FEDERAL COURT OF AUSTRALIA

Silvia (Trustee) v Williams, in the matter of Williams (Bankrupt) [2018] FCA 189

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 30 November 2015 be dismissed.

2.    The applicant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    Mr Patrick Williams and Ms Georgia Williams are a married couple. To avoid confusion, they will be referred to in these reasons by their given names. Georgia is a bankrupt. Mr Brian Silvia, the applicant in this proceeding, is Georgia’s Trustee in bankruptcy. Georgia’s bankruptcy was the result of adverse legal action which related to her renovation of a home jointly owned by her and Patrick in Blake Street, Dover Heights (the Blake Street property). Both Georgia and Patrick were successfully sued by the purchasers of the Blake Street property, though the judgment against Patrick was overturned on appeal.

2    In this proceeding, Mr Silvia, in his capacity as Trustee of Georgia’s bankrupt estate, sought declaratory and other relief, the effect of which would be to enable him to recover certain property from Patrick for the benefit of Georgia’s estate. In substance, the Trustee advanced three claims against Patrick.

3    First, he claimed that three transfers of money totalling $300,000 from a bank account in Georgia’s name to a bank account in Patrick’s name were transfers of property in respect of which Patrick, as transferee, gave no consideration. The transfers were accordingly void against him under s 120 of the Bankruptcy Act 1966 (Cth). The Trustee sought an order that Patrick pay those amounts to him. The Trustee initially also claimed that the transfers were void under s 121 of the Bankruptcy Act because they were made for the purpose of defeating Georgia’s creditors, however he subsequently abandoned that claim.

4    Second, the Trustee contended that the proceeds of sale of the Blake Street property, which were paid into a bank account in Patrick’s name, were held on trust for Georgia. He claimed that Georgia’s beneficial interest in half of the proceeds of sale vested in him upon Georgia’s bankruptcy, and sought an order that Patrick pay him an amount representing that half share, being $781,381.75.

5    Third, the Trustee contended that a property in Military Road, Dover Heights (the Military Road property), that was purchased in Patrick’s name alone, was held on trust for Georgia as to a half share. He claimed that Georgia’s beneficial interest in the Military Road property vested in him upon her bankruptcy. He sought various orders which would enable him to realise that property for the benefit of the estate.

Facts

6    Most of the relevant facts were not in dispute. The areas of controversy were fairly narrow in compass.

7    Patrick and Georgia met in early 1999 and began living together in June 2000.

8    Patrick had a very demanding job which required him to work long hours and frequently travel interstate. In 2001, he asked Georgia to manage all of his financial affairs. Georgia agreed. Patrick accordingly gave Georgia his banking details so she could make payments and transfers into and out of his bank accounts. He had a number of bank accounts. So did Georgia.

9    Patrick and Georgia were married on 14 December 2003.

10    In December 2003, Patrick and Georgia purchased the Blake Street property as joint tenants for $1.65 million. They commenced living in that property from about 2005. Their daughter was born in November 2006. They vacated the property in about November 2010 when, pursuant to an owner-builder permit in her name, Georgia began substantial renovations. Those renovations, which continued up to about November 2011, resulted in an increase in the value of the Blake Street property.

11    On 24 January 2012, Patrick and Georgia sold the Blake Street property to Bruno and Sia Pisano for $3.35 million. After the payment of sales agent’s commission, adjustments under the contract of sale for water and council rates, conveyancing costs and costs relating to the discharge of the registered mortgage on title, the net amount due to be paid to Patrick and Georgia as vendors of the Blake Street property was $1,562,763.58. On 24 January 2012, a cheque for that amount was deposited in a St George Bank account in Patrick’s name alone (account P800).

12    In the period 25 to 31 January 2012, a number of transfers or payments were made from account P800. Patrick’s unchallenged evidence was that each of those payments was arranged or made by Georgia without his knowledge at the time. It should also be noted that there was evidence that Patrick considered account P800 to be his and Georgia’s “main ‘working account’”.

13    On 25 January 2012, four payments totalling $10,365.89 were automatically deducted from account P800 and credited to four lines of credit in Patrick’s name (accounts P605, P122, P483 and P339).

14    On 27 January 2012, $10,000 was transferred from account P800 to a bank account in Georgia’s name (account G550).

15    On 30 January 2012, the following transfers were made:

(a)    $125,000 was transferred from account P800 to a line of credit in Georgia’s name (account G231);

(b)    $575,000 was transferred from account P800 to account P339.

(c)    $21,000 was transferred from account P800 to account G550.

16    On 31 January 2012, $350,000 was transferred from account P800 to an account in the name of Mr Tony and Mrs Penelope Dandris. Mr and Mrs Dandris were Georgia’s parents. Patrick’s unchallenged evidence was that this payment was made to repay a loan that Mr Dandris had made to him and Georgia on 30 June 2010 for the renovation of the Blake Street property.

17    Patrick’s evidence was that various other small payments were made from account P800 to settle accounts owed to tradesmen who had done work in relation to the Blake Street property and to pay land rates, strata levies and credit card accounts in his and Georgia’s names. His evidence was that he did not cause those payments to be made. Rather, they were made by Georgia. In late January or early February 2012, Georgia told him that she had “paid back all the loans out of the $1.5 [million], including dad’s loan”.

18    On 31 January 2012, $111,047, representing the balance of the deposit paid by Mr and Mrs Pisano for the purchase of the Blake Street property, was transferred by the selling agent into account G550. $103,521 of that amount was then transferred to a different account in Georgia’s name (account G291).

19    Between 25 January 2012 and 9 June 2012, Mr and Mrs Pisano complained to Georgia about defects they found in the renovations done to the Blake Street property. Georgia attended the Blake Street property for the purposes of inspecting and attempting to rectify defects identified by Mr and Mrs Pisano.

20    On 4 May 2012, Patrick signed a contract to purchase the Military Road property for $2.09 million. On that day, he signed a cheque for $209,000, drawn on his account P800 and made payable to the solicitors acting for the vendor of the Military Road property, for the purpose of paying the deposit for the purchase. That cheque cleared account P800 on 8 May 2012. On 9 May 2012, $209,000 was transferred from account G291 to account P800, the bank account upon which Patrick had drawn the $209,000 cheque. Patrick’s evidence was that this transfer was made to enable him to pay the deposit.

21    The purchase of the Military Road property was settled in July 2012. Patrick paid about $500,000 from his own money towards the purchase of the Military Road property. The balance was paid by Patrick with the assistance of a loan made to him by the St George Bank.

22    Patrick, Georgia and their daughter have resided in the Military Road property since it was purchased by Patrick in July 2012.

23    On 11 September 2012, Mr and Mrs Pisano commenced civil proceedings against Georgia to claim damages for defects in the renovations of the Blake Street property. The proceedings were commenced in the District Court of New South Wales at Sydney and were then transferred to the Equity Division of the Supreme Court of New South Wales.

24    On 14 November 2013, Hammerschlag J made a freezing order in the proceedings against Georgia. At some stage, Patrick was joined as a defendant to the proceedings commenced by Mr and Mrs Pisano.

25    On 12 June 2014, $300,000 was transferred from Mr and Mrs Dandris’ bank account to account G550. There is no dispute that this transfer represented a loan made by Mr and Mrs Dandris, though there is a dispute about whether it was a loan to Georgia alone, or to both Georgia and Patrick. The evidence concerning that issue is considered later in the context of the void transfers claim.

26    On 13 June 2014, Georgia transferred $150,000 and $140,000 from account G550 to account P339 and $10,000 to account P339. These payments are the subject of the void transfers claim. There is an issue in relation to the subsequent transfer of funds from account P339. That issue is considered in the context of the void transfers claim.

27    On 23 June 2014, the hearing of Mr and Mrs Pisano’s claim against Georgia and Patrick commenced before Hammerschlag J. On 8 August 2014, Hammerschlag J handed down a judgment in favour of Mr and Mrs Pisano and ordered Georgia and Patrick to pay Mr and Mrs Pisano damages of over $1 million.

28    On 7 October 2014, Georgia presented a debtor’s position to the Trustee. On 24 October 2014, the Trustee was appointed Georgia’s trustee in bankruptcy.

29    On 29 June 2015, the New South Wales Court of Appeal upheld Patrick’s appeal against the orders made against him by Hammerschlag J. Those orders were set aside.

THE VOID TRANSFERS CLAIM

30    Section 120(1) of the Bankruptcy Act provides as follows:

(1)    A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor’s bankruptcy if:

(a)    the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and

(b)    the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property.

31    Section 120(7) of the Bankruptcy Act provides as follows in relation to the meaning of “transfer of property”:

(7)    For the purposes of this section:

(a)    transfer of property includes a payment of money; and

(b)    a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and

(c)    the market value of property transferred is its market value at the time of the transfer.

32    The Trustee’s claim in relation to the three transfers totalling $300,000 made from account G550 to Patrick’s accounts on 13 June 2014 was fairly straightforward. First, he contended that the transfers of funds from Georgia’s account to Patrick’s accounts were transfers of property for the purposes of s 120(1) of the Bankruptcy Act. Second, he contended that the transfers took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy. Third, he contended that Patrick, as transferee, gave no consideration for the transfer.

33    The Trustee claimed that the money in Georgia’s account was her money, being the proceeds of a loan from her father to her alone. There was, in the Trustee’s submission, nothing to suggest that Patrick provided any consideration for the transfers. In the Trustee’s submission, the fact that some of the amounts standing to the credit of Patrick’s accounts as a result of the transfers may have been used for the payment of Georgia’s liabilities or expenses, or for liabilities or expenses of the family, was immaterial. That was because no adequate “nexus” had been shown between the amounts deposited into Patrick’s accounts and the amounts ultimately paid to discharge or reduce Georgia’s liabilities or expenses.

34    Patrick denied that the transfers of $300,000 from account G550 to his accounts were transfers for the purposes of s 120(1) of the Bankruptcy Act. That was because he had no knowledge of the transfers and did not intend to receive or obtain or receive any property from Georgia.

35    Patrick also contended that even if the transfers of $300,000 from Georgia’s account to his accounts were capable of being transfers of property for the purposes of s 120(1) of the Bankruptcy Act, he was in any event beneficially entitled to $150,000 of the funds that were transferred into his accounts. That was because the loan that was the source of the funds was a joint loan and Georgia therefore held half the proceeds of that loan on trust for him. Accordingly, at most there was only a transfer of the $150,000 that was beneficially owned by Georgia. As for those funds, Patrick contended that the evidence revealed that roughly $150,000 of that money was ultimately used to pay Georgia’s liabilities and expenses. It followed, in Patrick’s submission, that while that money was channelled through his account, he did not receive any benefit from those funds. Alternatively, in his submission, consideration was in effect provided in respect of those funds because Georgia ultimately received a benefit from them, being the discharge of her debts and liabilities. It should be noted, in this context, that the evidence clearly established that all of the relevant payments into and out of the various bank accounts in Patrick and Georgia’s names were made by Georgia.

36    The competing claims of the Trustee and Patrick essentially raise four issues for resolution. First, was the loan from Georgia’s parents a loan to Georgia alone or a loan to her and Patrick jointly? Second, was a total of about $150,000 of the funds transferred by Georgia into Patrick’s account eventually used to discharge Georgia’s liabilities or expenses and pay other joint household expenses? Third, having regard to the findings made in relation to the first two issues, were the transfers of $300,000 from Georgia’s account to Patrick’s accounts transfers of property for the purposes of s 120(1) of the Bankruptcy Act? Fourth, having regard to the subsequent use of the funds that were transferred into Patrick’s account, can it be concluded that the three transfers totalling $300,000 from Georgia’s account to Patrick’s accounts were made without consideration for the purposes of s 120(1) of the Bankruptcy Act?

Issue 1: was the loan to Georgia alone, or to Georgia and Patrick jointly?

37    The facts and evidence in relation to this issue were fairly narrow in compass.

38    The Trustee relied heavily on three facts. The first was the indisputable fact that Mr Dandris transferred the $300,000 into an account which was in Georgia’s name alone. It was not transferred into one of Patrick and Georgia’s joint accounts. The second was that Mr Dandris lodged a proof of debt in Georgia’s bankruptcy which, on its face, recorded that Georgia owed him $300,000 in respect of a loan made in June 2014. The third was that the statement of affairs Georgia provided to the Trustee listed Mr Dandris as a creditor for $300,000. In the column which asked whether the debt was a joint debt, a tick was placed in the “no” circle.

39    Patrick relied on his evidence of a conversation with Georgia in June 2014 about the loan and evidence from Mr and Mrs Dandris. He also relied on details recorded on relevant bank statements. Georgia did not give evidence.

40    Patrick’s affidavit evidence was that, in June 2014, Georgia said to him: “My Dad has offered to lend us some money to help with legal expenses and bills. I have asked him for $300,000”. The effect of Patrick’s evidence was that he understood that the $300,000 was loaned to both Georgia and him. There was no objection to that part of Patrick’s affidavit. Nor was it the subject of cross-examination. While Patrick was not asked about the basis of his understanding that the loan was made to both Georgia and him, it would appear that the understanding was based mainly, if not exclusively, on what Georgia had told him: that her father had offered to lend “[them]” some money.

41    Mr Dandris’ affidavit evidence was that, in 2010, either Georgia, Patrick, or both of them, had a conversation with him in which one of them said: “We need some money to build our home”. He replied: “I can lend you $320,000. You can pay interest until the loan is repaid. You can pay me when you sell the house”. He subsequently transferred $320,000 into a bank account in the joint names of Patrick and Georgia. On 31 January 2012, $350,000 was transferred from Patrick’s account P800 to an account in Mr and Mrs Dandris’ names. The effect of Mr Dandris’ evidence was that this transfer was a repayment of the $320,000 loan plus interest. It is tolerably clear that this earlier loan was a loan made to Georgia and Patrick jointly. That was not disputed by the Trustee.

42    Mr Dandris’ evidence was that, in 2014, Georgia said to him: “Can you lend us some money as previously”. The reference to “previously” was a reference to the earlier joint loan. After discussing Georgia’s request with his wife, Mr Dandris subsequently contacted Georgia and said: “I’m going overseas. I will transfer $300,000 of my money into your account for living and legal expenses. If you use it, well and good, if you don’t use it you can return it into my account”. Georgia subsequently provided him with the details of the account into which he was to transfer the $300,000. He understood that the account details that Georgia provided were for an account in the joint names of Georgia and Patrick. He was not aware that the account was in Georgia’s name alone.

43    The general tenor and effect of Mr Dandris’ evidence was that he understood, believed and intended that the $300,000 would be a loan to Georgia and Patrick jointly, like the earlier loan, and that he was not aware that the money was transferred into an account in Georgia’s name alone.

44    Mr Dandris also addressed the proof of debt in his affidavit evidence. He did not dispute that he completed the form himself and that the writing and signature on the form were his. His evidence, however, was that when he received the document, he did not understand what a proof of debt was “in a bankruptcy context”. He said that he did not obtain legal advice, accounting advice, or any other form of professional advice with respect to the document prior to completing it. His evidence was that at the time he completed the form, he was under an “immense amount of pressure and was concerned as Georgia had become bankrupt”. He understood at the time that “the form sought information about the amount loaned, not the amount of the current debt”.

45    Perhaps not surprisingly, Mr Dandris was cross-examined concerning the proof of debt and his evidence concerning it. He staunchly maintained that when he filled out the form, he understood that he was being asked to “clarify the amount of the loan” or “state the amount of the loan”. He denied he understood that if the form was accepted he would be admitted to vote as a creditor in his daughter’s estate.

46    Mr Dandris was also cross-examined about the conversation he had with Georgia in relation to the loan. His evidence was not always easy to follow, though in substance he maintained that he understood that he was making the loan to both Georgia and Patrick. When asked to give his best recollection of the conversation, he said that Georgia said: “We are in the – in the difficulties as far as finance. We’ve got litigation going. Can you help us with another loan?”

47    The affidavit evidence of Mrs Dandris was that, in mid-2014, she had a conversation with her husband during which he said: “Georgia called me and she said that we have to lend money to Georgia and Patrick because they need it for expenses”. After asking about the amount of the loan, she said: “If they need it then we have to lend it”. This conversation occurred in Greek, which was Mr and Mrs Dandris’ native tongue. There was no objection to this evidence. Nor was it the subject of cross-examination.

48    Finally, Patrick relied on the fact that the statement for Georgia’s bank account which recorded the $300,000 deposit and the subsequent transfers of $150,000, $140,000 and $10,000 included contemporaneous notes consistent with the loan being a joint loan. The entry recording the $150,000 transfer includes the narrative: “dad’s loan 2 us”. The entry recording the $140,000 transfer includes the narrative: “from Dad’s loan to us”. It may reasonably be inferred that those narratives were made by Georgia when the internet transfers were made. They are consistent with Georgia’s belief that the loan was one to her and Patrick jointly.

49    While the evidence concerning the loan was rather scanty and in some respects rather unsatisfactory, on the whole I am inclined to accept that it was Mr Dandris’ intention to make the loan to both Georgia and Patrick and that he believed that the funds were paid into an account held jointly by Georgia and Patrick. I accept his evidence concerning his conversation with Georgia. That evidence suggested that Georgia’s request was for a loan to “us”, meaning her and Patrick. That was consistent with the earlier loan which was made to both Patrick and Georgia. The version of the conversation that Mr Dandris gave in the course of his cross-examination was also consistent with a request for a loan to both Georgia and Patrick for the purpose of them paying their expenses. I also accept Mr Dandris’ evidence that he did not appreciate that the account into which he transferred the loan funds was in Georgia’s name alone.

50    Mr Dandris’ version of events was also corroborated, at least to some extent, by Patrick’s evidence concerning his conversation with Georgia and Mrs Dandris’ evidence concerning her conversation with her husband. That evidence was not challenged.

51    The notations or narratives on the relevant bank statements also support the inference that Georgia considered that the loan was made to her and Patrick jointly. Those notations also corroborate Mr Dandris’ version of events and Patrick’s evidence concerning his conversation with Georgia.

52    It is no doubt true that the proof of debt, on its face, suggested that Mr Dandris considered that the loan was made to Georgia alone. At first blush, Mr Dandris’ evidence concerning the proof of debt tended to strain credulity. In the course of cross-examination, however, it became readily apparent that Mr Dandris was not a particularly sophisticated man when it came to legal and financial issues. English was also plainly not his first language. On the whole, Mr Dandris presented as a fairly simple man who was endeavouring to tell the truth. I accept that he did not fully understand what a proof of debt was and that, when he completed the form, he believed that he was simply providing details concerning the original amount of the loan. He did not intend to convey that the loan was made to Georgia alone.

53    I also accept that Georgia’s statement of affairs tends to suggest that the loan was not a joint loan. Patrick submitted that it may be inferred that this was most likely an error, though that is an inference that is difficult to draw given that Georgia did not give evidence.

54    It should finally be noted that the evidence concerning the subsequent use of the $300,000 also tends to support and corroborate the evidence that the loan was a loan to Patrick and Georgia jointly. As will be seen, that evidence tends to reveal that the loan funds were used to discharge liabilities of both Patrick and Georgia and to meet joint household expenses.

55    On the whole of the evidence, and despite Mr Dandris’ proof of debt and Georgia’s statement of affairs, I find that the $300,000 loan was a loan made jointly to Patrick and Georgia. It was not a loan to Georgia alone.

56    It follows that when the $300,000 loan was paid into an account in Georgia’s name alone, Georgia held the funds on trust for her and Patrick either in equal shares, or to be applied in accordance with the terms upon which the loan was made: Barclays Bank v Quistclose Investments [1970] AC 567. The evidence tends to suggest that the terms upon which the loan was made were that the funds were to be used to meet both Patrick and Georgia’s living and legal expenses.

Issue 2: was $150,000 of the $300,000 transferred to Patrick’s account used to discharge Georgia’s liabilities?

57    The evidence concerning the use or dissipation of the $300,000 initially paid into account G550 and then transferred (in three tranches) to Patrick’s accounts was by no means simple or straightforward. It comprised Patrick’s affidavit evidence and the evidence of a forensic accountant, Ms Suzanne Delbridge. In short terms, Patrick’s affidavit evidence sought to explain how the funds were utilised, though much of it was based on his understanding of what had occurred. The purpose of Ms Delbridge’s evidence was to substantiate Patrick’s account by reference to the flow of funds revealed by the documentary evidence, mainly bank statements.

58    Patrick’s affidavit evidence concerning the use of the $300,000 transferred into his accounts on 13 June 2014 was not objected to or challenged in any material way in cross-examination. Nor was there any challenge to Ms Delbridge’s analysis of the documents which confirmed the relevant flow of funds. In short terms, the evidence of Patrick and Ms Delbridge established that the following payments or transactions occurred after the $300,000 initially transferred into Georgia’s account was transferred into Patrick’s accounts.

59    First, $160,000 was transferred from account P339 into what Patrick described as his “offset account” (account P390). Patrick’s evidence was that he had no knowledge of this transfer. Ms Delbridge’s evidence confirmed that this transfer was made on 13 June 2014 – the same day that the $300,000 transfer was made into account G550.

60    Second, of the $160,000 transferred into account P390, Patrick’s evidence was that “$25,000 was paid out by way of legal fees for my and Georgie’s legal representation in the Supreme Court trial”. Ms Delbridge’s evidence was that five payments, each of $5,000, were made from account P390 in the period 3 July to 26 July 2014. The bank statements contained the narration “GW legal fees”. Ms Delbridge also confirmed that the trust account statement of the solicitors who acted for Patrick recorded the receipt of four payments of $5,000 during the period 3 July to 26 July 2014. Ms Delbridge did not have access to any records from Georgia’s solicitors.

61    Third, Patrick’s evidence was that, on 12 and 19 August 2014, he obtained bank cheques for $152,000 and $48,000 drawn on account P390. Those bank cheques were made out to himself. Patrick subsequently deposited those bank cheques into a National Australia Bank account in his name (account P174). Ms Delbridge’s evidence confirmed that account P390 was debited $152,000 and $48,000, that bank cheques for those amounts were drawn, and that those bank cheques were deposited into account P714. Ms Delbridge also commented that the following payments were made from account P174 in the period 1 September 2014 to 27 January 2015: $63,500 was paid to Patrick’s solicitors; $28,505 was paid to reduce the balance on one of Patrick’s credit cards; and $5,675 was used to reduce the balance on one of Georgia’s credit cards.

62    Fourth, Patrick’s evidence was that, on 16 September 2014, the remaining funds in account P390 were garnished by Mr and Mrs Pisano by way of enforcement of the judgment that had been handed down in their favour in the Supreme Court. Ms Delbridge’s evidence confirmed that a bank statement for account P390 records a miscellaneous debit of $800,574 on 16 September 2014.

63    Fifth, Patrick’s evidence was that the “balance of $130,000 from the funds loaned to us by Georgie’s father” initially remained in account P339, but that $109,000 was then used to “pay the cost of my and Georgie’s legal representation”. Specifically, $79,000 was paid “on account of Georgie’s solicitors and barrister fees, expert witness costs and Court fees” and the balance of $30,000 was expended in payment of his solicitor and barrister fees. Ms Delbridge’s evidence confirmed that the documentary evidence recorded that $70,000 of the funds in account P339 was paid to Georgia’s solicitors and $35,000 was paid to Patrick’s solicitors.

64    Sixth, Patrick’s evidence was that he understood that, on 30 June 2014, transfers of $9,000 and $10,000 were made from his account to Georgia’s ANZ Bank credit card account (account G870). Those transfers were confirmed by Ms Delbridge. Patrick’s evidence was that those payments were made “in repayment of expenses incurred thereon for our living expenses and those of our daughter, including for petrol, food, tolls, parking fees, medical costs, and costs of a family holiday and for travel expenses associated with my employment”.

65    Seventh, and finally, Patrick’s evidence was that “the balance of $10,000 from the funds Georgie’s father loaned us” was used to reduce the debit balance of a loan account he described as his portfolio loan account. Ms Delbridge confirmed that, on 13 June 2014, $10,000 was transferred from account G550 to account P800.

66    An analysis of these payments and transactions would tend to suggest that, of the $300,000 that was loaned to Patrick and Georgia jointly, just over $150,000 was eventually utilised to pay or reduce liabilities associated with Patrick ($118,500 was paid to Patrick’s solicitors, $28,505 was used to reduce the balance on Patrick’s credit cards, and $10,000 was used to reduce the balance on one of Patrick’s loan accounts) and just over $105,330 was used to pay or reduce liabilities associated with Georgia ($80,655 was paid to Georgia’s solicitors and $24,675 was used to reduce the balance on Georgia’s credit cards).

67    As has already been noted, the Trustee did not challenge Patrick’s evidence concerning these payments, nor Ms Delbridge’s analysis of the cash flow. Nor did the Trustee provide any competing analysis of the relevant payments or transactions. The extent of the Trustee’s submission in relation to this aspect of his case was that there was no adequate “nexus” between the amounts deposited and the amounts said to have been paid in respect of Georgia’s liabilities. The Trustee gave one example to substantiate that submission. Patrick’s evidence was that, of the $160,000 transferred into account P390 on 13 June 2014, $25,000 was used to pay legal fees. The Trustee pointed out, however, that when the $160,000 was transferred to account P390, the account already had a credit balance of $267,990. It followed, the Trustee submitted, that the $160,000 was completely unnecessary in order to pay the $25,000 legal fees. The legal fees, or at least some of them, were also paid some considerable time after the transfer of $160,000.

68    There is some merit in the Trustee’s submission concerning the nexus between some of the transfers relied on by Patrick. Upon close analysis, the flow of funds between the various bank accounts cannot always be traced or precisely married up to the payment of the legal and living expenses of Patrick and Georgia. Patrick’s explanation of the payments and transfers was, it would appear, a rather convenient but somewhat unrealistic or contrived reconstruction of events. Nevertheless, the point remains that the Trustee made no attempt to challenge Patrick’s evidence concerning his understanding of the purpose of the transfers and payments. Nor did he dispute Ms Delbridge’s analysis of the cash flow, or produce any alternative analysis, or make any detailed submissions concerning the cash flow.

69    Perhaps more significantly, there could be little doubt that the evidence showed, at the very least, that the loan funds of $300,000 which Georgia transferred to Patrick’s accounts were not simply appropriated by Patrick for his own use. Rather, they were ultimately used by Georgia to pay both her and Patrick’s legal expenses, reduce the balance of Patrick’s loan account and reduce the credit card liabilities of both her and Patrick. Some of the credit card liabilities arose because the credit cards were used to meet Patrick and Georgia’s joint or family living expenses. In short terms, the $300,000 loaned to Patrick and Georgia was treated as a joint fund from which both of their expenses and liabilities could be paid. That was consistent with the terms upon which the loan was made. While it is not entirely clear exactly why the funds were transferred between various accounts before the debts were ultimately paid, or the liabilities were reduced, that was broadly the end result.

70    It should also be noted in this context that the pattern of the flow of funds between Patrick and Georgia’s various bank accounts following the transfer of $300,000 on 13 June 2014 was broadly consistent with the flow of funds between those accounts at other times. As has already been noted, Patrick’s unchallenged evidence was that he essentially left the management of his and his family’s financial affairs up to Georgia. It was Georgia who was responsible for the transfers between the various accounts, and the ultimate payment of debts, liabilities and expenses. Ms Delbridge gave the following evidence concerning the general pattern of the flow of funds between the various accounts:

Q: Perhaps I will put it in a proposition and see if you agree or disagree, but one impression that one could gain from the various transactions between these accounts was that the - whilst the accounts were styled in, for example Georgia Dandris’ name, or Mr Williams’ name or, in some cases, joint accounts, the funds seem to be treated really as joint accounts and moved willy-nilly between the various accounts without any particular rhyme or reason. Is that an impression you gained or not?

A: I - not necessarily, your Honour, because there seems to be a very separate accounting between the bank accounts. The accounts seem to have been established for a particular purpose, that there be a line of credit against a particular property, but then there seems to be - the joint account that they did have didn’t have much going on in it at all and it seems to be that funds were transferred with a great regularity - there’s lots of movements happening - but it always seems to be very specifically recorded. So, for example, if funds are transferred - if Mr [sic] Williams has to pay her credit card, funds sometimes will be transferred from Mr Williams’ account into her account and then she pays the credit card. If there was a true mingling of the funds, I think he would have just paid her credit card, but there seems to be a - whether they wanted to be able to trace who was doing what with the funds, I’m not quite sure of the purpose of that, and similarly ---

Q: But, still, that’s an - that example you just gave was Mr Williams - I withdraw that - funds standing in an account in Mr Williams’ name being used to pay Mrs Williams’ credit cards ---?

A: A credit card debt in her name. Yes.

Q: --- albeit that it goes into her line of credit account first?

A: First before it goes.

Q: Yes?

A: So I think it was very convoluted. I mean, surely it’s obvious that he’s the one that’s earning the money. The pay is going into his account, so then they need to access that to fund joint credit card debts and the rest of it, but I thought it was unusual that there was such a separate maintenance of both an everyday account, and then a line of credit and then there was the other sort of property transactions, so I found that unusual. And normally, I would see - I do an awful lot of work in the Family Court jurisdiction and normally I’m looking at a bank account that has the life of the parties running through it and credit cards being paid out of it. This was quite different to that situation in that there was these very separate accounts maintained.

71    In all the circumstances, the evidence supports the finding that Georgia used the $300,000 loaned to her and Patrick broadly in accordance with the purpose for which the funds were loaned: to pay her and Patrick’s debts and living expenses. Of the $300,000 transferred into Patrick’s accounts, only about $150,000 was applied to discharge Patrick’s liabilities. Just over $100,000 was applied to discharge Georgia’s liabilities. The balance cannot be traced. The available inference is that it was applied towards the joint living expenses of Patrick and Georgia.

Issue 3: was there a transfer of property for the purposes of s 120(1) of the Bankruptcy Act?

72    While Patrick denied that the transfer of $300,000 from Georgia’s account to his account on 13 June 2014 was a transfer of property for the purposes of s 120(1) of the Bankruptcy Act, neither party advanced any substantive submissions in respect of this issue. The issue is not entirely straightforward having regard to the particular circumstances of this case and, in particular, having regard to the findings that have been made in relation to the first two issues.

73    Section 120 of the Bankruptcy Act in its present form was introduced by amendments to the Bankruptcy Act made in 1996. Prior to that time, s 120 dealt with “settlement of property”. While “property” was understood to include money, it had been held that a “settlement” of property required a purpose of conferring a benefit on the disponee, and therefore contemplated retention by the disponee of the property settled for at least some period, rather than its immediate dissipation or consumption: see Anscor Pty Ltd v Clout (2004) 135 FCR 469 at [29]-[30] (Lindgren J) and the cases there cited. Section 120 in its present form, however, concerns transfers of property and, significantly, s 120(7) expressly provides that a “transfer of property” includes a “payment of money”.

74    In Anscor at [31], Lindgren J noted that the notion of a “transfer of property” in the present s 120 does not require retention of the transferred property for any period. Wilcox and Moore JJ, on the other hand, while accepting that the legislature may well have intended that a trustee in bankruptcy could avoid a transaction involving the payment of money under s 120 in a way that was not on all fours with the avoidance of a settlement of property under the earlier provisions, reserved their position and expressed no concluded view in relation to that proposition. They noted that the payment of money does not readily fall into the description of a conveyance or transfer of property.

75    Accepting, for present purposes, that a payment of money can amount to a transfer of property for the purposes of s 120(1) of the Bankruptcy Act, there are at least five other complicating factors in play in the circumstances of this matter. The first complicating factor is that, for the reasons that have already been given, Georgia held half of the money that was transferred into her account on trust for Patrick. Thus, when she transferred $300,000 to Patrick’s accounts, $150,000 of that amount was beneficially owned by Patrick in any event. The second complicating factor is that the evidence showed that Patrick was unaware of the payment and had no intention of receiving or retaining it. The third complicating factor is that within a relatively short space of time, the funds paid to Patrick were dissipated. The fourth complicating factor is that the funds paid to Patrick were dissipated not by Patrick, but by Georgia, who exercised effective control over Patrick’s account. The fifth complicating factor is that, as has been found, the funds were applied to reduce the liabilities of both Patrick and Georgia.

76    In light of those complicating factors, could it be concluded that the transfer of $300,000 from Georgia’s account to Patrick’s account was a “transfer of property”? As has already been noted, the parties did not provide any real assistance in resolving this issue. The Court was not taken to any authorities that provided any assistance. The Trustee appears to have simply assumed that the relevant transfer was a “payment of money” and therefore a transfer of property by reason of s 120(7) of the Bankruptcy Act.

77    The Trustee ultimately bore the onus of proving that the transfer of $300,000 from Georgia’s account to Patrick’s accounts was a transfer of property for the purposes of s 120(1) of the Bankruptcy Act. In all the circumstances, I am not satisfied that he has discharged that onus.

78    While it may be accepted that a payment of money can, in some circumstances, be a transfer of property for the purposes of s 120(1) of the Bankruptcy Act (even if it would not have constituted a settlement of property under the law prior to the 1996 amendments to the Bankruptcy Act), it does not necessarily follow that all or any payment of money will necessarily constitute a transfer of property. There may be some cases where the payment is made in circumstances which make it difficult to conclude that there was in fact any transfer of property. This is such a case.

79    For the reasons already given, because the loan from Georgia’s parents was a loan to Georgia and Patrick jointly, Patrick was beneficially entitled to half the proceeds of that loan. It follows that Patrick was beneficially entitled to $150,000 of the $300,000 that was transferred into Patrick’s accounts. It is difficult, if not impossible, to see how the transfer of those funds in those circumstances could constitute a transfer of property for the purposes of s 120(1) of the Bankruptcy Act. The person to whom the funds were transferred, Patrick, was already beneficially entitled to those funds.

80    As for Georgia’s share of the loan funds, while those funds were in the first instance transferred to Patrick’s account, as has already been discussed in detail, the evidence of Patrick and Ms Delbridge showed that roughly $100,000 of those funds was ultimately used to discharge or reduce Georgia’s liabilities. It might reasonably be inferred that the balance was used to meet the living expenses of Georgia and her family. It is, in those circumstances, difficult to see how it could be concluded that there was a relevant transfer of those funds by Georgia to Patrick. While it is not known exactly why Georgia transferred the funds into Patrick’s account first, it might nonetheless be inferred that she did not intend that the funds would be retained in Patrick’s account for any period of time. Rather, she intended that her share of the funds would be further transferred within a short space to pay her and her family’s liabilities and living expenses. It should be reiterated, in this context, that Patrick’s unchallenged evidence was that Georgia controlled the finances and conducted all the relevant transactions and that he did not know that the funds had been transferred into his account, or seek to use or exercise any control over those funds at any time.

81    In the unusual and unique circumstances of this case, while there was undoubtedly a payment of money by Georgia to Patrick, the Trustee has failed to prove that there was a relevant transfer of property. It follows that the Trustee’s case in relation to the 13 June 2014 transfer of funds must fail. Despite this, consideration should be given to the fourth issue, particularly in circumstances where the Trustee might appeal this finding and it might be found to be wrong.

Issue 4: were the transfers totalling $300,000 made without consideration?

82    This issue is addressed on the basis that, contrary to the finding made in relation to issue 3, the transfer of $300,000 from Georgia’s account to Patrick’s account was a transfer of property for the purposes of s 120(1) of the Bankruptcy Act.

83    The question whether Patrick gave consideration for the transfer of $300,000 to his accounts is again not an easy question to resolve in the particular circumstances of this case. The Trustee ultimately advanced virtually no substantive submissions in support of his case that the transfers were made without consideration. He did not address the Court in any detail concerning the relevant evidence, or take the Court to any authorities in support of the contention that the transfers were made without consideration.

84    While the Trustee did not say so in terms, it would appear that his case in relation to the $300,000 transfer hinged on three contentions or propositions. The first was that the $300,000 that was transferred into Patrick’s accounts was Georgia’s property alone. The second was that, in assessing whether the transfer was without consideration, it was unnecessary or perhaps irrelevant to have regard to how the funds were ultimately used. The Trustee’s case proceeded on the premise that it was enough for him to prove the transfer of the loan funds from Georgia’s account to Patrick’s accounts, and that anything that happened thereafter was essentially irrelevant. The third contention was that, even if the subsequent use of the funds was relevant, there was no nexus between the transfers and the payments that ultimately reduced or discharged Georgia’s liabilities or paid her expenses.

85    Each of the contentions or propositions that underlie the Trustee’s case are either wrong or unsupported by the evidence.

86    First, for the reasons already given, the $300,000 initially paid into Georgia’s account was the proceeds of a loan made by Georgia’s parents to Georgia and Patrick jointly. The purpose or condition upon which that loan was made was that it was to be used to pay Georgia’s and Patrick’s legal and living expenses. In those circumstances, either Georgia held half of the $300,000 on trust for Patrick, or alternatively she held the whole of that amount on trust to be used in accordance with the purpose or condition of the loan.

87    Second, in addressing the question whether Patrick gave any consideration for the transfers, it is not enough to simply look at the transfers alone. Those transfers must be looked at in context. That context included that it was Georgia who was responsible for dealing with her and Patrick’s finances. That responsibility included making transfers between their various accounts and paying their joint and individual debts and expenses. The context also includes the evidence of what the loan funds were ultimately used for. It would be wrong to simply stop at the transfers which occurred on 13 June 2014.

88    Third, as discussed in detail earlier, the evidence broadly showed that the loan funds initially transferred into Georgia’s account, and then transferred into Patrick’s account, were ultimately utilised, in one way or another, in accordance with the purpose and condition upon which the loan was made. The funds were used to pay the debts and expenses of both Patrick and Georgia, as well as their family living expenses. At least $100,000 was ultimately directly or indirectly applied to reduce or discharge Georgia’s liabilities.

89    It is difficult to apply s 120 of the Bankruptcy Act to this factual scenario. It is particularly difficult to resolve the issue of whether Patrick gave consideration for the money transferred into his account. It would appear that he was not responsible for, and knew nothing about, the transfers at the time it was made. Nor does it appear that he had any involvement or knowledge of the transfers and payments that followed. They were carried out by Georgia pursuant to the arrangement whereby she handled both their finances.

90    The Trustee had the onus of proving that s 120 was engaged and that Patrick gave no consideration for the relevant transfer of funds. In all the circumstances, I am not satisfied that he has discharged that onus. That is so for a number of reasons.

91    First, for the reasons that have already been given, Patrick was beneficially entitled to $150,000 of the $300,000 that was transferred into his accounts. Even if the payment was a transfer of property for the purposes of s 120(1), it is rather nonsensical to suggest that Patrick was somehow obliged to give consideration for the $150,000 that was beneficially his in any event.

92    Second, as for the $150,000 of the transferred funds that was beneficially owned by Georgia, as has already been discussed in some detail, roughly $100,000 was in due course transferred to discharge Georgia’s debts and liabilities. While it is unclear what happened to the balance of the funds, a fair inference from all the evidence is that it was used to pay for the living expenses or joint liabilities of Patrick, Georgia and their family. It follows that Georgia’s share of the joint loan from her parents was ultimately used to pay Georgia’s liabilities or her family’s living expenses. While for whatever reason those funds were channelled through Patrick’s accounts in the first instance, it is difficult to see how it could sensibly be said that Patrick was somehow obliged to give consideration for those transfers. That is all the more so in circumstances where all the relevant transfers were made without Patrick’s knowledge.

93    In all the circumstances, the Trustee’s claim in relation to the transfer of $300,000 on 13 June 2014 must fail. That transfer did not, in all the circumstances, constitute a transfer of property for the purposes of s 120(1) of the Bankruptcy Act. If it did, the Trustee in any event failed to prove, in the somewhat unique circumstances of this case, that Patrick relevantly failed to give consideration for that transfer.

The Claim concerning the proceeds of sale of the Blake Street property

94    The Trustee’s pleaded case in relation to the proceeds of sale of the Blake Street property was, at least at first blush, relatively straightforward. Patrick and Georgia owned the Blake Street property as joint tenants. While the net proceeds of sale of that property were paid into an account in Patrick’s name only, Georgia and Patrick had a joint interest in the sale proceeds: Scott v Scott [2009] NSWSC 567 at [59]–[61]. Patrick accordingly held a half share of the proceeds on trust for Georgia. Her beneficial interest in that half share of the proceeds vested in the Trustee upon Georgia being declared bankrupt. The Trustee’s case was that, in those circumstances, Patrick should account to the Trustee for that half share.

95    The declaration and order sought by the Trustee in respect of the proceeds of sale of the Blake Street premises were in the following terms:

4    A declaration that the Respondent held the net proceeds of sale of the property at 53 Blake Street, Dover Heights New South Wales, being $1,562,763.58 on trust for the Applicant as to one half share.

5    An order that the Respondent pay to the Applicant $781,381.75 being the half share referred to in order 4 together with interest pursuant to section 51A of the Federal Court of Australia Act 1976.

96    The simplicity of the Trustee’s pleading belies the difficulty and complexity of the Trustee’s claim to be entitled to an account or payment from Patrick reflecting a half share of the proceeds of sale of the Blake Street property. It ignores the ineluctable fact that, within a very short space of time after the deposit of the sale proceeds in Patrick’s account, the funds were dissipated. It also ignores the fact that it was Georgia who was responsible for that dissipation. By the time Georgia was declared bankrupt and the Trustee was appointed, some two and a half years later, there was no identified or identifiable fund or property in existence which Patrick could be said to have held on trust for Georgia. In those circumstances, it is difficult to see how it could be contended that Georgia had a beneficial interest in any identifiable property or fund held by Patrick which vested in the Trustee upon Georgia’s bankruptcy.

97    The Trustee did not plead that any of the funds that Patrick may have initially held on trust for Georgia could be traced into any other property or fund. He appeared, at least initially, to somewhat half-heartedly contend that some of the funds held on trust for Georgia “flowed into” the acquisition by Patrick of the Military Road property. If that was intended to amount to a submission that the alleged trust funds could be traced into the acquisition of the Military Road property, that submission is rejected. The Trustee did not explicitly plead that the funds held on trust for Georgia could be traced to the acquisition of the Military Road property. More significantly, the evidence was not capable of sustaining any such case.

98    The evidence concerning the flow of funds for Patrick’s account that was credited with the sale proceeds, account P800, does not establish that any money from that account was directly used to acquire the Military Road property. At its highest, the evidence revealed that $450,000 of the sale proceeds was transferred to an account in Georgia’s name (account G291) on 31 January 2012. About 3 months later, and after many flows of funds into and out of that account, $209,000 was transferred from that account into an account in Patrick’s name, account P800 on 9 May 2012. It was on that account that a cheque for $209,000 had been drawn a few days earlier for the payment of a deposit on the Military Road premises.

99    Given the effluxion of time between the $450,000 transfer and the $209,000 transfer, and the significant movements in the balance of the relevant accounts of both Patrick and Georgia during that time, it could not be concluded that the $209,000 that Patrick paid by cheque for the deposit of the Military Road premises comprised funds that he initially held on trust for Georgia from the sale of the proceeds of the Blake Street property. The deposit was paid by Patrick’s drawing down on a loan account. Whilst the later corresponding transfer from Patrick’s account reduced the debit balance on that account by the same amount as the amount of the deposit, it does not follow that the money transferred from Georgia’s account was used to purchase the Military Road premises.

100    The Trustee did not plead any in personam action against Patrick in relation to the dissipation of the proceeds of sale of the Blake Street property. He did not allege that Georgia had a cause of action against Patrick in relation to the dissipation of the sale proceeds, or that any such cause of action vested in him as Trustee. He did not, for example, allege that Georgia had an action against Patrick for breach of trust which vested in him as Trustee. That is perhaps understandable, particularly given that the evidence clearly revealed that it was Georgia who was entirely responsible for dissipating the sale proceeds.

101    A further difficulty for the Trustee is that the detailed evidence relating to the flow of funds from the account into which the sale proceeds was received reveals that much of the money was ultimately used for the benefit of Georgia, because it was used to pay or reduce her liabilities, or meet her and her family’s living expenses. Immediately before the deposit of the sale proceeds in Patrick’s account, the account had a debit balance of approximately $125,000. Within a week, the credit balance which resulted from that deposit was effectively dissipated by various internet transfers and payments. The account returned to a debit balance. The unchallenged evidence of both Patrick and Ms Delbridge showed that a significant proportion of those transfers or payments were directly or indirectly applied for Georgia’s benefit.

102    First, on 27 January 2012, $10,000 was transferred from account P800 to account G550.

103    Second, on 30 January 2012, $125,000 was transferred from account P800 to pay down Georgia’s line of credit account G231.

104    Third, on 30 January 2012, $21,000 was transferred from account P800 to account G550.

105    Fourth, on 31 January 2012, $350,000 was transferred from account P800 to a bank account in the name of Mr and Mrs Dandris. Patrick’s unchallenged evidence was that this transfer represented the repayment of the loan of $320,000 that Mr and Mrs Dandris had made to Georgia and Patrick jointly in June 2010 for the renovation of the Blake Street property, together with interest payable in respect of that loan. It follows that $175,000 of that transfer was applied for Georgia’s benefit because it discharged her indebtedness in respect of the joint loan.

106    Fifth, on 31 January 2012, $450,000 was transferred from account P800 to account G291. The evidence revealed that some of the funds in account G291 were used to pay some joint expenses of Georgia and Patrick. More significantly, the funds were used by Georgia to either acquire assets in her name, or reduce her indebtedness. Those acquisitions or payments included almost $50,000 used to acquire shares in Georgia’s name and $106,465 used to reduce the debit balance of an ANZ credit card in Georgia’s name (account G870).

107    This is not intended to be a complete analysis of all of the transfers from Patrick’s account that received the sale proceeds of the Blake Street property. Some of the transfers from the account were not the subject of any explanation or evidence. Other transfers from Patrick’s account P800 were for his benefit. From this brief analysis, however, it would appear that out of the initial transfers from Patrick’s account, approximately $764,000 was referable in some way to expenses or liabilities of Georgia. Thus, even accepting that Georgia and Patrick were joint tenants in respect of the sale proceeds, and that Patrick held half the proceeds on trust for Georgia, Georgia effectively received most of her share of the proceeds in any event. It must also again be noted, in this context, that Patrick’s unchallenged evidence was that Georgia was responsible for making all of those transfers. There was also evidence that suggested that even though account P800 was in Patrick’s name alone, it was treated as Patrick and Georgia’s “main working account”. The transfers of funds into and out of the account were consistent with that characterisation of the account.

108    Finally, it should be noted that, on 31 January 2012, the selling agent for the Blake Street property transferred the sum of $103,521 to one of Georgia’s accounts. This amount represented the deposit paid by the purchasers of that property, and was thus part of the proceeds of sale. While this amount was paid into an account in Georgia’s name only, Georgia and Patrick had a joint interest in this deposit, and Georgia accordingly held a half share of that amount on trust for Patrick.

109    None of this is to say that the financial affairs of Georgia and Patrick following the receipt of the proceeds of the sale of the Blake Street property, or indeed at any time, can or should be approached as if there was a sort of running account or ledger between them. Patrick and Georgia had many bank accounts. Some were joint accounts, but many were not. Funds were regularly transferred between those accounts. As discussed earlier, the evidence of the forensic accountant, Ms Delbridge, was to the effect that the financial affairs of Patrick and Georgia did not involve a complete mingling of funds. Rather, there appeared to be some attempt to keep some degree of separation between their separate financial affairs. The example given by Ms Delbridge was that, if funds were to be applied to reduce the debit balance of a credit card in Georgia’s name, funds would often be transferred from an account in Patrick’s name to an account in Georgia’s name, before they were finally transferred to Georgia’s credit card account. Nevertheless, the flows of funds were quite convoluted and complex and there was often no clear nexus or link between the various transactions.

110    The Trustee’s case that Mr Williams was liable to account for half the sale proceeds essentially ignored the complexity of the financial affairs and dealings between Georgia and Patrick. It ignored the fact that the sale proceeds, albeit paid into an account in Patrick’s name, were dispersed by Georgia and that a significant proportion of the proceeds were ultimately applied for her benefit.

111    Somewhat belatedly, the Trustee sought to rely on his own analysis of some of the transfers between Georgia and Patrick in the two-and-a-half-year period following the deposit of the sale proceeds into Patrick’s account. The Trustee submitted, at least initially, that the analysis showed that the “balance” was in favour of Georgia. That analysis was simplistic and flawed. It included only a select number of transactions and ignored many transactions which, at least from the bank statements, appeared to involve transfers of money from accounts in Patrick’s name to accounts in Georgia’s name. In his final submissions, the Trustee did not seek to defend this analysis.

112    In the end result, the Trustee failed to demonstrate that he is entitled to the substantive relief that he sought in relation to the proceeds of the sale of the Blake Street property. In particular, even accepting that Patrick and Georgia initially had a joint interest in the sale proceeds and Patrick held half of the proceeds on trust for Georgia (given that they were paid into an account in Patrick’s name only), the Trustee failed to advance any reason or basis in law why Patrick should be held liable to account for the Trustee for half the sale proceeds. The evidence showed that Georgia caused the sale proceeds to be dissipated, including to accounts in her name, years before she became bankrupt and the Trustee was appointed. The Trustee made no real attempt to trace the money initially held on trust for Georgia into any asset or fund held by Patrick at the time Georgia was declared bankrupt. It should also be noted in this context that the Trustee did not allege that any of the relevant transfers or transactions were made for the purpose of defeating Georgia’s creditors.

Claim in relation to the military road property

113    The real nature of the Trustee’s claim in respect of the Military Road property only emerged in the Trustee’s closing submissions. Patrick complained that the case as finally put by the Trustee was not properly pleaded. In those circumstances, it is necessary to set out exactly how the Trustee pleaded the alleged trust in relation to the Military Road premises.

114    The Trustee’s pleading in relation to this aspect of the claim was, to say the least, brief, simplistic and somewhat obscure. It was pleaded as an alternative to the claim in respect of the proceeds of sale of the Blake Street property (which is pleaded in paragraphs 32 to 36 of the Amended Statement of Claim), though curiously the Trustee, in his final submissions, referred to his claim in relation to the Military Road property as his primary claim. Paragraphs 33 and 37 of the Amended Statement of Claim were in the follow terms:

33    The residence at Blake Street was the matrimonial home of the Respondent [Patrick] and the Bankrupt [Georgia] for the period 2005 to about 2010.

…..

37    In the alternative to paragraphs 32 to 36 above:

(a)    the Applicant repeats paragraphs 1 to 8 and 10 to 12.

(b)    the residence on the Land has been the matrimonial home of the Respondent and the Bankrupt since about July 2012.

(c)    upon acquiring the Land the Respondent held one half of his interest in the Land upon trust for the Bankrupt.

(d)    the interest of the Bankrupt in the Land vested in the Applicant pursuant to section 58 of the Act.

(e)    the Applicant is entitled to be registered as a proprietor of the Land as a tenant in common in equal shares.

(f)    the Applicant requires the Land to be sold and the proceeds of sale to be divided equally between the parties after discharge of the registered mortgage and payment of the costs of sale.

115    Paragraphs 1 to 8 and 10 to 12 of the Amended Statement of Claim were as follows:

1    The Applicant was appointed as the trustee in bankruptcy of Georgia Williams (Bankrupt) on 24 October 2014.

2    The Respondent and the Bankrupt are married and at all material times have been living together as man and wife ever since.

3    In about December 2003 the Respondent and the Bankrupt purchased the land known as 53 Blake Street, Dover Heights in the State of New South Wales (Blake Street) as joint tenants.

4    The Respondent, the Bankrupt and their child, Olivia, lived in the residence at Blake Street from about 2005 until about 2010.

5    From some time in 2010 until about November 2011:

(a)    the Respondent, the Bankrupt and their child vacated Blake Street;

(b)    the Bankrupt, under an owner-builder permit, renovated the residence at Blake Street;

(c)    the Bankrupt contributed greatly to the increase in value of Blake Street by supervising and managing the conversion of the residence thereon from a modest three bedroom bungalow to a modern 2 storey 5 bedroom executive home.

6    On 25 January 2012 the Respondent and the Bankrupt sold Blake Street to Bruno and Sia Pisano (the Pisanos) for $3.35M.

7    After payment of sale agent's commission, adjustments under the contract of sale for water and Council rates, conveyancing costs and for the discharge of the registered mortgage on title the Respondent and the Bankrupt were due net proceeds from the sale of Blake Street of $1,562,763.58 (Net Proceeds).

8    The Net Proceeds were all paid to the Respondent.

…

10    In about July 2012 the Respondent:

(a)    purchased the land at 178 Military Road, Dover Heights in the State of New South Wales (Land) for about $2.09M;

(b)    paid about $500,000 towards the purchase monies from funds available to him and the balance with assistance of a loan from St George Bank made to the Respondent.

11    The Respondent, the Bankrupt and their child have resided in the residence on the Land ever since it was purchased by the Respondent.

12    The Bankrupt has contributed to increasing the value of the house on the Land by supervising and managing the renovation of it.

116    It would appear from the pleading that there were essentially three material facts or allegations that were said to support the claim that Patrick held a half share of the Military Road property on trust for Georgia.

117    First, reliance appeared to be placed on the allegation that Patrick held half the sale proceeds of the Blake Street property on trust for Georgia. It was not alleged, in the pleading, at least not directly, that any of these funds were used to purchase the Military Road property. All that was said was that Patrick used $500,000 “from funds available to him” and loan funds for the purchase of the Military Road property.

118    Second, reliance was placed on the fact that Patrick, Georgia and their daughter had resided at the Military Road property since it was purchased and that it was therefore the “matrimonial home”. Those facts were admitted by Patrick in his defence.

119    Third, reliance appeared to be placed on the fact that Georgia had contributed to increasing the value of the Military Road property “by supervising and managing the renovation of it”. It is not entirely clear how that fact was said to support the alleged trust. Any renovation of the premises presumably occurred after acquisition, yet the trust was alleged to have arisen upon acquisition. In any event, as will be seen, there was no evidence whatsoever that the Military Road property had been renovated or that its value had increased.

120    What, then, was said to be the nature of the alleged trust? It does not appear to have been alleged that the trust was an express trust. The Trustee did not plead or otherwise allege that Patrick and Georgia actually agreed that Patrick would hold the Military Road property on trust for them both in equal shares. That is perhaps understandable, given that to be enforceable an express trust in relation to land must ordinarily be in writing.

121    Was it alleged to be a resulting or implied trust? The Trustee’s pleading did not state, in terms, that the trust was a resulting or implied trust. If it was alleged to be a resulting or implied trust, it would seem that the Trustee’s case would have had to be that the three allegations or facts just referred to give rise to a rebuttable presumption or implication of law that Patrick and Georgia intended that Patrick would hold the property on trust for him and Georgia in equal shares, or in proportion to their contributions. It would perhaps be an understatement to say that the pleading did not make that clear or explicit. The pleading made no reference to any presumption or implication that may have given rise to a resulting trust.

122    Or was it alleged to be a constructive trust? If so, once again the nature and basis of any alleged constructive trust was entirely opaque from the pleading. It was not alleged in the pleading, for example, that a constructive trust should be imposed because it would be unconscionable in the circumstances for Patrick to maintain that he held the property outright.

123    In his closing submissions, the Trustee made it tolerably clear that his case was not based on either a constructive trust, or a resulting trust arising from any presumption of law. Rather, he submitted, in effect, that an “unwritten” trust arose in respect of the Military Road property to give effect to the actual common intention of Patrick and Georgia. In the Trustee’s submission, that common intention could be inferred from three facts or circumstances: first, that Patrick and Georgia were married; second, that the Military Road property was the matrimonial home; and third, that Georgia contributed to the purchase price of the Military Road property.

124    It should perhaps be noted in this context that Patrick did not dispute that he was married to Georgia, or that the Military Road property was the matrimonial home. He did, however, dispute that there was any evidence that Georgia relevantly contributed to the purchase price of the Military Road property.

125    The Trustee contended that Georgia contributed to the purchase price of the Military Road property in three ways: first, from Georgia’s share of the proceeds of the sale of the Blake Street property, even if the proceeds were intermingled with other “household funds”; second, by Georgia contributing to the deposit for the purchase; and third, by Georgia contributing labour and the payment of other household expenses. The Trustee submitted that, in cases concerning the matrimonial home, contributions towards the purchase of the matrimonial home are not limited to the actual money used to purchase the home, but may be in the form of services, or the payment of other family expenses. In the Trustee’s submission, a common intention that the husband and wife hold the beneficial interest in equal shares may be found even if, in strictly monetary terms, one of them paid more of the purchase price than the other.

126    The Trustee also submitted that, in cases involving marriage, a “lower level of evidentiary support” is needed to prove a common intention that the spouse who had legal title in the matrimonial home held on trust for both spouses in equal shares. In those circumstances, the Trustee contended that it could be inferred that Patrick and Georgia intended that they should each have a half interest in the matrimonial home regardless of the exact amounts contributed by them.

127    Three significant issues arise from the way the Trustee ultimately put his case in relation to the trust over the Military Road premises.

128    First, is there authority which supports the Trustee’s contention that a trust may arise to give effect to a common intention concerning the beneficial ownership of the matrimonial home, and that such a common intention may inferred from the circumstances and conduct of the spouses? Can the Court declare that the property was held on trust on the basis of a finding of such a common intention?

129    Second, if there is authority that supports the Trustee’s contention, was the evidence before the Court sufficient to support an inference of a common intention? It was essentially not in dispute that the Military Road property was, and was intended to be, the matrimonial home. Was that alone sufficient to support an inference of common intention, or was it also necessary for the Trustee to prove that Georgia contributed to the purchase price in the manner contended? If so, did the evidence support the Trustee’s submission concerning Georgia’s contribution towards the purchase of the Military Road premises? Was there any other evidence which was contrary to the inference of common intention, or which supported a competing inference or inferences?

130    Third, was the case properly pleaded? Did the Trustee plead all the material facts necessary to make out his case? Was the Trustee required to identify in the pleading the legal basis of the trust he alleged? If the pleading was defective, did this give rise to any prejudice to Patrick?

Common intention and the “marriage cases”

131    This is not the occasion for a treatise or detailed exposition of the law of trusts in the context of matrimonial homes. That is because, for reasons that will be detailed shortly, the Trustee’s case based on common intention fails on the facts in any event. Nevertheless, given the lack of clarity with which the Trustee pleaded and expounded his case, it is necessary to briefly outline some of the relevant principles in this somewhat complex area of law. The following outline is derived essentially from the pellucid analysis of the relevant principles by the Court of Appeal of the New South Wales Supreme Court (Glass, Samuels and Mahoney JJA) in Allen v Snyder [1977] 2 NSWLR 685. While there have been subsequent cases in the High Court concerning this area of law, there is no indication in those cases that the principles outlined in Allen v Snyder do not relevantly represent the law.

132    The relevant principles may be summarised as follows.

133    First, any claim to a beneficial interest in real property by a person in whom the legal title is not vested must be based upon a trust. Trusts may be express, resulting (implied) or constructive: Allen v Snyder at 689F-G (Glass JA).

134    Second, a resulting or implied trust arises where the legal owner has provided none or only part of the purchase price. In those circumstances, a resulting trust is presumed in favour of the party who provided the money. It is, in other words, presumed that the party who provided the money did not intend the legal owner to have the beneficial interest in the property. Where the legal owner provided only part of the purchase money, a resulting trust arises in favour of the person who provided the balance of the purchase money. The beneficial interest of the other person who provided the purchase money is proportionate to his or her contribution: see generally Allen v Snyder at 689G-690A; Calverley v Green (1984) 155 CLR 242 at 246 (Gibbs CJ) and 255-256 (Mason and Brennan JJ); The Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 at 297-298 [55]. Thus, if A contributed 90%of the purchase price for a property, and B contributed 10%, but the legal title is held by B alone, it will be presumed that B holds the property on trust. A will have a beneficial interest in proportion to his or her contribution – 90%.

135    Third, where the legal owner (B in the example just given) is a wife, and the purchase price is provided by the husband, there is a countervailing presumption, called the presumption of advancement, that the wife takes the beneficial interest as a gift: Allen v Snyder at 690A; Calverley at 247 (Gibbs J). In such a case, the equitable interest is at home with the legal title because there is no reason for presuming that any trust has arisen: Calverley at 267 (Deane J); Cummins at 298 [55]. In the example just given, if B was A’s wife, the presumption of advancement would apply, the presumption of a resulting trust would be displaced, and B would not hold the property on trust for A.

136    Fourth, both of the presumptions just referred to – the presumption of a resulting trust and the countervailing presumption of advancement – are rebuttable: they will yield to evidence of the actual intentions of the parties: Allen v Snyder at 690B.

137    It should perhaps be noted at this stage that the Trustee’s case did not appear to be based on the legal presumption that forms the basis of a resulting trust. The trustee did not contend that the relevant trust in relation to the Military Road property was a resulting trust. He did not contend, either in his pleading or in his submissions, that it should be presumed that Patrick, as the legal owner of the Military Road property, held the property on trust for himself and Georgia in the proportions in which they contributed the purchase money. The presumption of advancement is also irrelevant to the circumstances of this case, because Patrick, not Georgia, held the legal title.

138    Fifth, a constructive trust, unlike an express or resulting trust, is raised by the operation of law without reference to the intentions of the parties: Allen v Snyder at 699A (Samuels JA). A constructive trust will arise where, according to the principles of equity, it would be a fraud, or would be unconscionable, for the legal owner to assert a beneficial interest: Allen v Snyder at 690B (Glass JA) and 699B (Samuels JA); Muschinski v Dodds (1985) 160 CLR 583 at 620 (Deane J); Baumgartner v Baumgartner (1987) 164 CLR 137 at 147-148 (Mason CJ, Wilson and Deane JJ). The important point to note is that the intention of the parties is generally irrelevant to the imposition of a constructive trust.

139    It is unnecessary to say anything further about constructive trusts. That is because the Trustee did not plead that the facts and circumstances gave rise to a constructive trust. More significantly, in his closing submissions, the Trustee expressly disavowed any reliance on the principles relating to constructive trusts. His case was based entirely on what he contended was the actual common intention of Patrick and Georgia.

140    Sixth, in the absence of writing to prove an express trust, the court will give effect to an agreement as to the manner in which the beneficial interest is to be held. The oral agreement so enforced “is one under which the claimant spouse, by contributions of one kind or another, has facilitated the acquisition of the home”: Allen v Snyder at 690F (Glass JA). The court “gives effect to the trust created by the agreement or common intention that, if the spouses contribute as contemplated, the beneficial interest will be held in accordance with their agreement or common intention”: Allen v Snyder at 691A (Glass JA). The common intention to which the court gives effect may be expressed in an oral agreement, or it may be inferred from the conduct of the parties. What is enforced is an actual intention, inferred as a matter of fact. Whether the financial arrangements between the spouses disclose an agreement or common intention referable to the beneficial enjoyment of the home is “a problem of evidence, not of law”: Allen v Snyder at 691C.

141    It is important to note at this point that there was much discussion in Allen v Snyder concerning the proper classification of a trust that is found to have arisen from a common intention, particularly where that common intention is that the parties hold the property on trust in proportions different to their contributions to the purchase price. It is unnecessary to give detailed consideration to that issue. Suffice it to say that both Glass JA and Samuels JA found that a trust found to have arisen from a common intention is properly classified not as an implied, resulting or constructive trust, but rather as an express trust which lacks writing: Allen v Snyder at 692E (Glass JA) and 699 (Samuels JA). In that respect, they disapproved much of the dicta to the contrary effect in the decisions of the House of Lords in Pettitt v Pettitt [1970] AC 777 and Gissing v Gissing [1971] AC 886.

142    Seventh, for a trust to arise from a common intention, the spouse in whom the title is not vested must have contributed in some way towards the acquisition of the property. An agreement that a spouse in whom the title is not vested shall have a beneficial interest, without requiring any contribution, would be a voluntary declaration of trust and unenforceable: Allen v Snyder at 691B (Glass JA). That said, “[f]inancial arrangements between spouses will appear in many different forms. They may involve payments, loans, gifts or services …They may relate to the deposit, the balance [of the] purchase price, the mortgage payments, the furniture, [or] the household expenditure”: Allen v Snyder at 691B-C (Glass JA).

143    While the Trustee did not say so clearly or expressly, it would appear that his case that Patrick held the Military Road property on trust for Georgia was based on the principles concerning common intention just referred to. His case was that the relevant trust was an unwritten trust arising from the inferred common intention of Patrick and Georgia in relation to the beneficial ownership of the property.

144    In his submissions, the Trustee relied heavily on a passage from the judgment of the High Court in Cummins. Before setting that passage out, it is necessary to put it in context. In Cummins, a husband and wife owned the matrimonial home as joint tenants. The husband was found to have contributed 23.7% of the purchase price, and the wife 76.3%. In 1987, the husband transferred his legal and beneficial interest in the home to his wife. He was subsequently declared bankrupt. The High Court upheld a finding that the husband’s transfer of the ownership of the home to his wife was void under s 121 of the Bankruptcy Act because his main purpose in effecting that transfer was to put the property out of the reach of his creditors in a bankruptcy distribution.

145    Of more immediate relevance, the issue arose whether the husband and wife held title in the matrimonial home as joint tenants or as beneficial tenants in common in shares in the proportions in which they had contributed to the purchase price. The critical question was whether the presumption that the husband and wife held the property on (resulting) trust for themselves in the proportions in which they contributed the purchase money was rebutted. The High Court held that it had been rebutted. In that context, the Court said (Cummins at [71]-[72]):

The present case concerns the traditional matrimonial relationship. Here, the following view expressed in the present edition of Professor Scott’s work respecting beneficial ownership of the matrimonial home should be accepted:

“It is often a purely accidental circumstance whether money of the husband or of the wife is actually used to pay the purchase price to the vendor, where both are contributing by money or labour to the various expenses of the household. It is often a matter of chance whether the family expenses are incurred and discharged or services are rendered in the maintenance of the home before or after the purchase.”

To that may be added the statement in the same work:

“Where a husband and wife purchase a matrimonial home, each contributing to the purchase price and title is taken in the name of one of them, it may be inferred that it was intended that each of the spouses should have a one-half interest in the property, regardless of the amounts contributed by them.”

That reasoning applies with added force in the present case where the title was taken in the joint names of the spouses. There is no occasion for equity to fasten upon the registered interest held by the joint tenants a trust obligation representing differently proportionate interests as tenants in common. The subsistence of the matrimonial relationship, as Mason and Brennan JJ emphasised in Calverley v Green, supports the choice of joint tenancy with the prospect of survivorship. That answers one of the two concerns of equity, indicated by Deane J in Corin v Patton, which founds a presumed intention in favour of tenancy in common. The range of financial considerations and accidental circumstances in the matrimonial relationship referred to by Professor Scott answers the second concern of equity, namely the disproportion between quantum of beneficial ownership and contribution to the acquisition of the matrimonial home.

(Footnotes omitted).

146    The important point to emphasise is that those statements, including the approval of the statements made in Professor Scott’s book (The Law of Trusts, 4th ed (1989), vol 5), were made in the context of the consideration of whether the presumption of a resulting trust had been rebutted. The statements from Professor Scott’s book were in that part of the book dealing with resulting trusts and the rebuttal of the presumption that the property is held in trust in proportion to the contributions. It should also be emphasised that the High Court found that the proven circumstances concerning the acquisition and subsequent renovation of the relevant property, and the evidence concerning the intentions of the husband and wife, compellingly rebutted the presumption of a resulting trust in accordance with the respective contributions of the husband and wife.

147    The Trustee relied on two other authorities: McMahon v McMahon [1979] VR 239 and Thwaites v Ryan [1984] VR 65. It is unnecessary to discuss McMahon in any detail. It was a decision of a single judge of the Supreme Court of Victoria, Marks J, concerning the removal of a caveat. His Honour summarised some of the principles that he distilled from Allen v Snyder. Those principles have already been addressed.

148    Thwaites was a decision of the Full Court of the Supreme Court of Victoria. The court allowed an appeal from a judgment in which the primary judge had held that property was held in trust on the basis of a common intention. The Trustee relied on the following observations made by Fullagar J (at 92):

It seems to me that the true justification of the marriage cases is that they are cases where the husband during wedlock, de facto or de jure, or in contemplation of that relationship, acquired the property subject to a trust in favour of the wife although the bounds of the trust were set by some agreement express or implied. The real step that the courts took, it can now I think be said, was to find this ultimate fact (the acceptance of the property ab initio subject to the trust) from far less forceful evidentiary facts than had hitherto ever been required, and the thing that justified a course so beneficient [sic], if that be the word, was the relationship of husband and wife. If the property was acquired by the husband “for the purposes of the marriage relationship”, as it were, then the Court would require only very little more in order to find that it was acquired by the husband upon trust for himself and his wife. It is true that much of the ex post facto justification that has been put forward in dicta of the highest authority in England treats the trust which is ultimately enforced as an implied or constructive or resulting trust, but such dicta, if correct, does not in my view ultimately detract from the analysis which appeals to me. Constructive or not, the trust existed as the trustee took the property. To set up the statute would be to steal what was in equity never his.

149    Those observations were undoubtedly obiter dicta, given that the property in question was not a matrimonial home and the parties were not husband and wife. In any event, and with the greatest respect for Fullagar J, it is doubtful that it is correct to say that in cases where a man acquires a property either during or in contemplation of a marriage, a court can or should find that the property was acquired on trust for the man’s spouse on the basis of “less forceful evidentiary facts” than would otherwise be necessary. The correct, or at least preferable approach, in determining whether there was a common intention concerning the manner in which the beneficial interest in a matrimonial property is to be held, is that all the relevant facts and circumstances must be considered. The fact that the relevant property was acquired during or in contemplation of marriage, and was or was intended to be, the matrimonial property, would in most cases be an important and weighty consideration which might point to the existence of such a common intention. Those facts alone, however, are unlikely to be determinative, and in some cases may be outweighed by other evidence concerning the intentions of the parties to the marriage.

150    This brief review of the relevant principles and authorities suggests that the Trustee’s case that Patrick held the Military Road property on trust for him and Georgia in equal shares should be approached having regard to the following propositions.

151    First, the critical question is whether, as contended by the Trustee, the evidence establishes that Patrick and Georgia had a common intention that, while the legal title to the property would be held by Patrick, he would hold the property on trust for him and Georgia as joint tenants in equal shares. That is a question of fact. The intention that the Trustee must prove is an actual intention, not one that is presumed or imputed to the parties by operation of law.

152    Second, the fact that Patrick and Georgia were married when the Military Road property was acquired, and the fact that the property was and was intended to be the matrimonial home, are plainly important facts in determining whether any common intention can and should be inferred. They are not, however, determinative. All of the evidence that might bear upon the intentions of Patrick and Georgia concerning the beneficial ownership of the property must be considered.

153    Third, the amount and nature of any contributions by Georgia towards the acquisition of the property are also important, if not critical, considerations in determining the existence of any common intention. In that regard, and in that context, contributions by a spouse are not limited to direct monetary contributions towards the purchase price. They may include other payments and services referable to the acquisition of the property.

Does the evidence support an inference of common intention?

154    As has already been noted, the Trustee primarily relied on three facts or circumstances as supporting an inference that the common intention of Patrick and Georgia was that Patrick would hold the property on trust for him and Georgia as joint tenants in equal shares. Those three facts or circumstances were: first, the fact that the property was acquired while Patrick and Georgia were married; second, the fact that the property was intended to be the matrimonial home; and third, the fact that Georgia contributed to the purchase price.

155    As for the first matter, there was no dispute that Patrick and Georgia were married at the time the Military Road property was acquired. It should be noted in this context, however, that despite their marriage, Patrick and Georgia continued to have some separate bank accounts and loans. Patrick also owned, and in due course sold, various other properties that were held in his own name. The evidence of Ms Delbridge suggested that Patrick and Georgia attempted to retain some separation of their financial affairs. There was no general pooling of the assets owned by Patrick and Georgia.

156    As for the second matter, it was not in dispute that the Military Road property was, and was at all times intended to be, Patrick and Georgia’s matrimonial home. In that regard, Patrick gave the following evidence during cross-examination:

Q: So, sir, you and your wife lived in the Blake Street property from approximately 2005; is that right?

A: Yes, approximately.

Q: And then you and your wife conducted some renovations of the property that began in about 2010?

A: That’s correct.

Q: And then the renovation[s] concluded sometime in 2011?

A: That’s correct.

Q: And then the property was sold, that Blake Street property?

A: That’s correct.

Q: Okay. And you, your wife and child, I think, lived in a property in New South Head Road after the sale of Blake Street?

A: That’s correct.

Q: Was that just a flat?

A: Yes.

Q: Okay. And then, during that period, after the sale of Blake Street, living in the flat, your wife found the Military Road property that you currently live in; isn’t that right?

A: That’s right.

Q: And she managed to find it for sale even though, I think, it wasn’t listed; isn’t that right?

A: That’s correct.

Q: And she discussed this with you and said, “This would be a good new family home for us”?

A: That’s correct.

157    In re-examination, Patrick gave the following further evidence concerning the intended use of the property:

Q: Mr Williams, you were asked some questions about the acquisition of the Military Road property and you were asked whether it was a property that your wife had identified as a prospective home; do you recall those questions?

A: Yes.

Q: And you were asked whether you agreed that she had said to you something about, “This could be a family home for us”; is that what you recall?

A: Yes.

…

Q: Yes. Did you have any other discussions with your wife about any other ways in which that home or that house might be used in the event that it was acquired by you ---?

A: Yes.

Q: --- in the future? And what do you recall were the terms of that discussion between yourself and your wife, as best you now recollect?

A: It was with my work I – I would be travelling overseas, hopefully, within the next two years and the – the discussion we had was that – put it in my name for a tax deduction.

Q: And why did you expect that it might be useful to have it in your name for a tax deduction if you were travelling overseas? Did you discuss that with your wife?

A: Yes.

Q: And what do you recall were the words that you spoke or she spoke in that discussion?

A: That we would keep the home and we would negatively gear it.

158    One curious aspect of the cross-examination of Patrick was that, despite being asked about the intended use of the property as the matrimonial home, he was not asked any questions about why he alone took the legal title to the property, or what his intentions were in that regard, or whether he had any conversations with Georgia about his and Georgia’s intentions concerning the beneficial interest in the property. It was certainly not suggested to Patrick that he and Georgia made any agreement concerning the beneficial interest in the property, or even discussed that issue. Nor was it put to Patrick that his intention was to hold the property on trust for Georgia. The issue concerning common intention was simply ignored in cross-examination.

159    The evidence given by Patrick in re-examination, however, tended to suggest that a conscious decision was taken by Patrick to acquire the property in his name alone. That decision appears to have been made for tax reasons. There was a possibility that Patrick and Georgia would reside overseas for a period of time. If they did, and the Military Road property was owned by Patrick alone, he could rent it out and take advantage of negative gearing in relation to the rent received. That is not determinative in terms of his and Georgia’s intentions concerning the beneficial ownership of the property, though it is doubtful that Patrick would have achieved the full tax benefit arising from negative gearing if Georgia had a beneficial interest in the property.

160    As for the third matter, contributions toward the purchase price, there was no dispute that the $2.09 million purchase price was paid by Patrick using $500,000 of his own money, together with funds borrowed from a bank. That loan, which was for $1.6 million, was taken out in Patrick’s name alone. The repayments were to be deducted from a bank account in Patrick’s name. There was no suggestion, let alone evidence, that Georgia was liable to, or would contribute to the repayment of the loan. As for the payment of the deposit, Ms Delbridge’s evidence was that the deposit of $209,000 was paid by bank cheque drawn on one of Patrick’s bank accounts. That cheque was dated 4 May 2012. It cleared Patrick’s account on 8 May 2012. The following day, Georgia transferred $209,000 from one of her accounts to the account on which the cheque had been drawn. It does not follow, however, that Georgia paid the deposit.

161    The Trustee submitted that Georgia contributed her share of the net proceeds of sale of the Blake Street property, though he conceded that “some of the proceeds may have been intermingled with the other household funds”. The Trustee made no real attempt, however, to trace any of the proceeds of sale of the Blake Street property into the money used by Patrick to acquire the Military Road property. For the reasons given in detail earlier, the evidence did not support the Trustee’s submission.

162    Patrick was asked virtually no questions in cross-examination concerning contributions towards the acquisition of the Military Road property. Patrick agreed that the purchase price was paid partly in cash and partly by way of funds borrowed by him from the St George Bank. A question concerning the payment of the deposit was objected to and not pressed. No further questions concerning any contributions by Georgia were put to Patrick. It was not suggested to him that he had any other financial arrangements with Georgia relating to the acquisition of the property, or that Georgia indirectly contributed money to towards the purchase, or that Georgia contributed towards the acquisition in some other way, for example by paying other household expenses, or providing services of some sort.

163    The Trustee relied on two other pieces of evidence in support of his contention that Georgia contributed to the acquisition or purchase price of the Military Road property. First, he relied on a letter dated 3 October 2013 from a property adviser, Mr Julien Townsend, addressed to Georgia and Patrick. That letter stated that “your initial objective is to review your existing property investment portfolio with a view to rationalizing[sic] it to enable you to reduce the non-deductible debt against your home”. The letter referred to four properties: one in Edward Street, Bondi Beach owned by Patrick; one in Maroubra owned by Patrick; one in Potts Point owned by Patrick; and one in Ramsgate Avenue, Bondi Beach owned by Georgia. Mr Townsend’s advice was to sell all the properties other than the Potts Point property. As it turns out, Georgia did not sell the Ramsgate Avenue property. It was in due course sold by the Trustee. Patrick was not asked any questions in cross-examination about Mr Townsend’s advice or what, if anything, he did about it. There was evidence that Patrick sold the Edward Street property and the Maroubra property, however there was no evidence or analysis of how the proceeds of those sales were applied.

164    The final piece of evidence relied on by the Trustee was that architectural drawings which were apparently lodged as part of a development application in respect of the Military Road property named Georgia as the client. Patrick was not asked about this development application in cross-examination. There was no evidence that the development application was pursued, or if it was, how it was pursued.

165    The Trustee submitted that Georgia also contributed towards the acquisition of the property “in the form of labour and the payment of other expenses”. It was, however, entirely unclear what “services” Georgia provided. And while there was some very general evidence that Georgia paid some of the family’s general living expenses, the source of the funds used to pay those expenses was unclear. The evidence revealed that Georgia had not worked since 2006, when her and Patrick’s daughter was born, and that she and Patrick had lived off Patrick’s income since that time. The Trustee suggested that Georgia’s rental receipts from the Ramsgate Avenue property were used to pay the joint expenses, but made no attempt to point to any evidence to substantiate that fact.

166    As can readily be seen, the evidence relied on by the Trustee to support an inference of common intention was, to say the very least, scant. As has already been noted, it was of some significance that Georgia and Patrick were married at the time of the acquisition of the Military Road property, and that the property was intended to be the new matrimonial home. It effectively replaced the Blake Street property that had been owned by both Patrick and Georgia as joint tenants. It is clear, however, that a conscious decision was taken that Patrick alone would purchase the Military Road property. He used his own funds, together with funds borrowed by him alone. He alone was named as the purchaser in the contract, and he alone took the legal title. There is no evidence of any agreement or discussions between Patrick and Georgia relating to the beneficial interest in the property. Patrick was not asked any questions in cross-examination concerning that issue.

167    The evidence that Georgia contributed to the acquisition of the property in any material way was particularly thin. The high point was the evidence concerning the payment of the deposit. Even that evidence was inconclusive. It indicated that the deposit was paid by bank cheque drawn on one of Patrick’s accounts but that subsequently, funds equivalent to the amount of the deposit were transferred from one of Georgia’s accounts to Patrick’s account. The Trustee’s submission that Georgia contributed by providing services and paying family expenses rose no higher than bare assertion. It is also of some considerable significance that Patrick was barely asked any questions in cross-examination that bore on the question of contributions to the acquisition of the property.

168    The Trustee bore the onus of proving that it was the common intention of Patrick and Georgia that, while the Military Road property would be legally owned by Patrick, he would hold it on trust for him and Georgia in equal shares. For the reasons that have been given, I am not satisfied that he has discharged that onus. The evidence does not support the existence of any such common intention. It follows that the Trustee’s contention that Patrick held the Military Road property on trust for Georgia must be rejected.

Was the alleged trust properly pleaded?

169    In light of the finding just made, it is strictly unnecessary to resolve this point. Nevertheless, in the event that the Trustee appeals this judgment, it is prudent to address it.

170    The relevant paragraphs of the Amended Statement of Claim are set out earlier in these reasons. It can be seen that the pleading simply asserts that upon acquiring the Military Road property, Patrick held one half of his interest in the property on trust for Georgia. It does not articulate the nature of that trust, or how or why it arose. Perhaps most significantly, nowhere in the pleading does the Trustee set out the material facts which support the allegation that the property was held on trust. Nowhere in the pleading is it alleged that Patrick and Georgia had a common intention that the property be held on trust. Nowhere in the pleading is it alleged that Georgia contributed to the purchase price or acquisition of the property, though it is stated (in [12]) that Georgia “has contributed to increasing the value of the house … by supervising and managing the renovation of it”. No particulars of that allegation were provided. In any event, ultimately no evidence was led in relation to it.

171    When, in the course of the hearing, a complaint was raised about the absence of any proper pleading in relation to the alleged trust, the response provided on the Trustee’s behalf was that no particulars had been sought in relation to the allegation. That is not a proper answer to the plain deficiency in the pleading. Rule 16.02(1)(d) of the Federal Court Rules 2011 (Cth) provides that a pleading must “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial …”. It could not seriously be contended that the Trustee’s pleading complied with that rule in relation to the allegation that Patrick held the Military Road property on trust for Georgia. None of the material facts ultimately relied on by the Trustee in support of that allegation were included in the pleading. It was not incumbent on Patrick to request particulars of that allegation in those circumstances.

172    The question of what flows from the deficiency in the pleadings concerning the trust allegation is more difficult. When complaint was made about the pleading, in the context of an objection to a question asked of Patrick in cross-examination, Patrick’s counsel asserted, in effect, that Patrick was prejudiced by the deficiency. Specifically, it was asserted that his case had not been prepared on the basis that the Trustee alleged that Georgia had contributed to the purchase price of the Military Road property and that, if that was to be alleged, Patrick would want to adduce further evidence in relation to that issue. Ultimately, the question that was objected to was not pressed. Patrick did not apply to adduce any further evidence, and eventually detailed submissions were made on his behalf in relation to the issue of contribution and the Trustee’s case in relation to the alleged trust generally. In those circumstances, the issue concerning contribution, and the other elements of the Trustee’s case concerning the alleged trust, were clearly “in play”: Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [59]. While the Trustee’s pleading concerning the alleged trust was plainly deficient, that does not provide a separate basis to dismiss this aspect of his case. There was no real or operate unfairness in the way the case was ultimately conducted.

Conclusion and disposition

173    The Trustee has not made out any of the three claims that were pressed by him. He failed to prove that the transfers to Patrick totalling $300,000 that were made on 13 June 2014 were transfers of property in respect of which Patrick gave no consideration. While he proved that the proceeds of sale of the Blake Street property paid into Patrick’s bank account were at that time held on trust for Georgia, he failed to demonstrate why he was entitled to an order that Patrick pay him an amount representing half of the proceeds. That was because the evidence showed that the funds in Patrick’s account had been dissipated and that roughly half had been transferred to Georgia in any event. No attempt was made to trace the funds into any identifiable property or fund held by Patrick at the time Georgia was made bankrupt. Finally, the Trustee failed to prove that Patrick held the Military Road property on trust for Georgia on the basis of an inferred common intention.

174    It follows that the Trustee’s application must be dismissed with costs.

Associate:

Dated:    2 March 2018