggest that YFTW’s son is paying rent to her and that no constructive trust exists.
Applicant’s submissions
In closing oral submissions on behalf of YFTW, it was submitted that it was and had always been YFTW’s intention to gift monies to her son (the stamp duty and deposit) to assist him in purchasing a property which he was otherwise not able to purchase himself, by getting a loan based upon his own circumstances. Further it was submitted that YFTW’s son had acted to his detriment in making payments for the mortgage, rates, body corporate and maintenance and that he would not have made those payments other than because of the intention that the property was his property. They are not expenses that a tenant, as opposed to a homeowner, would normally pay.
Conclusion
I have taken into account all of the evidence in considering whether a common intention exists between YFTW as the legal owner of the Coffs Harbour property and her son that she holds the property on a constructive trust for her son, the beneficial owner of the property; some of the evidence suggests there is a constructive trust whereas other evidence is contrary to that position.
The most significant evidence contrary to a constructive trust existing is the establishment of a bank account entitled ‘rental account’ and that YFTW’s son has been claiming and receiving rent assistance for the payments he makes to YFTW each fortnight, which it is contended are mortgage payments.
As against this evidence which is contrary to a constructive trust existing, I accept YFTW’s evidence that she at all times intended for the property to be her son’s property and that the loan and property title was only in her name because YFTW’s circumstances at the time meant that he could not have obtained finance for the property. I am mindful that particular care is required to be exercised before accepting that gifts in the context of moral or familial obligations and generosity, be accepted as giving rise to enforceable obligations as was stated in Follone, as cited by Senior Member Taylor in Sternberg.
YFTW recognised that rent assistance should not have been paid to her son in the circumstances contended. At hearing, her evidence was that the provision of a rent certificate in 2021 was in circumstances where she felt ‘bullied’ and that she was given no choice. However, it is of further concern that the Respondent’s records show that a rent certificate was provided as far back as 16 February 2015. Notably, however, those records which were provided with the Respondent’s 31 March 2025 post-hearing submissions and have been marked Exhibit R5 include the following records of contact by YFTW on her son’s behalf with Centrelink (unedited):
31 January 2018
…
Cus attended the to discuss about accommodation details as cus has been receiving RA for the promises he pay mortgage to. However I was unable to update acs because cus is not sure of the date he bought the property. Cus been advised to bring in settlement document in order to update acs as home owner.
2 February 2018
…
Mother attended SC with recipient. She was concerned as says he owns the property. However the Settlement Statement etc are all in her name and it is her intention to pass the property to the recipient when she passes away, however this is not quite how the will was written. She has provided bank statement for Rental Account, into which recipient deposits $490pf for costs associated with the property. The bank account is in her name. have advised her that it reasonable to accept this money would be classed as rent in this arrangement.
In addition to showing the receipt of rent assistance by YFTW’s son, the archive records (Exhibit R5) clearly show that both YFTW and her son have been raising with Centrelink for several years that the Coffs Harbour property is YFTW’s property for which he is paying mortgage payments.
The archive records don’t show what conversations or the like may have transpired when the first rent certificate was lodged around 3 February 2015. However, in the context of all of the other evidence, I accept that notwithstanding signing a rent certificate as ‘landlord’ and stating that rent was being paid, YFTW was at all times acting in accordance with what she understood she should be doing in the circumstances. The further context and background that I recognise to these circumstances is that no doubt YFTW was dealing with considerable other matters in relation to both her own circumstances and those of her severely disabled son, not just arrangements and paperwork in relation to Centrelink, and relied upon advice from others as necessary.
Looking at the evidence overall, I am satisfied that YFTW, rather than intentionally claiming a situation that did not exist (that her son paid rent) was to the best of her ability complying with the advice that she was receiving at the time, whether it was from the bank, solicitors or indeed Centrelink officers. In this regard I noted the words of the Centrelink officer on 2 February 2018, it seems being appraised of all of the circumstances, that ‘it (sic) reasonable to accept this money would be classed as rent in this arrangement’. Whatever other matters may have transpired, such as a bank account named ‘rental payments’ (however that name was struck) does not detract from what I am satisfied was always the common intention of YFTW and her son that YFTW held the Coffs Harbour property on a constructive trust for her son. All of the evidence taken together, including the archive records of Centrelink and the interactions of both YFTW and her son as shown in those records, support that conclusion.
I further observe that, as regards YFTW’s Will, I do not consider, as submitted by the Respondent, that the reference to the Coffs Harbour property as ‘my property’ in YFTW’s Will, without explanation of the contended beneficial ownership of the property by YFTW’s son, negates there being a common intention and constructive trust. The Will must be looked at in its entirety in consideration of its relevance to the issue. The Will shows that YFTW gives the residue of her estate to be shared 50/50 between her two sons. The residue of the estate is that remaining after disposition of or compliance with the other terms of YFTW’s Will. Those other terms include setting aside a ‘Fund’ from the estate consisting of the Coffs harbour property, the proceeds of the disposal of all or part of any property in the Fund, property purchased using money in the fund, property added to the Fund and a sum sufficient to cover debts charged on or owing with respect to property in the Fund (with any shortfall to be taken from the residue of the estate). The Will further documents that YFTW’s son must pay the premiums on any insurance taken out by the executors of property in the Fund, the rates, taxes and other outgoings in respect of property in the Fund and keep the property in the Fund in reasonable repair, and that her son may be paid all or part of any income and capital from property in the Fund. The Will has other related provisions but what is very clear is that YFTW has treated the Coffs Harbour differently in her Will than any of her other property with provisions consistent with her son continuing to pay the expenses of that property. Whilst not necessarily best reflecting the arrangements contended by YFTW, the Will is also not inconsistent with the common intention of a constructive trust as contended by YFTW.

As regards whether YFTW’s son acted to his detriment on the basis of this common intention, as noted by Derrington J in Hulett:
To establish detrimental reliance ‘it is ordinarily necessary for the promise to show not merely that the promise was one factor taken into account in motivating the promisee’s action or omission but that the promisee would not have acted or omitted to act in the absence of the promise’: Kramer v Stone [2024] HCA 48 at [39] per Gageler CJ, Gordon, Edelman and Beech-Jones JJ.
The Respondent submits that YFTW’s son has not acted to his detriment including because the evidence is that YFTW would likely in any event have moved from YFTW’s home to rental premises towards the common goal of YFTW’s son working towards his own independence, and that the market rental he would then have paid would be more than the combined mortgage payments and other expenses he is/has been paying for the Coffs Harbour property.
Derrington J in Hulett explored previous considerations by the Courts as to what constitutes detriment and concluded that:
It is sufficient in a case which gives rise to a common intention constructive trust for a claimant to prove that he or she has altered his or her position on the basis of an assumed state of affairs that is then sought to be altered in order to establish the necessary detriment: Australian Financial Services at [87].
There is no question that YFTW’s son has altered his position based on the assumed state of affairs. I accept YFTW’s evidence at hearing that her son had previously been paying nothing by way of board or the like when he lived with her prior to the purchase of the Coffs Harbour property, at most contributing to the cost of food at times. He then commenced paying mortgage payments (although deposited into an account entitled ‘rental account’, notably the payments transferred, except on one occasion where there was a minimal difference, exactly mirrored the required mortgage payments), rates, body corporate fees and maintenance expenses for the property. I do not accept that comparing the total of these expenses with the rental market that YFTW’s son might have paid or might pay if he had otherwise moved or does move into rental premises, is the correct measure of whether he has acted to his detriment. Rather, consistent with Hulett, I conclude that YFTW’s son in altering in his position (compared to his previous position) and in paying for the expenses of the Coffs Harbour property has acted to his detriment on the basis of the contended common intention between YFTW and him as to the ownership of the property.
It is not alleged that there has been any unconscionable act or fraud on YFTW’s part as regards the ownership of the Coffs Harbour property and her son. To the contrary, YFTW is obviously doing everything she is able to, within the bounds of various advice she has been and is receiving, to ensure that the property is her son’s. Given that I have found that there was always a common intention that YFTW held the Coffs Harbour property on a constructive trust for her son and that her son acted to his detriment based upon that intention, I am satisfied that if YFTW did seek to not honour that agreement, it would constitute a fraud upon her son.
Having concluded that all elements for a constructive trust exist, I find that YFTW at all times held the Coffs Harbour property on constructive trust for the benefit of her son such that the property is not to be regarded as an asset of YFTW for the purposes of assessing her entitlement to carer payment, or other social security benefits as may be applicable, at all relevant times.
It follows that the decision under review will be set aside and the matter remitted to the Respondent with an Order to this effect. As discussed at hearing, and as referred to in the Respondent’s post-hearing submissions, other considerations will arise based upon this decision, including the application of the disposal of assets (gifting) framework in Division 2 of Part 3.12 of the Act to YFTW’s initial gift of the stamp duty and deposit monies to her son when the Coffs Harbour property was purchased and the issue of overpaid rent assistance to YFTW’s son. YFTW indicated at hearing that the consequential impact of a decision in her favour in that regard was understood.
Further, I observe that as a necessary consequence of my decision, it is likely that, even after taking in to account the gifting provisions, YFTW will be entitled to some arrears of carer payment. As regards from when those arrears might be payable, I note that it appears that Centrelink first took into account the value of the Coffs Harbour at such a level as to impact YFTW’s rate of carer payment from 7 July 2023 and YFTW promptly contacted Centrelink in relation to that decision on 13 July 2023 (see paragraph 3 of these Reasons), a contact that clearly relates to a query in relation to her rate of payment. It therefore appears there is no limitation on the date from which YFTW may be paid arrears, subject to recalculation of her entitlement based upon my decision and the application of the gifting provisions.

Issue 2: What is the net value of the Coffs Harbour property to be taken into account in assessing YFTW’s entitlement to carer payment?

As I have determined that the Coffs Harbour property is held on constructive trust by YFTW for her son, it is not necessary to address this issue.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that YFTW’s rate of carer payment be reassessed on the basis that the Coffs Harbour property was at all times held by YFTW on constructive trust for the benefit of her son.

Date of hearing: 17 March 2025

Date of final written submissions: 14 April 2025

Representative for the Applicant: Mr R Fox

Solicitor for the Respondent: Mr L Van Mai

Date of hearing:	17 March 2025
Date of final written submissions:	14 April 2025
Representative for the Applicant:	Mr R Fox
Solicitor for the Respondent:	Mr L Van Mai