FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Bosanac (No 7) [2021] FCA 249

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the second respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    In this proceeding the applicant (the Commissioner) seeks a declaration broadly to the effect that the first respondent (Mr Bosanac) has an equitable interest to the extent of 50% of the available equity in a residential property in Dalkeith, Western Australia (the Dalkeith Property). I say ‘broadly’ as there has been much debate about the precise wording of the declaration, a topic visited shortly in these reasons. The second respondent (Ms Bosanac) is the sole registered proprietor of the Dalkeith Property. On 29 April 2016, the Court entered summary judgment against Mr Bosanac in the sum of $9,344,111.89 plus costs: Commissioner of Taxation v Bosanac [2016] FCA 448. On 12 August 2016, execution of the judgment was stayed until further order: Commissioner of Taxation v Bosanac (No 2) [2016] FCA 945. The stay was lifted on 17 December 2019, with effect from 29 August 2019 (Commissioner of Taxation v Bosanac (No 5) [2019] FCA 2126), and the declaration is now sought to facilitate recovery of part of the judgment sum by the Commissioner.

2    The central question is whether on the facts of this case a ‘presumption’ of advancement displaces a presumption of a resulting trust and whether the operation of either presumption is rebutted by evidence of a contrary intention. What is significant is that it is the Commissioner, not Mr Bosanac who is contending for the relief sought. Even though the Bosanacs are separated and resolving their affairs through Family Court proceedings, Mr Bosanac has not sought to assert a resulting trust and has not opposed the contentions advanced for Ms Bosanac in favour of the legal status quo which also accords with a ‘presumption’ of advancement. Mr Bosanac appeared by counsel on this contested application but did not make submissions.

THE APPLICATION TO AMEND

3    By an amended originating application filed on 10 January 2020, the Commissioner sought the following relief at para 3:

A declaration that [Mr Bosanac] has an equitable interest to the extent of 50% of the available equity in the … Dalkeith [Property], more particularly described in certificate of title volume ...

4    Just minutes before the commencement of the hearing of the amended application for final relief, the Commissioner circulated a minute of proposed orders containing a differently worded declaration regarding the Dalkeith Property. During the hearing, counsel for Ms Bosanac made two preliminary and interrelated submissions concerning the Commissioner’s forms of orders. The first was that the declaration as worded in the amended originating application lacked sufficient clarity to allow rights to be enforced or the nature of the declaration to be understood, such that the Court would not make a declaration in those terms. The second was that if the Commissioner now sought a different declaration as expressed in his minute of orders, this could not be done absent a formal application, and further that the Court should not entertain any application to amend the relief sought midway through the final hearing.

5    In response, the Commissioner applied at the hearing to amend para 3 of the amended originating application to seek a declaration in the following terms (which differ slightly from the declaration sought in the minute):

[Ms Bosanac] holds 50 per cent of her interest in the [Dalkeith Property], Western Australia, more particularly described in certificate of title volume …, on trust for [Mr Bosanac].

(Emphasis added.)

Ms Bosanac firmly opposed the application to amend. I gave leave to the parties to file submissions for and against the proposed amendment after the hearing of the matter.

6    The Commissioner argues that the proposed amendment is necessary and desirable to facilitate the just resolution of the dispute, consistent with the overarching purpose reflected in s 37M of the Federal Court of Australia Act 1976 (Cth). Moreover, he says that in circumstances where the substantive issue raised by the proposed declaration appears to have been fully understood by Mr and Ms Bosanac at all relevant times, and has now been fully argued, no question of prejudice can be said to arise.

7    The Dalkeith Property is registered solely in the name of Ms Bosanac but is subject to a first registered mortgage in favour of Westpac Banking Corporation. The Commissioner says that any declaration should be framed so as not to affect the interests of Westpac. Subject to the outcome of these proceedings, Ms Bosanac has what would have been described as an ‘equity of redemption’ had the land been general law land: Windella (NSW) Pty Ltd v Hughes (1999) 49 NSWLR 158 (at [21]). Under the Torrens system, the legal estate in fee simple remains vested in Ms Bosanac as registered proprietor (Abigail v Lapin [1934] AC 491 at 501), subject to the ‘statutory charge’ created by the registered mortgage: English, Scottish & Australian Bank Ltd v Phillips (1937) 57 CLR 302 (at 321). The resulting trust contended for arose, the Commissioner argues, when the Dalkeith Property was purchased.

8    The current formulation of the declaration (as set out in the amended originating application) was first reflected in a minute filed as part of an interlocutory application filed by the Commissioner on 12 August 2016, seeking to introduce a claim for declaratory relief relating to the Dalkeith Property. The interlocutory application was opposed by Mr and Ms Bosanac. Both were then legally represented. No issue was taken with the formulation of the proposed relief at any other time prior to the final hearing of the application for declaratory relief. On 26 October 2016, leave was granted to the Commissioner to amend the originating application to seek the declaratory relief which now appears in the amended originating application and set out above (at [3]). However, due to the protracted procedural history of this matter, which involved a stay of the judgment entered against Mr Bosanac while he pursued his rights under Pt IVC of the Taxation Administration Act 1953 (Cth), the originating application was not formally amended to include the declaratory relief until 10 January 2020. By reference to this procedural history, the Commissioner’s main point appears to be that both respondents have been on notice as to the nature of the declaratory relief sought against them since October 2016, with no objections to the form of relief being raised at any earlier time.

9    The Commissioner contends that the amended wording addresses the objections raised by Ms Bosanac at the hearing. He argues that no prejudice can be said to arise should para 3 be amended accordingly. That is so because since at least October 2016 ‘neither respondent appears to have been under any illusion as to the substance and effect of the relief proposed’ by the Commissioner.

10    Nor, the Commissioner argues, has the Court been under any misapprehension. In Commissioner of Taxation v Bosanac (No 6) [2020] FCA 339 (at [2]), the Commissioner’s application was described as one ‘for a declaration that Ms Bosanac holds a one half interest in Property in Dalkeith, Western Australia on resulting trust for Mr Bosanac’. (This summary, I observe, says nothing as to whether the relief sought was likely to be granted for any reason.)

11    Ms Bosanac has been unrepresented in these proceedings since 2 April 2020. Following a referral from the Court, pro bono counsel were engaged on 26 June 2020, less than two weeks before the final hearing. This context goes a considerable way to explaining why issue was not taken with the form of declaratory relief at an earlier time. In any event, Ms Bosanac submits that this is irrelevant where the Court must be satisfied that the declaration is a proper order to make in the exercise of its discretion. It is asserted that the Commissioner has confused his obligation to seek relief in terms that the Court can make, with Ms Bosanac’s right to resist the case that is actually (as opposed to theoretically) brought against her. Her status as a personal litigant is also said to be relevant. As Lord Griffiths observed in Ketteman v Hansel Properties Ltd [1987] 1 AC 189 (at 220), adopted in Ting, H. & Anor v. Blanche, S. & Anor [1993] FCA 781 (at [40]):

Justice cannot always be measured in terms of money … a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore, to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.

12    Ms Bosanac says that the proposed amendment is substantive and represents a material change to the relief sought in three respects. First, the interest sought to be declared is now a proprietary interest, whereas before it was unclear whether the interest was proprietary or personal; second, this proprietary interest now affixes over 50% of Ms Bosanac’s legal estate (as opposed to merely the ‘available equity’); third, and consequentially, the declaration could now support a power of sale over Ms Bosanac’s primary residence where she lives with her two children.

13    As noted, the Dalkeith Property is encumbered by a first registered mortgage in favour of Westpac. Ms Bosanac contends that the declaration now sought affects Westpac’s interests as it would declare a proprietary interest in land. Where a court is invited to make orders directly affecting proprietary rights or liabilities of a non-party, the non-party is usually a necessary party and ought to be joined: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2009) 241 CLR 1 (at [131]). As held by the Full Court of the Federal Court in News Ltd v Australia Rugby Football League (1996) 64 FCR 410 per Lockhart, Von Doussa and Sackville JJ (at 524-525):

where orders sought establish or recognise a proprietary or security interest in the land… all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest.

14    No joinder has been sought. Nor would now be the appropriate time to join a party.

15    Ms Bosanac argues that there is no evidence before the Court on which it could be confident that the threat to Westpac’s security interest is illusory. The Court would not make a declaration without hearing from all affected parties, it is argued, because Westpac would have an inevitable right to apply for discharge.

16    Ms Bosanac notes as well that the application is unjustified by changed circumstances or new facts. Rather, on the heel of the hunt, the Commissioner has ‘abandoned’ his prior claim for declaratory relief and sought to substitute it. She observes that the Commissioner is a sophisticated litigant and has been represented throughout by experienced solicitors and very experienced senior and junior counsel. The issue raised by Ms Bosanac (that the earlier form of relief was not a form of relief that a court would properly grant) is a matter that must have been known to the Commissioner throughout. In those circumstances, Ms Bosanac relies on the following Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 factors which are said to weigh against a grant of leave to amend:

(a)    the application is procedurally defective, in that there is no proposed further amended originating application;

(b)    no affidavit has been proffered to explain the reason for the lengthy delay;

(c)    a final hearing in the matter has been held, and evidence and submissions have closed;

(d)    the potential loss of public confidence where a court is seen to accede to applications made without adequate explanation or justification: Aon (at [5], [24] and [30]);

(e)    the prejudice that might be assumed to follow from the amendment and that which is shown: Aon (at [5], [100] and [102]); and

(f)    the parties’ choices to date in the litigation and the consequences of those choices: Aon (at [112]).

17    Generally speaking, an applicant must provide an explanation for any delay before the court will exercise its discretion to allow an amendment: Aon (at [103]); Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu [2016] FCAFC 2 (at [125]). The explanation must be ‘satisfactory’: Kelly v Mina [2014] NSWCA 9 (at [47]); Nambery Craft Pty Ltd v Watson [2011] VSC 136 (at [38]).

18    For the following short reasons, I consider the application to amend should be allowed. I do not believe that Ms Bosanac misapprehended the case against her, nor has she identified anything that she might have done differently had leave to amend been sought earlier. Furthermore, as submitted by the Commissioner, the force and effect of the declaration sought has been understood by all parties, including the Court, to be that which is encapsulated in the amended wording since at least October 2016.

19    It is true that the delay has not been fully explained but I infer from the history outlined above that it is simply a process of refinement as a result of exchanged arguments. That background affords at least some explanation. However, in circumstances where neither prejudice nor an adverse effect to the conduct of the proceedings has been occasioned, any lack of, or deficiency in, explanation for delay is, ordinarily, hardly likely to be decisive.

20    Similarly, it is not possible to identify prejudice to Westpac. On the proposed wording, Ms Bosanac would simply hold half of her interest on resulting trust. That whole interest is already subject to a mortgage in favour of Westpac. Hence, a declaration to the effect that part of Ms Bosanac’s interest is held on trust for Mr Bosanac (a joint borrower under the loan arrangements secured by the mortgage) could cause no detriment to the mortgagee. No consequential order for sale is presently sought. Westpac is not a necessary party. It would be if an order for sale were sought.

21    This conclusion is also supported by r 8.21(1)(a) of the Federal Court Rules 2011 (Cth) which provides as follows:

8.21    Amendment generally

(1)    An applicant may apply to the Court for leave to amend an originating application for any reason, including:

(a)    to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding;

…

22    While it may be accepted that the original wording of the Commissioner’s declaration was defective, in circumstances where all parties have effectively understood the true nature of the relief sought in terms of the amended wording (or similar) it is appropriate to allow the amendment.

EVIDENCE

23    In the substantive application, the Commissioner relies on two affidavits of Yi Deng, an officer in the Australian Taxation Office’s (ATO) debt division. Those affidavits establish the foundational material from which the core facts underpinning the Commissioner’s case are established.

24    Ms Bosanac has filed two affidavits over the course of this litigation. The first was filed in February this year and read in support of Ms Bosanac’s application for cross-vesting to the Family Court of Western Australia (the February Affidavit): see Bosanac (No 6) in which I refused the application. The second affidavit was filed in May this year in opposition to the Commissioner’s present application for final relief (the May Affidavit). The May Affidavit was filed by Ms Bosanac when she was unrepresented. At the hearing, Ms Bosanac’s counsel indicated that neither affidavit would be read in opposition to the Commissioner’s case.

25    The Commissioner sought to tender specific parts of each affidavit as admissions of the fact that the Dalkeith Property was the matrimonial home (the significance of which will become apparent later in these reasons). Ms Bosanac objected to the tenders on the ground of exclusion by the hearsay rule or alternatively, that the tender of specific sentences and words from the affidavits occasioned an unfair prejudice to her such that the Court should exercise its discretion to refuse to admit the evidence under s 135 of the Evidence Act 1995 (Cth).

26    I gave a preliminary indication that I would reject the tender of the May Affidavit and reserve my ruling on the February Affidavit. In those circumstances, I directed the Commissioner to address why his case gives rise to the inference that the Dalkeith Property is the matrimonial home. It should be noted, however, that the crux of the substantive dispute in this case concerns an interpretation of the relevant case law, not a contest over the facts and, in any event, I consider they are sufficiently made out on the Commissioner’s own evidence and the case as it was put. Nonetheless, I indicated at the hearing that I would rule on the minor evidentiary issue, giving reasons together with judgment on the substantive issues.

27    In Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314, Rares J considered the meaning of ‘proceeding’ in the context of its use in the definition of ‘previous representation’, being a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. In Hoy Mobile, the respondent was seeking to resist the tender of an affidavit filed and relied upon at a previous interlocutory stage and his Honour said (at [20]):

That, however, is only the beginning of the consideration of the question of admissibility. Allphones argued that Mr Lloyd’s evidence cannot be a “previous representation” within the meaning of that term in the Evidence Act because it was made in the course of giving evidence in the proceedings in which evidence of the representation was sought to be adduced. That is, Allphones argued that the evidence now tendered at this trial had already been given in evidence “in the proceedings” when it was read during the interlocutory proceeding heard by Tamberlin J. Counsels and my own researches have not been able to uncover any authority on the meaning of “previous representation” in respect of representations made during earlier stage of a matter filed in a court which are later sought to be used as a “previous representation” in the same matter.

28    His Honour then ruled (at [27]) that:

I am of opinion that the proper construction of the definition of “previous representation” in the Act requires that the expression ‘in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced’ be treated as a reference to the hearing before the judge, as defined, in which the evidence is sought to be adduced. It does not extend to other hearings or phases, including any interlocutory proceeding, in which the parties have been engaged prior to that hearing. Of course, if a matter is part heard, on the resumption of hearing it is the same proceeding for the purposes of the definition of ‘previous representation’. But where one can readily segregate the interlocutory or other phases of a matter from the trial, proceeding or phase in which the evidence is sought to be adduced, I am of opinion that a representation made before the current hearing is capable of being a previous representation within the meaning of that term in the Act.

29    On the basis of this reasoning which I have previously followed, my preliminary indication to the parties was that, consistently with Hoy Mobile, the parts of the February Affidavit could be relied upon as admissions, while the parts of the May Affidavit could not be treated as admissions because a previous representation cannot come from a statement or document filed in the same proceeding in which it is sought to be adduced.

30    However, the Commissioner drew my attention to two authorities which he submits demonstrate that the tenders from both the February and May Affidavits should be admitted. The first was Wimpole v McIlwraith [1923] VLR 553. The case responds to Ms Bosanac’s s 135 objection, standing for the proposition that, although a party can tender selective parts of the other party’s affidavit, the other party cannot be prevented from referring to additional parts of the affidavit to the extent that they qualify, or affect the tendered admissions (at 555).

31    The second was Re Vassis; Ex parte Leung (1986) 9 FCR 518 in which Burchett J ruled (at [520]) that an affidavit filed, but not read at trial, could be tendered as an admission by the opposing party:

The first problem in this matter arose during the petitioning creditor’s case. His counsel tendered certain paragraphs of an affidavit sworn by the respondent and filed on his behalf. It was objected that, a party not being bound to read his affidavit, this tender should be regarded as an indirect subversion of the respondent’s right to withhold it, and not permitted. I ruled against the objection, and allowed the tender of the paragraphs as admissions. In the event, the respondent was thereafter called to give evidence in his own case. I allowed the tender upon the basis of authorities which are conveniently collected in [1985] Australian Current Law at p 36055, stemming from Price v Hayman [1838)4 M & W 8; 150 ER 1321. Those cases (and especially Wimpole v McIlwraith [1923] VLR 553) establish, in my opinion, that a statement by a party in an affidavit filed by him may be tendered by the opposing party as an admission, though the tenderer cannot prevent reference to other statements in the affidavit providing a qualifying context. They also support the use in other ways of affidavits not filed by the party seeking to rely on them, but it is unnecessary for present purposes to examine the limits of the rules applicable in this situation: in my view they at least justify the petitioning creditor’s tender in the present case.

32    Although this ruling was based on the common law, I do not consider this ruling would be affected by the content of the Evidence Act. Although the hearsay rule is well known, it is convenient to set out its terms in s 59(1) of the Evidence Act:

59    The hearsay rule—exclusion of hearsay evidence

(1)    Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

…

33    The dictionary to the Evidence Act defines a ‘previous representation’ as:

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

It also defines an admission as:

admission means a previous representation that is:

(a)    made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

 (b)    adverse to the person’s interest in the outcome of the proceeding.

The dictionary also provides (at Pt 2 cl 6) for representations made in documents as follows:

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if:

 (a)    The document was written, made or otherwise produced by the person;

(b)    The representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

34    For completeness, s 81(1) of the Evidence Act provides that:

81    Hearsay and opinion rules: exception for admissions and related representations

(1)    The hearsay rule and the opinion rule do not apply to evidence of an admission.

…

35    Both the operation of the hearsay rule and the definition of an ‘admission’ are predicated on the existence of a ‘previous representation’. If a representation is made ‘in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced’, then that representation is not a previous representation. It therefore cannot be an admission as that term is defined in the Evidence Act. However, the contents of an affidavit is not evidence adduced in the Court until such time as it has been formally read. That is, the ‘giving’ of the evidence occurs not at the time of swearing or affirming the affidavit, but at the time of being ‘read’ at the hearing of the proceeding, being in this case the hearing of the final relief and not any previous interlocutory stage. Until that time, it remains a previous representation subject both to the hearsay rule and the exception to that rule in the case of admissions.

36    Having now revisited this issue and considered it again with the benefit of the additional authorities cited by the Commissioner, I am of the view that an affidavit filed but not read in the same proceeding in which its tender is sought is still a ‘previous representation’ such that the hearsay rule, and the exception to that rule in the case of admissions applies.

37    I would therefore allow the tender of such parts of both the February and May Affidavits that constitute admissions by Ms Bosanac. This debate is somewhat academic in this case. The fact of the Dalkeith Property being the matrimonial home is not seriously in dispute. Even without the tendered statements, on the Commissioner’s own evidence and the way that both parties put their cases, the fact of the Dalkeith Property being the matrimonial home is well established. There is one further aspect of the May Affidavit in relation to ‘Rocket Loans’ secured by the Dalkeith Property that were obtained after the purchase of the property – this will be addressed later in these reasons and I allow the tender of para 12 of the May Affidavit.

THE CORE UNDISPUTED FACTS

38    The Commissioner’s affidavits establish the core facts. They are that Mr and Ms Bosanac were married on 3 October 1998. They separated in 2012 or 2013, however, they continued to live together until about mid-2015 and did not divorce at that time. On 27 April 2006, Ms Bosanac offered to purchase the Dalkeith Property from Badenport Constructions (WA) Pty Ltd for $4,500,000, subject to her obtaining approval for a loan of $3,000,000 from Westpac. The offer to purchase was accepted on 3 May 2006. The sale contract formed by that acceptance required Ms Bosanac to pay a deposit of $250,000 within 30 days (by 2 June 2006).

39    On 2 June 2006, $250,000 was withdrawn from a pre-existing joint loan account in the names of Mr and Ms Bosanac. I infer that the withdrawal was the deposit owed in accordance with the sale contract for the Dalkeith Property.

40    On 24 October 2006, Mr and Ms Bosanac applied for two new joint loans from Westpac in the amounts of $3,500,000 and $1,000,000 (a total of $4,500,000) (together, the October 2006 Loans). Westpac offered the October 2006 Loans to Mr and Ms Bosanac on or around 24 October 2006.

41    The $1,000,000 loan was accepted by Mr and Ms Bosanac, by signature, on 24 October 2006 (the day of the loan applications). There is no acceptance page in evidence for the $3,500,000 loan. However I infer, and it was not disputed, that the terms of that loan were accepted at some time between 24 October 2006 and 2 November 2006, a sum of $3,500,000 having been drawn down on the latter date from a home loan account established in the joint names of Mr and Ms Bosanac. The Booklet of Standard Terms and Conditions version ‘wpac.026’ was incorporated into the October 2006 Loans. Those terms and conditions included the following:

(a)    ‘You’ means the person or legal entity to whom the Letter is addressed. Where there is more than one of you, each of you is individually liable for the full amount (cll 13 and 29); and

(b)    ‘Letter’ means the letter entitled Loan Offer (cl 29).

42    The securities required for the October 2006 Loans were mortgages over the Dalkeith Property and other properties (suburbs omitted) as follows:

(a)    an existing mortgage over 10/41-43 Mount Street (10 Mount Street);

(b)    a new mortgage over 11/41-43 Mount Street (11 Mount Street);

(c)    an existing mortgage over 8/10 Hardy Street (Hardy Street Property)

43    At the time of the loan applications, Mr and Ms Bosanac were living at 10 Mount Street.

44    As will become apparent below, the evidence does not disclose the precise ownership of these other properties. Only the certificate of title for the Dalkeith Property is in evidence which records Ms Bosanac as the sole registered proprietor.

45    In their loan applications, Mr and Ms Bosanac had estimated the property at 11 Mount Street to be worth $1.

46    The stated purpose or predominant purpose of each Loan was ‘Purchase of Established Dwelling’. However, the Dalkeith Property was the only property purchased after Mr and Ms Bosanac applied for the October 2006 Loans, the other properties having already been purchased in or before February 2006. I infer that the purpose (or predominant purpose) of the October 2006 Loans was to purchase the Dalkeith Property.

47    A settlement statement for the sale contract dated 1 November 2006 stated Ms Bosanac was required to pay $4,252,948.38 at settlement.

48    Two amounts totalling $4,500,000 were drawn down on 2 November 2006 ($3,500,000) and 3 November 2006 ($1,000,000), respectively, from home loan accounts held jointly in the names of Mr and Ms Bosanac. I infer these withdrawals were advances of the October 2006 Loans.

49    On 3 November 2006, the Dalkeith Property was transferred into the name of Ms Bosanac as sole registered proprietor. On the same day, Westpac sent a letter to Mr Bosanac confirming a joint loan account in the amount of $3,500,000 had been opened. The letter confirmed that amount, plus $998,570 in ‘Customer’s Contribution’, were applied towards the settlement. I infer the Customer’s Contribution was the $1,000,000 joint loan minus some fees.

50    According to the Westpac letter, a ‘surplus’ of $243,650.12 was paid into account ‘736011 635863’ (being a joint transaction account of Mr and Ms Bosanac).

51    The account statements for this account show the transfer was made on 2 November 2006 but reversed on 3 November 2006.

52    On the same day, a deposit in the sum of $243,650.12 was made into another joint loan account of Mr and Ms Bosanac (being the same account from which the deposit for the purchase of the Dalkeith Property had been withdrawn on 2 June 2006).

53    A mortgage was registered over the Dalkeith Property on 21 November 2006 incorporating the memorandum of common provisions ‘H232954’.

54    That memorandum included the following terms:

(a)    ‘You’ means the mortgagor described on the mortgage (section A);

(b)    ‘Secured Arrangement’ means any document, agreement or arrangement now or in the future to which you and the Lender are or become a party or under which obligations arise from you to the Lender (section A); and

(c)    You promise to pay all money which you owe the Lender under the Secured Arrangements now or in the future, alone or with others (section B1).

55    Mr and Ms Bosanac moved into the Dalkeith Property in late 2006.

56    The ATO records show that Mr and Ms Bosanac resided at the Dalkeith Property together until 9 September 2015 when Mr Bosanac provided a new residential address. He has never made any claim for any interest in the property or adduced any evidence with regard to its ownership vis a vis Ms Bosanac. Ms Bosanac remains the sole registered proprietor of the Dalkeith Property.

57    During the marriage, Mr and Ms Bosanac appear to have kept their substantial assets in separate names, although the Commissioner challenges the evidentiary basis of this fact in terms of inferences that can or should be drawn. In any event, it can safely be said this does not appear to be an instance of a husband and wife sharing all of the matrimonial assets jointly, or pooling their shareholdings for example, even though the Commissioner does note that some bank accounts were shared.

58    No suggestion has been raised that the Dalkeith Property was registered in the name of Ms Bosanac with a view to Mr Bosanac avoiding meeting commitments to creditors with equity in that property.

THE ISSUES

59    It is not in dispute that Ms Bosanac has been, and remains the sole registered proprietor of the Dalkeith Property.

60    It is also not in dispute that both she and Mr Bosanac each contributed half of the purchase price by taking out loans to finance the purchase in their joint names.

61    Where parties are joint borrowers, the application of the advance towards the purchase price should be treated as being a contribution to the purchase of the property made by them equally: Murtagh v Murtagh [2013] NSWSC 926 (at [75]); Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 per Mason and Brennan JJ (at 257-258), and Deane J (267-268). The deposit for the purchase of the Dalkeith Property was drawn from a loan account in the joint names of Mr and Ms Bosanac; the balance of the purchase price was also paid from two loan accounts in their joint names and after settlement, the surplus from these two loan accounts was paid into the loan account from which the deposit was drawn. Accordingly, Mr and Ms Bosanac contributed equally to the purchase price for the Dalkeith Property. However, despite his contribution, Mr Bosanac did not become a registered proprietor.

62    A resulting trust may be presumed in instances where the legal title that vests in one or more of the parties does not reflect the respective contributions of the parties to the purchase price. Relevantly in this case, a trust is presumed to have been declared where a person who provides money to purchase property is not vested with the legal title to that property: Dyer v Dyer (1788) 2 Cox 92, 93; 30 ER 42 per Eyre LCB (at 43); Anderson v McPherson (No 2) [2012] WASC 19 per Edelman J (at [103]-[108]). See also Napier v Public Trustee (WA) (1980) 32 ALR 153 per Aickin J (at 156 and the authorities cited therein), with whom the Court agreed (at 154, 155 and 160); Calverley per Gibbs CJ (at 246-247), Mason and Brennan JJ (at 255-258) and Deane J (at 266).

63    A presumption of resulting trust, applies in various circumstances including where:

(a)    a person purchases property in the name of another, or in their name and that of another jointly, but the other person contributes none of the purchase money: Calverley per Gibbs CJ (at 246), Mason and Brennan JJ (at 255-256) and Deane J (at 266);

(b)    purchase money is contributed by two or more persons jointly but the property is put into the name of one only: Calverley per Gibbs CJ (at 246) and Mason and Brennan JJ (at 258). See also Delehunt v Carmody (1986) 161 CLR 464 per Gibbs CJ (at 472) (Wilson, Brennan, Deane and Dawson JJ agreeing); and

(c)    purchase money is contributed by two persons in unequal shares but the property is purchased in their joint names: Calverley per Gibbs CJ (at 246-247), Mason and Brennan JJ (at 258), and Deane J (at 267).

64    A resulting trust arises in these circumstances because it is presumed that the purchaser did not intend to gift their contribution to the other person, absent evidence of a contrary intention. This general rule is subject to an exception that arises when the parties stand in certain relationships to each other, such that it is instead presumed that the purchaser’s contribution was intended as an advancement or gift to the other party. This ‘presumption’ of advancement arises where a husband makes a purchase in the name of his wife, or as here, makes a contribution to the purchase price but does not take legal title that reflects that contribution: Martin v Martin (1956) 110 CLR 297 (at 298 and 303); Allen v Snyder (1977) 2 NSWLR 685 per Glass JA (at 690A); Calverley per Gibbs CJ (at 247), and Deane J (at 267); Napier per Aickin J (at 158); Nelson v Nelson (1995) 184 CLR 538 per Deane and Gummow JJ (at 547); Anderson (at [139]-[153]) .

65    Although it is referred to almost universally as a ‘presumption’ of advancement, the dominant approach in Australia is that it is not strictly a presumption. It is rather a description of certain circumstances, being the existence of particular relationships, in which the presumption of a resulting trust does not arise: Martin (at 303-304), Hepworth v Hepworth (1963) 110 CLR 309 per Windeyer J (at 317), Pettitt v Pettitt [1970] AC 777 per Lord Upjohn (at 814), Anderson (at [134]-[138]), Nelson per Deane and Gummow JJ (at 547), Dawson J (at 576), and Toohey J (at 584), Calverley per Gibbs CJ (at 247), Mason and Brennan JJ (at 256) and Murphy J (at 265). Deane J succinctly expressed the position in Calverley (at 267) as follows:

…

The third “presumption”, usually called the “presumption of advancement”, is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that any benefit which was provided for one party at the cost of the other has been so provided by way of “advancement” with the result that the prima facie position remains that the equitable interest is presumed to follow the legal estate and to be at home with the legal title or, in the words of Dixon C.J., McTiernan, Fullagar and Windeyer JJ. in Martin v. Martin, that there is an “absence of any reason for assuming that a trust arose”. “The child or wife has the legal title. The fact of his being a child or wife of the purchaser prevents any equitable presumption from arising”.

(Emphasis added, citations omitted.)

66    In these reasons, I will refer to the ‘presumption’ of advancement in inverted commas to recognise the imprecision with which the word ‘presumption’ describes the exact nature of the concept. It is by no means intended to call into doubt its operation or validity, only to acknowledge the somewhat misleading use of the term ‘presumption’.

67    The ‘presumption’ of advancement and the presumption of a resulting trust can both be rebutted by evidence concerning the actual intention of the person who provided the purchase money at the time of the purchase: see for instance Wirth v Wirth (1956) 98 CLR 228 per McTiernan J (at 240-241); Calverley per Gibbs CJ (at 251), and Deane J (at 269); Napier per Gibbs CJ (at 154-155); Nelson per Deane and Gummow JJ (at 547) and Toohey J (at 586). As explained by Ford and Lee in Principles of the Law of Trusts (Thomson Lawbook Co) at [21-534] (update 181):

… the characterisation of advancement as a presumption underlines the point that evidence can be adduced to show that a transfer, or purchase of property in another’s name, was made with no donative intent even though transfers and purchases made within that relationship would ordinarily be assumed to be gifts.

68    At the heart of this dispute is a doctrinal question as to whether the ‘presumption’ of advancement can still be raised by a wife in relation to the matrimonial home. If it does arise, there is then a question as to the inferences that can or should be drawn from the surrounding circumstances in this instance, as to Mr Bosanac’s intention at the time of the purchase of the Dalkeith Property.

69    The case is somewhat unusual in that only the Commissioner, a third party creditor seeking to recover a judgment debt against Mr Bosanac, has argued for the ‘presumption’ and adduced evidence in support in the proceeding. There is a dearth of evidence as to any intention on the part of Mr Bosanac beyond that which can be inferred from the core facts set out above which in themselves invite consideration of either of the competing presumptions.

THE COMMISSIONER’S CONTENTIONS

70    The Commissioner argues that the ‘presumption’ of advancement does not arise on the present facts or is, in any event, rebutted. These closely related yet alternate contentions both rely on the fact that the Dalkeith Property was the matrimonial home such that the proper inference is that it was intended that each spouse would hold a one-half interest in the Property. It is thus submitted ‘that the presumption of a resulting trust arises with the effect that Ms Bosanac holds a one-half interest in the Dalkeith Property on trust for Mr Bosanac’.

71    The Commissioner relies principally on what he says is a unanimous acceptance of this proposition by the High Court in Trustees of Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278 (at [71]). Much of the argument in this matter focussed on the proper interpretation of this statement by the High Court and it is useful to set out both [71] and [72] in full:

71    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 labor 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.”

(Emphasis added, footnote omitted.)

72    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.

(Citations omitted.)

72    Following Cummins, the Commissioner says that an inference that a husband does not intend to gift his contribution to the purchase price of the property may be supported, in the absence of any evidence to the contrary, simply by the fact that the property acquired was the matrimonial home. He says that Cummins therefore qualifies the ‘presumption’ of advancement and says that the qualification can be characterised either as an exception to the circumstances in which the ‘presumption’ of advancement applies or, quite simply, the circumstances from which it may be inferred that the ‘presumption’ of advancement is rebutted. These alternate characterisations are not without their conceptual differences however more will be said on this below.

73    Reliance is also placed on the reasoning of Lord Upjohn in Pettitt (at 815) as quoted by Mason and Brennan JJ in Calverley (at 259-260):

This is the basic presumption [of a resulting trust], though it may be displaced in appropriate cases by the presumption of advancement or, perhaps, qualified by an inference of the kind espoused by Lord Upjohn in Pettitt. His Lordship said:

“... where both spouses contribute to the acquisition of a property, then my own view (of course in the absence of evidence) is that they intended to be joint beneficial owners and this is so whether the purchase be in the joint names or in the name of one. This is the result of an application of the presumption of resulting trust. Even if the property be put in the sole name of the wife, I would not myself treat that as a circumstance of evidence enabling the wife to claim an advancement to her, for it is against all the probabilities of the case unless the husband’s contribution is very small.”

In some instances, the drawing of such an inference might work to the disadvantage of a wife who holds a legal interest in property greater than a joint tenancy and who would otherwise be entitled to rely upon the presumption of advancement to assert as large a beneficial interest as the legal interest which she holds. It is not necessary now to consider whether the founding of a joint beneficial tenancy in husband and wife upon their inferred intention “is the result of an application of the presumption of resulting trust”. What is presently material is whether it is appropriate to draw the inference that the parties intended that they should have beneficially a joint tenancy in the Baulkham Hills property – an interest corresponding with the interest vested in them at law.

It may be conceded that Lord Upjohn’s inference reflects the notion that both spouses may contribute to the purchase of assets during the marriage (as they often do nowadays) and that they would wish those assets to be enjoyed together during their joint lives and to be enjoyed by the survivor when they are separated by death.

…

… it is unnecessary now to decide whether Lord Upjohn’s inference should qualify the presumption of advancement in favour of a wife, but it can be said that the antiquity of the presumption of advancement does not preclude the elevation of such an inference to the level of a presumption to be applied where the absence of the spouses’ common intention leaves room for its operation. The doctrines of equity are not ossified in history …

(Emphasis added, citations omitted.)

74    As is apparent from the above passage, the High Court in Calverley was concerned with the rebuttal of the presumption of a resulting trust. Only Gibbs CJ considered the facts in that case gave rise to a ‘presumption’ of advancement (at 251) and the case is now good authority for the proposition that the ‘presumption’ of advancement does not apply to de facto couples (at 259-260). The ‘presumption’ of advancement also did not arise in Cummins because the wife in that case had contributed the greater proportion to the purchase price. Again, the High Court was concerned with a rebuttal of the presumption of a resulting trust based on evidence of a contrary intention and the Commissioner accepts that the Court’s statement at [71] was made in this context. This context is said to be of little moment however, and the Commissioner submits that the High Court’s acceptance of Professor Scott’s proposition at [71] cannot be qualified, and further, that it was a necessary step in the Court’s reasoning such that it is not merely obiter dictum.

75    The Commissioner also notes that this Court has since applied Cummins in the context of the ‘presumption’ of advancement in Deputy Commissioner of Taxation v Vasiliades [2015] FCA 412. More will be said on this below.

76    On the basis of these authorities, the Commissioner says that a distinction may be drawn between property (such as a matrimonial home) acquired for the use and enjoyment of both parties to a marriage, and property acquired for the sole use and enjoyment of one of them (such as clothes and jewellery). When property is acquired for the former purpose, this is a sufficient basis to rebut any ‘presumption’ of advancement he says, drawing also on Ebner v Official Trustee in Bankruptcy (2003) 126 FCR 281 (at [20]). It is said that the inference is inescapable that the Dalkeith Property was not acquired for the use and enjoyment of Ms Bosanac alone but, relevantly, for that of Mr Bosanac too. So much may be accepted; it is not in dispute that the couple lived together in the Dalkeith Property as spouses for a number of years. The Commissioner’s contention is that, with the ‘presumption’ of advancement either inapplicable or rebutted, the presumption of a resulting trust prevails such that Ms Bosanac holds a one-half interest in the Dalkeith Property on trust for Mr Bosanac.

77    The Commissioner relies on the following facts to support the inference that Mr Bosanac did not intend to gift his contribution to the purchase price to Ms Bosanac:

(a)    Mr and Ms Bosanac moved into the matrimonial home, as husband and wife, in late 2006, the property having been transferred into the name of Ms Bosanac in early November of that year;

(b)    Mr and Ms Bosanac then resided together in the Dalkeith Property for a period of more than seven years, including a period following their separation in 2012 or 2013;

(c)    Mr Bosanac’s contribution to the purchase price of the Dalkeith Property took the form of borrowed funds from Westpac;

(d)    those funds were borrowed on the condition that Ms Bosanac would register a mortgage in favour of Westpac over the Dalkeith Property to secure the loan funds;

(e)    both Ms Bosanac and Mr Bosanac were, jointly and severally, liable to pay the entirety of the funds advanced; and it follows that Mr Bosanac assumed a (very substantial) liability in contributing to the purchase of the Dalkeith Property without the benefit of having his name registered as a proprietor on the title; and

(f)    in 2007 a ‘Rocket Investment Loan’ was offered by Westpac to Mr and Ms Bosanac, secured by the existing mortgages over the Dalkeith Property and the Hardy Street Property. The funds were purportedly used by Mr Bosanac to conduct share trading.

CONTENTIONS FOR MS BOSANAC

78    Ms Bosanac denies that the Commissioner has established a resulting trust in favour of Mr Bosanac. She does so on the basis that longstanding authority binding this Court applies the ‘presumption’ of advancement to a disposition by a husband to his wife of the matrimonial home and none of the facts relied on by the Commissioner (i.e. that the home was cohabited during the marriage and that Ms Bosanac contributed to the loans) could logically rebut the ‘presumption’. Ms Bosanac argues that as they are basal facts that give rise to the ‘presumption’ of advancement, they cannot logically be relied upon to rebut it.

79    The Commissioner has led no evidence of Mr Bosanac’s actual intention at the time of the purchase, which is the key evidence required to rebut the ‘presumption’. It is argued that the ‘presumption’ of advancement applies to the contribution by Mr Bosanac as co-signor to loans used to purchase the matrimonial home. By way of summary, Ms Bosanac submits that the ‘presumption’ of advancement applies to contributions by a husband to purchases of property by the wife and the High Court has repeatedly applied the ‘presumption’ in the context of the matrimonial home.

80    As Ms Bosanac contends, courts have long recognised the ‘presumption’ of advancement as a ‘well-entrenched’ landmark in the law of property which cannot be disregarded by judicial decision: Calverley per Deane J (at 266). As McTiernan J noted in Wirth (at 241), citing Lord Eldon held in Finch v Finch (1808) 15. Ves. Jun. 43; 33 E.R. 671 ‘this principle of law and presumption is not to be frittered away by nice refinements’. On this basis, courts in more recent times have signalled that any change to the operation of the presumptions is best left to Parliament. As McHugh J stated in Nelson (at 602):

In the absence of knowledge as to what effect the abolition of the presumptions would have on existing entitlements, the better course is to leave reform of this branch of law to the legislature which can, if its thinks fit, abolish or amend the presumptions prospectively.

(see also Nelson per Deane and Gummow JJ at 548; Calverley per Deane J at 266; Snyder per Samuels JA at 701C. See also more generally: Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ at 364; Brown v Brown (1993) 31 NSWLR 582 per Gleeson CJ at 588; and Anderson at [115]).

81    Contrary to the Commissioner’s assertion that the matrimonial home can no longer be the subject of the ‘presumption’ of advancement, Ms Bosanac argues that the High Court has applied the ‘presumption’ of advancement to the matrimonial home in Wirth per Dixon CJ (at 237) and McTiernan J (at 241), and Martin per Dixon CJ, McTiernan, Fullagar and Windeyer JJ (where the matrimonial home was a farm). For these reasons, the Commissioner’s contrary submission that advancement of the matrimonial home is, in and of itself, a ‘sufficient basis to rebut any presumption of advancement’ must be rejected she says. She contends that the ratio of each of Wirth and Martin is that the ‘presumption’ of advancement applies to any property transferred from husband to wife, including the matrimonial home. The Commissioner disputes Ms Bosanac’s characterisation of these authorities as applying the ‘presumption’ to the matrimonial home.

82    Nevertheless, Ms Bosanac contends that the ‘presumption’ of advancement is simply not expressed in a qualified way so as to only apply to particular species of property. For reasons that will be explained below, Ms Bosanac disputes the Commissioner’s reliance on the reasoning in Ebner and the Court’s application of Cummins in Vasiliades. Ms Bosanac does concede however, that the High Court in Cummins has quoted (at [71]) passages from the academic work of Professor Scott that are inconsistent with the application of the ‘presumption’ of advancement to the matrimonial home. It is contended however, that because the facts in Cummins did not give rise to a ‘presumption’ of advancement, and because the High Court’s reasoning at [71] was in the context of considering the rebuttal of the presumption of a resulting trust, the acceptance of Professor Scott’s quote was not a necessary step in the course of the Court reaching its conclusion. It is therefore said to be obiter dictum. Although Ms Bosanac notes that the High Court has enjoined against lower courts ignoring ‘long-established authority and seriously considered dicta of a majority of this Court’: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 (at [135]), she argues that Professor Scott’s quotation in Cummins represents neither long-established authority, nor seriously considered dicta. It should not be adopted by this Court in the face of binding authority to the contrary, she says.

CONSIDERATION

83    It is necessary to examine how the authorities in Australia have approached each of the competing presumptions and the nature of their interaction.

84    As discussed by Edelman J in Anderson (at [106]-[116]), when a resulting trust arises by presumption, what is presumed is an actual declaration of trust. As his Honour put it, ‘the rebuttable presumption is the fact of a manifest declaration of trust… [t]he presumption is not of the legal institution of the trust itself (which is the conclusion of law)’. As Lord Nottingham explained in Cook v Fountain (1676) 3 Swan 585 (at 591); 36 ER 984 (at 987):

[E]xpress trusts are declared either by word or writing; and these declarations appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called presumptive trusts; and that is, when the Court, upon consideration of all circumstances presumes there was a declaration, either by word or writing, though the plain and direct proof thereof be not extant.

85    This characterisation of the presumed resulting trust lends support to the view, as adopted in the authorities referred to above (at [65]), that the so-called ‘presumption’ of advancement is better understood as particular sets of circumstances in which a presumed resulting trust will not arise. In other words, the person who provided the purchase money (or part thereof, in this case Mr Bosanac), is taken not to have declared a trust in his favour over the property. I agree with the authorities that the ‘presumption’ of advancement is best characterised as the absence of a presumed resulting trust such that the equitable interests remain at home with the title and the legal status quo is left undisturbed. Though those authorities have been set out above, they bear repeating here: Martin (at 303-304); Hepworth per Windeyer J (at 317); Pettitt per Lord Upjohn (at 814); Anderson (at [134]-[138]); Nelson per Deane and Gummow JJ (at 547), Dawson J (at 576), and Toohey J (at 584); Calverley per Gibbs CJ (at 247), Mason and Brennan JJ (at 256), Murphy J (at 265) and Deane J (at 267); see also Heydon JD and Leeming MJ, Jacobs’ Law of Trusts in Australia (8th ed, Lexis Nexis, 2016) (at [12-12]).

86    As alluded to above (at [70]), the Commissioner advances a number of interrelated yet alternate contentions for why the ‘presumption’ of advancement has no application to the present case. At [43] of his written submissions the Commissioner submits that in the circumstances of this matter:

(a)    there is a presumed resulting trust;

(b)    the presumed resulting trust is to the effect that Ms Bosanac holds a one-half interest in the Dalkeith Property on trust for Mr Bosanac;

(c)    the presumption of advancement is inapplicable or has been rebutted; and

(d)    the presumption of resulting trust has not been rebutted.

(Emphasis added.)

87    These contentions require some dissection. In order for the contentions at (a) and (b) to be made good in the circumstances of this case, the Commissioner must show that the ‘presumption’ of advancement does not arise. He attempts to do so by contending that the High Court’s decision in Cummins qualifies the ‘presumption’ of advancement such that it no longer applies to purchases by spouses of a matrimonial home. Thus, the initial question is whether the ‘presumption’ of advancement applies at all to this case, having regard to the competing lines of High Court authority on which the parties rely. Should the Commissioner succeed on this question, that will be dispositive of the case unless an intention to gift can be inferred on the part of Mr Bosanac. If however, the ‘presumption’ of advancement continues to apply to purchases of a matrimonial home, the second question is whether it has been rebutted, as the Commissioner contends in the latter portion of (c) above. But rebuttal of the ‘presumption’ of advancement (or the presumption of a resulting trust) is only achieved by evidence of a contrary intention on the part of the purchaser at the time of the purchase (here, Mr Bosanac). If such an intention is found to have existed at the relevant time, then the Court will give effect to that intention such that it will displace the presumption that has arisen on the facts (here, the ‘presumption’ of advancement). Contrary to the Commissioner’s contention at (d) above, it is with respect, misconceived to contend that the ‘presumption’ of advancement is rebutted such that the presumption of a resulting trust prevails.

88    Again, the reasoning of Edelman J (at [135]-[138]) in Anderson is, with respect, illustrative of the point:

135    On the other hand, there have been suggestions in some cases, and by some judges, that the presumption of advancement is a genuine presumption of a manifest intention to make a gift. These suggestions presuppose a confused evidentiary process where the presumption of advancement would need to be rebutted by the transferor, which would then reinstate a presumption of a declaration of trust in favour of the transferor, which the recipient would then need to rebut. This was the view of Maitland and Holdsworth: see F W Maitland, Equity: A Course of Lectures (1910), pp 79-80, also (2nd ed, 1936), pp 77-80; William Holdsworth, A History of English Law (1924) VI, p 644. See also the discussion of some of the authorities to this effect in J Glister, “Is there a presumption of advancement?” (2011) 33 Sydney Law Review 39.

136    The dominant Australian approach, however, is that of Dixon CJ: the “presumption of advancement” is not a presumption but is simply a circumstance in which the “presumption of resulting trust” does not arise. Thus, in Martin v Martin (1959) 110 CLR 297, the High Court (Dixon CJ, McTiernan, Fullagar and Windeyer JJ) explained that the presumption of resulting trust did not apply where a husband purchased land in the name of his wife: “as she was his wife the fact that he found the purchase money for the land raised no presumption in his favour of a resulting trust as it would or might have done had she been a stranger”. The court explained that the presumption “is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose”.

137    Various of the judgments in Calverley v Green also reiterate this point: (Gibbs CJ), (Mason & Brennan JJ). The judgments of Deane J and Murphy J are the most explicit. Murphy J said that ‘[t]he presumption of advancement, supposed to be an exception to the presumption of resulting trust, has always been a misuse of the term presumption, and is unnecessary’. Deane J said this:

[T]he ‘presumption of advancement’, is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that ... there is an ‘absence of any reason for assuming [presuming] that a trust arose.

138    The question for resolution in this case, therefore, is whether the ‘presumption of advancement’ applies. If so, this would then have the effect that there is no presumption of a declaration of trust.

(Emphasis added, citations omitted.)

89    In the absence of actual evidence of the purchaser’s intention at the time of the purchase, the role of the presumptions is to guide the Court in determining the proper inference that should be drawn from particular and recognised sets of circumstances. In this way, they operate as a kind of civil onus of proof: Calverley per Deane J (at 266 and 271); Nelson per Deane and Gummow JJ (at 547). When understood in this light, I do not think that the presumptions should be conceptualised as capable of rebutting one another. Rather, each arises on particular and distinct (albeit similar) circumstances, and each may only be rebutted by evidence of a contrary intention which, if available, will prevail. As the authors explain in Jacobs’ Law of Trusts (at [12-13]):

… the law endeavours always to give effect to the intentions of the parties, but in the absence of any evidence of such intention except the bare fact of the transfer to someone other than the purchaser, it presumes until the contrary is proved, in the first case, in favour of the person providing the purchase money and, in the other, in favour of the wife or child or person in loco filii.

(Citations omitted.)

90    Further, as the High Court noted in Charles Marshall (at 365):

The plaintiffs are the daughters of the donor and the initial presumption is that he intended to give the shares to them or, in other words, to make them the absolute beneficial as well as the legal owners of the shares. The plaintiffs start with this advantage. The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase (in this case before or at the time of the acquisition of the shares by allotment) or so immediately thereafter as to constitute a part of the transaction. If that evidence is insufficient to rebut the presumption the beneficial gift, absolute or subject only to qualifications imposed upon it at the time, is complete and no subsequent changes of mind or dealings with the property inconsistent with the trust by the donor can as between himself and the donees alter the beneficial interest.

(Emphasis added.)

91    This statement of principle is subject only to slight qualification by the High Court in Cummins in the manner discussed below.

92    Neither party in this case has put forward any evidence of the actual intention of Mr Bosanac at the time of purchasing the Dalkeith Property. However, the Commissioner also contends that, in the event that the ‘presumption’ of advancement is found to arise in this case, there is to be inferred from the circumstances and conduct of Mr Bosanac an absence of intention to gift his contribution to Ms Bosanac, and instead that he intended that she would hold the Dalkeith Property on trust for him to the extent of his contribution.

93    It is to be noted that a question can arise as to the form of trust that is to be enforced if evidence of an intention capable of rebutting the ‘presumption’ of advancement arises. In Nelson Deane and Gummow JJ held it to be a resulting trust, citing with approval a subset of the following passage from Scott AW and Fratcher WF, The Law of Trusts (4th ed, Little, Brown and Company, (1989):

It might be thought that evidence of an oral agreement by the grantee to hold the property in trust for the payor would be inadmissible because of the Statute of Frauds, where the grantee is a natural object of bounty of the payor. It might be argued that in the absence of such evidence a gift would be inferred and that although parol evidence is admissible to rebut a resulting trust it cannot be admitted to establish an express trust. The courts have explained, however, that the trust which is enforced is a resulting trust, not an express trust; that the presumption of a gift to a relative is a rebuttable presumption, and parol evidence is admissible to rebut the presumption of a gift and thus automatically to create a resulting trust. This reasoning is somewhat artificial; but trusts arising where evidence shows an intention to create a trust when land is purchased in the name of a relative were considered to be resulting trusts before the enactment of the Statute of Frauds, and that statute expressly excepts resulting trusts from its operation.

(Citations omitted. See also Ford and Lee at [21-534].)

Thus, while rebuttal of the ‘presumption’ of advancement will give rise to a resulting trust, as Edelman J observed in Anderson (at [135]) it does not operate in the same way as the presumption of a resulting trust that arises between strangers in that it cannot then be further rebutted by evidence. The legislative provision that exempts resulting trusts from the requirement of writing in Western Australia, is s 34 of the Property Law Act 1969 (WA).

94    Accounting for the above analysis of the Australian authorities, the Commissioner contends that the ‘presumption’ of advancement does not apply in circumstances that involve the purchase of a matrimonial home. In effect, he contends that, where previously a contribution by a husband to the purchase price that exceeded his share in the legal title would not have given rise to the presumption of a resulting trust, those circumstances should now give rise to a presumed resulting trust where the property in question is the matrimonial home. This amounts to a narrowing of the circumstances or states of affairs that comprise the ‘presumption’ of advancement. Indeed, the Commissioner contends that the High Court’s decision in Cummins qualifies the ‘presumption’ of advancement. This qualification is said to arise from the fact that the continued operation of the ‘presumption’ of advancement must be informed by its underlying basis. The Commissioner says the High Court accepted in Cummins (not simply quoted the passage from Professor Scott) that where a husband and wife each contribute to the purchase of a matrimonial home and title is taken in the name of one of them, it may be inferred that it was intended that each spouse should have a one-half share. In other words, it is said to be prima facie probable that each spouse would have a one-half share. Such a basis was proffered by Dixon CJ in Wirth (at 237) and found favour with Gibbs CJ in Calverley (at 249-250), however it is not without its criticism: see Nelson per Toohey J (at 586) and Anderson (at [128]-[132]).

95    Ms Bosanac relies on an older line of High Court authority in which it is said the ‘presumption’ of advancement did arise on the facts and was applied to the matrimonial home. She contends that nothing in the High Court’s reasoning in Cummins or other subsequent cases has overturned the ratio of these cases and that this Court could not do so on the basis of what she says is obiter dictum in Cummins. It will be necessary in light of these contentions to examine both lines of authority in some detail.

96    First, however, it is convenient to reiterate the core relevant facts that are not in dispute. There is no dispute that the Bosanacs were married at the time of purchasing the Dalkeith Property. It is also not disputed, and it is established on the Commissioner’s evidence, that the purpose of the purchase was to acquire a matrimonial home and the Bosanacs lived together at the Dalkeith Property in fulfilment of that purpose for a number of years before separating. Further, by entering into a joint loan agreement, the Bosanacs each contributed half of the purchase price of the Dalkeith Property however, Ms Bosanac is, and has been since the time of the purchase, the sole registered proprietor.

97    It is not disputed that, absent the fact of the Bosanacs’ marriage, the core facts stated above would clearly give rise to a presumption of a resulting trust in favour of Mr Bosanac to the extent of a one-half interest in the Dalkeith Property (equal to the proportion of his contribution to the purchase price). However, the Bosanacs were married at the time of the purchase, a fact that Ms Bosanac says enlivens the ‘presumption’ of advancement and prevents the presumption of a resulting trust from arising at all. The Commissioner contends that the only reason the ‘presumption’ of advancement does not arise in this case is because the purchase in question was of the matrimonial home. It is said that historically, the basis for the ‘presumption’ of advancement was the natural obligation of a husband towards a wife: Anderson (at [125]). The ‘modern’ justification, he says, is that there is a prima facie probability that a beneficial interest was intended to be transferred by a husband to a wife. But in the case of the matrimonial home, a property clearly purchased for the use and enjoyment of both spouses, that justification for the ‘presumption’ of advancement cannot hold, and the better inference has to be that Mr Bosanac intended to enjoy the benefit of his contribution. Accordingly, the presumption of a resulting trust should not be disturbed.

98    A qualification of the ‘presumption’ of advancement by reference to the species of property in question is undoubtedly a departure from the traditional formulation of the ‘presumption’ as developed in the old English cases: for example Dyer (at 43-44); Kingdon v Bridges (1688) 23 ER 653; Devoy v Devoy (1857) 65 ER 713 (at 714); Soar v Foster (1858) 70 ER 64 (at 67); re Ekyn’s Trust (1877) 6 Ch D 115 (at 118). However, it is also clear that the nature and application of these presumptions has developed together with societal attitudes and structures such that there is certainly merit in the Commissioner’s contentions. I turn now to consider the competing lines of authorities relied on by the parties.

The authorities

99    Ms Bosanac relies on the High Court’s decisions in Wirth and Martin in which it is said the High Court applied the ‘presumption’ of advancement to the matrimonial home. The Commissioner disputes this reading of the decisions.

100    Wirth was decided by the High Court in 1956 constituted by Dixon CJ, McTiernan and Taylor JJ. The parties, while engaged to marry, purchased as joint tenants land on which to build their future matrimonial home. Although there were a number of deficiencies in, and disputes about the evidence concerning the provenance of various monies spent by the couple, it was clear that the male partner contributed at least half the purchase price of the land and a similar portion of the funds applied to the construction of a home on the land. Around the same time as construction commenced and about four months before the couple married, the female partner induced the male partner to transfer his interest in the land to her. The male partner acceded, later giving evidence to the Court that it was something her parents had done and he had effected the transfer to please his fiancé and her parents. Although it was clear that the transfer was not the result of a bargain reached between the couple, the memorandum of transfer recorded consideration in a sum equal to half the purchase price of the land. The fact that the consideration sum was never given or received provided a point of distinction for the members of the Court. Litigation ensued in consequence of the marriage breakdown some 30 years later. The question for the Court, as observed by Dixon CJ (at 235), was whether there arose from the husband’s transfer in 1923 to his female partner of his interest as joint tenant in the land, a presumption of a resulting trust in his favour. At that date, she had not yet become his wife.

101    The Chief Justice considered (at 237) that despite the couple being unmarried at the time of the transfer, the purchase of the land in contemplation of marriage was sufficient to give rise to the ‘presumption’ of advancement such that no resulting trust arose. Until the decision of Moate v Moate [1948] 2 All ER 486, the application of the ‘presumption’ of advancement to an engaged couple had not been considered, but the Chief Justice said that what was important was that:

the transfer was made so to speak in preparation for the marriage and on the footing that the transferee became the transferor’s wife but in advance of her doing so. While the presumption of advancement doubtless in its inception was concerned with relationships affording “good” consideration, it has in the course of its growth obtained a foundation or justification in the greater prima facie probability of a beneficial interest being intended in the situations to which the presumption has been applied.

102    His Honour went onto say (at 238) that to find to the contrary, namely, that a transfer made in contemplation of marriage raised a presumed resulting trust while a transfer after marriage would instead be presumed an advancement would involve:

…almost paradoxical distinction that does not accord with reason and can find a justification only on the ground that the doctrine depends on categories closed for historical reasons. That is not characteristic of doctrines of equity.

103    It is convenient to briefly observe now that the Commissioner relies on the latter remarks of the Chief Justice in the above passage to support his contention that it is in the nature of equity to permit adjustments of principle such as the qualification of the ‘presumption’ of advancement which is now pressed. The Chief Justice then concluded (at 242) that regardless of the operation of either presumption, the evidence of the case also pointed to an intention to gift as follows:

[i]f there be no presumption of advancement in the present case, and the [female partner] has to rebut the presumption of a trust, when the actual facts of the case are considered and these include the impending marriage with the [male partner], I think it is true to say she is in such a position to the [male partner] as to make it extremely probable that the transfer was intended as a gift.

104    Although McTiernan J agreed with Dixon CJ in Wirth that the legal title need not be disturbed, his Honour considered (at 240) that the male partner did not discharge the onus of proving that his fiancé held the interest that he conveyed to her on trust for him. His Honour identified a number of difficulties with applying the presumption of a resulting trust to the case, the first of which being the fact that the transfer was purportedly for good consideration (at 240-241). Regardless, his Honour considered that the facts and inferences from the evidence prevailed over any presumption to indicate that the transfer was intended as a gift (at 242). If in the alternative a presumption of a resulting trust was made out, his Honour reasoned as follows (at 241):

But if the correct principle is that a trust would have resulted from the transfer because it was voluntary and declared no trust, could the presumption of a trust prevail over the inferences to be drawn from the circumstances of the case? First there are the conversations of which the respondent gave evidence. These are consistent with the intention to benefit the appellant. The appellant relied upon the case of Moate v. Moate. If there were a presumption of advancement that would be a complete answer to the respondent’s claim that a trust in his favour resulted from the transfer. Referring to the presumption of advancement, Lord Eldon said in Finch v. Finch: “This principle of law and presumption is not to be frittered away by nice refinements”. I am not convinced that, if I were to say that this presumption does not apply to a conveyance without value in which no trust is declared, made by a man to the woman whom he is about to marry I would be doing what Lord Eldon condemned. But if the present case cannot be determined in the appellant’s favour by that principle, I would think that the fact that the parties were about to marry coupled with the evidence given by the respondent of his motives for transferring his interest in the land to the appellant would rebut the presumption of a trust. I assume for this purpose that there was the presumption of a trust and not of a gift because the transfer was not for value and in it no trust was declared.

(Citations omitted.)

105    Taylor J (in dissent), after a detailed examination of the evidence, determined the matter on the facts, saying (at 246) that:

... Upon my view of the evidence his execution of the transfer in July 1923 resulted from his ultimate acquiescence in and the adoption of a state of affairs which was represented, both by the [female partner] and her parents as a convenient arrangement with respect to the joint property of married couples. None of the evidence given by the [male partner] on this point was denied in any way by the [female partner] and it satisfies me that both parties understood that the land was to be held by the [female partner] for the joint benefit of both parties. It may be fair criticism of this view to say that the evidence which leads to it is without great weight but formal or precise declarations of trust are not to be expected in matters of this character and the evidence does appear to me to be of considerable significance.

106    His Honour did not need to decide the matter in accordance with application of the ‘presumption’ of advancement, which was pressed on the Court following the English decision of Moate.

107    There is little doubt that Dixon CJ applied the ‘presumption’ of advancement to the matrimonial home in Wirth. McTiernan J agreed with the Chief Justice on alternate bases, one of which was the ‘presumption’ of advancement. However it must also be recognised that the Court in that case had the benefit of testimony from both spouses, in particular the male partner as to his motives for effecting the transfer. At no point do the reasons of McTiernan J or Taylor J suggest that the fact that the property in question was the matrimonial home had any bearing on the operation or not of the ‘presumption’ of advancement. Although they reached different conclusions, their Honours considered the evidence led was sufficient to establish the relevant intention without recourse to the presumptions.

108    Decided shortly after Wirth, the High Court’s unanimous decision in Martin concerned a claim by a husband to certain parcels of land that had been purchased by him in his wife’s name. Ms Bosanac says the High Court in this case applied the ‘presumption’ of advancement to a matrimonial home as part of the ratio of its decision. The Commissioner rejects this, pointing out that the decision rested instead on the actual intention of the husband and concerned instead only a parcel of farm land. It is thus necessary to address the facts in some detail.

109    A year before the couple married, in 1946, the husband had purchased 1200 acres of land called ‘Whittakers’ which had been improved by buildings including a house. At some point shortly after, the couple took up residence there. Whittakers was purchased in the husband’s name, as was a block of 892 acres of adjoining land purchased by the husband shortly after Whittakers. Two further parcels of adjoining land were then purchased by the husband in the wife’s name. These blocks totalled 1527 acres and were separated by the Whittakers land (and adjoining parcel) by a road. The Court recorded (at 302) that about a year after the couple had married, the husband proceeded to sell the Whittakers land and the couple then moved into a dwelling in the northern corner of the 1527 acres held in the wife’s name. The 1527 acres were held by the wife as two separate blocks of 700 and 827 acres with the house in which the couple resided (the matrimonial home) lying on the former. A few years later a third block of 255 acres was purchased by the husband in the wife’s name.

110    The marriage broke down some 10 years after the husband had first purchased the Whittakers land. The husband then commenced an action in the Supreme Court of South Australia for claims over the three adjoining parcels in the wife’s name. However, as the Court made clear (at 298), during the course of oral evidence before the trial judge, the husband clarified his position, seeking instead only one of the three parcels, described as the ‘upper part’ of the land. This portion sought by the husband does not appear to have been where the matrimonial home was located.

111    The High Court (Dixon CJ, McTiernan, Fullagar and Windeyer JJ) framed the issue of the case as follows (at 298):

… The land was purchased in her name by the husband and the question is whether the presumption of advancement has been rebutted and a resulting trust made out. Her appeal is on the ground that a resulting trust has not been made out by any satisfactory evidence …

112    The Court then proceeded to recite in some detail (at 298-303) the facts summarised above as well as the numerous and conflicting accounts of the husband’s intention in purchasing the properties in his wife’s name. Their Honours then said the following (at 303):

In the end Martin’s case depends upon the correctness in the foregoing circumstances of the view taken by Abbott J [the trial judge] that Martin did not intend that his wife should have the beneficial ownership of the land. It was of course for Martin to make out positively that his wife did not take the land beneficially but as a trustee for him. As she was his wife the fact that he found the purchase money for the land raised no presumption in his favour of a resulting trust as it would or might have done had she been a stranger. The presumption is in her case that the beneficial ownership went with the legal title. It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose or in other words that the equitable right is not at home with the legal title. Evidence however that the wife was intended to take as a trustee has long been admissible.

(Emphasis added.)

113    As the Court then makes clear (at 306), the trial judge’s view was that the evidence established that the husband never intended the land as an advancement to his wife. Importantly though, it is also apparent that the trial judge reached this conclusion by first applying the ‘presumption’ of advancement and then considering whether a contrary intention was established that rebutted the presumption:

… Towards the close of his judgment, in approaching the application to the facts of the presumption of advancement, his Honour said: “I am inclined to the view that the applicant never intended that the wife should have any equitable interest in this land, and I am satisfied that until she had taken legal advice she never thought that she had any equitable interest in it.” …

114    In the end the High Court in Martin was not persuaded to disturb the trial judge’s findings of fact as to the husband’s intention to retain a beneficial interest in the land. However, in dismissing the wife’s appeal, the Court expressed significant reservations about the findings of the trial judge (at 307-308):

… the question for this Court must be whether it should give effect to the finding of Abbott J. that Martin never intended that his wife should take the land as an advancement. It is a finding based entirely upon his Honour’s opinion of Martin’s real intention. It is evident that as a witness Martin could not and did not carry great weight. On the subject of his real intention he had put forward inconsistent stories and had founded inconsistent claims upon them. In the circumstances perhaps the presumption of equity might have formed a safer guide than Martin’s evidence. But a court of appeal must exercise great caution in setting aside a finding upon a question of intention made by the judge who has seen and heard the parties as witnesses.

(Emphasis added.)

115    Although no ground for disturbing the trial judge’s findings of fact as to the husband’s intention was established before the High Court in Martin, there is little doubt that both the High Court and the court below considered the facts enlivened the ‘presumption’ of advancement. The Commissioner contends that it is important in this case that the parcel of land concerned was not the parcel on which the matrimonial home stood, however in my view, nothing in the reasoning reflects that contention. The relevant land was contiguous to, and part and parcel of the entirety of the land which the couple jointly lived on and worked. There is nothing in Martin which would suggest that the matrimonial home is in some different category from other property. Indeed, it is tolerably clear from the High Court’s decision (at 298 and 307) that the reason the particular block of land on which the matrimonial home stood was not subject to the claim was that the husband had elected before the trial judge to seek only one of the parcels. So much of the trial judge’s decision is recorded by the Court (at 307):

… After mentioning ways in which Martin asserted ownership, his Honour proceeded: “In these circumstances today a fair decision would be an equal division and were it not for what the husband has himself said, that is what I should do.” (What the husband himself said was that he wanted only the upper part of the land.)…

116    In Hepworth (decided in 1963), a differently constituted High Court (Kitto, Taylor and Windeyer JJ) held that where the purchase price for land and the money for the subsequent erection upon it of the matrimonial home had been provided in part by a husband and in part by his wife, but the land had been transferred into the name of the wife alone, such transfer having been arranged not by the husband, but by the wife, and perhaps her father without the consent of the husband, the ‘presumption’ of advancement did not arise and the wife held the property as trustee for herself and her husband as tenants in common in equal shares.

117    The trial judge rejected much of the wife’s evidence at first instance in which she claimed that the purchase monies had been contributed solely by her and her father. On appeal to the High Court, the wife did not seek to challenge these evidentiary findings but instead raised the ‘presumption’ of advancement (at 312). The wife was the claimant in this case, seeking declarations that she held the legal title free of any claims despite the fact that this was the prima facie legal position. It is not in dispute that the property in question was the matrimonial home.

118    In the lead judgment, Kitto and Taylor JJ identified the fact that the husband (the respondent) had not consented to the purchase as the basis for rejecting any argument that the ‘presumption’ of advancement could arise in the case (at 314-315):

… Of course, if moneys to which the respondent was beneficially entitled were with his full knowledge and acquiescence used for the purpose of acquiring land in her name a gift in her favour would be presumed.

…

Nevertheless, if the appellant wished then to rely upon the presumption of advancement the onus rested upon her of showing that the moneys which were, in fact, applied in the purchase of the land were so applied with her husband’s consent for the purpose of acquiring the title to the land in her name.

However these passages make plain that their Honours considered the other facts of the case to give rise to the ‘presumption’ of advancement. Their Honours’ reasons do not indicate that the wife would also need to overcome the fact that the property was the matrimonial home so as to raise the ‘presumption’. Ultimately, their Honours agreed with the trial judge that the evidence of the case did not indicate that the husband had intended to gift his contribution.

119    In a concurring judgment, Windeyer J made some important observations about the role of the Court in property cases at common law. His Honour sought to emphasise that the Court is only empowered to determine and declare rights in strict accordance with common law titles and equitable doctrines (at 317). His Honour proceeded to reject the discretionary approach adopted in some English authorities saying (at 317-318):

Community of ownership arising from marriage has no place in the common law.

…

On a voluntary transfer by a husband to his wife, or on a purchase by a husband in the name of his wife, a presumption of a resulting trust does not arise – or, as some would say, less accurately I think, it is overborne by a countervailing presumption of advancement. An intention, proved or presumed, that a trust should exist is at the base of every trust: and spouses, living together, may express their intention clearly enough one to another without resorting to the language of conveyancers. Thus it sometimes happens that property which is held in the name of one spouse but which they enjoy together, belongs beneficially to both jointly or in common. Nevertheless if after a husband and wife have quarrelled disputed rights to property have to be decided, they must be decided according to the interests, legal and equitable, already created, not according to what may seem to be fair in a situation of discord that, quite probably, was not contemplated by either when the property was acquired. I say this because of some of the observations in some of the English cases that were cited, observations that may suggest that the statutory jurisdiction that was invoked in this case gives a court a discretion to disregard existing legal and equitable rights and to make such order as may seem to it fair in the circumstances existing when it is considering the case. That has not been the view of this Court: Wirth v. Wirth; Martin v. Martin …

(Emphasis added.)

120    His Honour went onto conclude (at 319) in very similar terms to Kitto and Taylor JJ that the particular conduct of the wife in this case could not properly raise the ‘presumption’ in her favour:

… This meant, it was urged, that the property was hers, and hers alone, in law and in equity; for, it was said, the respondent had not displaced the presumption of advancement. The onus was on him to show that the beneficial interest did not accompany and accord with the legal title. That is beyond doubt. But this case is not really one in which it is appropriate to speak of a presumption of advancement. It is not like a case in which a husband bought property and had it put in his wife’s name. Here the wife bought the land, largely with what must be taken to have been the husband’s money, entrusted to her for safe keeping and use for their mutual benefit. …

121    Again, this case does not suggest that the ‘presumption’ of advancement will not apply to the matrimonial home, indeed, it clearly stands for the proposition that it will, but in the case of fraudulent transfer, unsurprisingly, that would not be so. The reasoning turned entirely on the nature of the evidence. There was no suggestion whatsoever that the ‘presumption’ of advancement would not apply to the matrimonial home.

122    In Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460, only Barwick CJ considered in passing the ‘presumption’ of advancement. The case concerned a husband who had purchased the matrimonial home by providing part of the money himself with the balance obtained by mortgages in the names of both spouses jointly. Upon the husband’s death, the executor made demands on the wife for indemnity or contribution to the mortgage payments. The Chief Justice observed (at 480):

… It was bought by the husband and conveyed into the joint names of the two of them by way of advancement to the wife as to her joint interest in the land. Apart from any presumption, which of itself would be enough, the intention so to do is manifest in the evidence. The subject matter of the advancement was not, in my opinion, an equity but clearly a freehold: cf. per Warrington J. in Dunbar v. Dunbar. So to conclude denies any right to contribution or indemnity by the respondent in respect of the mortgage debts. Alternatively, it can properly be said that the borrowing of money upon the security of the land was to provide the deceased with the purchase money for the property. It was not borrowed for them both but for him alone. The signature of the mortgage, including its personal covenant, was not intended by the parties to create any right of contribution or indemnity. …

(Citations omitted.)

123    Again, there seemed to be no doubt that the matrimonial home would be the subject of a ‘presumption’ of advancement as far as the Chief Justice was concerned.

124    At this juncture, it is necessary to depart from this relatively consistent line of High Court authority to briefly consider the decisions of the House of Lords in Pettitt (decided in 1970) and Gissing v Gissing [1971] AC 886. These cases concerned instances where a partner or spouse claimed a beneficial interest in property held in the name of the other partner or spouse based on contributions in the form of improvements and maintenance to the property rather than a contribution to the purchase price. Accordingly, the ‘presumption’ of advancement did not arise directly on the facts of either case, however the various speeches of their Lordships traverse as obiter dicta many of the circumstances in which a beneficial interest in the matrimonial home is claimed by one spouse against the other, and consider the appropriate inferences to draw about the intentions of such couples from their conduct. These cases have been subject of both criticism and adoption in parts by Australian courts and more will be said on this below.

125    In Pettitt, the matrimonial home was purchased by the wife using proceeds from the sale of property that she had inherited, and was placed in her name only. Her husband claimed a beneficial interest in the property based on his improvement and redecoration of it which was said to have enhanced the value. In Gissing, the husband purchased the matrimonial home in his own name while his wife contributed to the furnishings and the laying of a lawn. Upon their divorce, she claimed a beneficial interest in the home.

126    In each case, the House of Lords considered the circumstances in which a court will find a trust to exist, or indeed impose a trust to make good one party’s claim to a beneficial interest in the property of the other. It seems that the prevailing principle from their Lordships’ speeches is that a trust will be found to exist where the moving party can establish, having regard to the evidence and conduct of the parties, a common intention at the time of the purchase that the property was to be shared (Pettit at 804, 806, 810-811, 813, 822; Gissing at 897, 989, 900, 902, 906). Whether and to what extent recourse could be had to inferences from circumstances for findings that a subjective intention actually existed, or indeed whether in the absence of any evidence to support such an inference, the Court may impute a deemed intention to the parties by operation of law was a point of significant difference between their Lordships in these cases. The latter view that a common intention could be deemed by ‘judicial imputation’, espoused primarily by Lord Reid and Lord Diplock (in Pettit at 794-796 and 822-823) was not adopted by the majority in Pettitt, their Lordships finding instead that courts could only give effect to an actual intention found to have existed on the evidence of the case (at 804 and 810). In Gissing, although Lord Reid remained steadfast in his view (at 897), Lord Diplock acceded to the majority view (at 904) saying:

… I did, however, differ from the majority of the members of your Lordships’ House who were parties to the decision in Pettitt v. Pettitt in that I saw no reason in law why the fact that the spouses had not applied their minds at all to the question of how the beneficial interest in a family asset should be held at the time when it was acquired should prevent the court from giving effect to a common intention on this matter which it was satisfied that they would have formed as reasonable persons if they had actually thought about it at that time. I must now accept the majority decision that, put in this form at any rate, this is not the law.

127    The House of Lords in Pettitt also disclaimed much of what had been said previously in the English cases about ‘family assets’ (at 795, 801, 810-811, 817). It also confirmed that the courts do not have the discretion to vary property rights under the relevant legislation, only to identify and declare them as was made clear by Windeyer J in Hepworth. These cases are examined only to contextualise their uptake (and criticism) by Australia courts (see Jacobs’ Law on Trusts at [12-18]). The House of Lords in Pettitt and Gissing also expressed differing views about the ongoing utility of the presumptions, however save for where those views have been endorsed by Australian courts, it was not submitted by counsel here that I should follow any of those views.

128    In Doohan v Nelson (1973) 2 NSWLR 320 in the meantime, Mahoney J considered a claim by a widower that his late wife had held their matrimonial home on trust for him. The property was purchased in 1918 with an initial deposit paid from a wedding gift from his wife’s father with the balance then paid by the husband by way of a loan secured by a mortgage over the property. The husband advanced his claim on the basis that a trust should be found (at 323):

(a)    to have been created expressly by the parties; or

(b)    to arise by implication of law from the circumstances; or

(c)    to arise from some special principle of law applicable in the context of the husband and wife relationship.

The defendants to the claim were all those persons interested in the wife’s deceased estate however they elected not to actively participate and the matter proceeded before Mahoney J unopposed.

129    His Honour recorded (at 323) the husband’s evidence that he had thought it ‘fair’ to put the property in his wife’s name because her father had gifted them the deposit but that ‘little thought’ had actually been given precisely to the ownership of their home. Mahoney J considered this evidence did not disclose any express trust, and that the evidence rather tended to ‘negative the existence of any actual subjective intention’. His Honour proceeded to consider the two remaining grounds of the husband’s claim. As to the ‘presumption’ of advancement, his Honour said (at 325-326):

I do not think that “under Australian case law,” words used in Martin v. Martin it is open for me to hold that in the present context there is no longer a presumption of advancement. In Martin v. Martin the Court referred to the presumption of advancement in its reasoning in relation to transactions generally between husband and wife, and in Moody v. Moody, in relation to the matrimonial home, Herron C.J. in a judgment concurred in by the other members of the Court of Appeal referred to Martin v. Martin in the context of an argument based upon the possibility of a presumption of advancement applying.

It may be that, following the decision of the House of Lords in Pettitt v. Pettitt and the observations therein of Lord Reid, Lord Hodson and Lord Diplock the strength of the presumption and of the evidence required to rebut it will be less where the case concerns the ordinary matrimonial home.

…

It has been established that, in determining such questions the principles involved do not vary according to whether the case does or does not concern a matrimonial home, but it has been accepted that, as the facts and the assumptions or expectations of the parties in relation to matrimonial homes may be different from those in other cases, the fact that the principles are applied qua a matrimonial home may lead to different results from those to be expected in other cases.

(Emphasis added, citations omitted.)

130    His Honour then embarked on a detailed analysis of Pettitt and Gissing, paying particular regard to their Lordships’ comments on the proper inferences as to intention that can be drawn from circumstances and conduct of spouses. His Honour concluded (at 329) that an intention to establish a trust could be ‘imputed’ to the husband:

If the court is to infer from these facts an intention, or alternatively is to impute an intention, subjective or otherwise, of which there is no direct evidence, the proper inference is, in my opinion, that the husband did not intend that the wife should have the benefit of all the subsequent payments made and to be made by him or to rely upon the matrimonial or personal relationship to protect his interests. If the proper inference be, as I believe it is, that the home was put into the wife’s name originally because of the special circumstances of a wedding gift, any inference of intention to benefit the wife which might be drawn from that fact is, in my opinion, overborne by the inference to be drawn from the husband’s acceptance of the matrimonial or practical duty to pay off and maintain the house indefinitely in the future.

…

I am, therefore, of opinion that, either as a matter of “common intention” or as the result of judicial imputation, a trust in favour of the husband absolutely was created in respect of the home.

131    As will be shortly made apparent, the proposition that the Court can impute to the parties an intention which never actually existed has been subsequently rejected in Australia. Mahoney J however considered at the time of Doohan that Pettitt and Gissing had returned a degree of consistency between the English approach and the Australian position disclosed in Wirth and Martin ( 329-330). No Australian decisions were brought to his Honour’s attention that dealt with the inferences to be drawn from particular facts such that it was considered appropriate to follow Pettitt and Gissing (at 330), remembering of course that the matter was unopposed. Importantly, his Honour then reiterated the position with respect to the matrimonial home, saying (at 330):

It is in my opinion now established that, as far as concerns questions of principle, there is no differentiation to be made in any respect here relevant between cases involving ownership of a matrimonial home and cases between separate persons involving other property. The courts have finally rejected the principle that there is a judicial discretion as to property rights arising from e.g., the Married Women’s Property legislation.

132    In Snyder (decided in 1977), the New South Wales Court of Appeal (Glass, Samuels and Mahoney JJA) considered a situation where an unmarried couple had lived in a home owned by the male partner, the female partner having made no contribution to the purchase price but had furnished the home. The couple intended to marry as soon as the female partner’s divorce had been finalised. The male partner made his will in the female partner’s favour in relation to the property however the couple never married. After the female partner lived alone in the home for a number of years, the male partner sought to evict her. She claimed a beneficial interest.

133    Clearly, the facts are not directly applicable to the present case, however the separate reasons of Glass, Samuels and Mahoney JJA give detailed consideration to the prevailing principles in Australia in light of the decisions in Pettitt and Gissing. While their Honours were all agreed that the female partner’s claim to a beneficial interest in the property should be rejected, Glass and Samuels JJA expressly rejected parts of the obiter dicta comments in Pettitt and Gissing that Mahoney JA had applied in Doohan and in Snyder.

134    In the first paragraph of Samuels JA’s reasons, his Honour indicates that he agrees with the reasons of Glass JA but that, given the importance and increasing frequency of these particular cases coming before the courts, his Honour endeavoured to also state the conclusion in his own words (at 697). Counsel for Ms Bosanac submitted that Glass JA’s judgment should be read as the view of the majority of the Court in this case.

135    Glass JA commences with a statement of the relevant principles as follows (at 690):

A resulting trust is presumed in favour of the party providing the money. His beneficial interest is proportionate to his contribution. If, however, the legal owner is a wife, and the purchase price has been provided by her husband, there is countervailing presumption of advancement viz. that she takes the beneficial interest as a gift. Both presumptions, being rebuttable, will yield to evidence as to the actual intention of the parties. Constructive trusts arise where it would be a fraud for the legal owner to assert a beneficial interest. Unlike express and implied trusts, which reflect actual intentions, they are imposed, without regard to the intentions of the parties, in order to satisfy the demands of justice and good conscience: …

…

It is into this settled framework of doctrine that it is necessary to fit recent decisions involving disputes between spouses when the matrimonial home is in the name of one of them, but the other claims an interest. Pettitt v. Pettitt and Gissing v. Gissing are two decisions of the House of Lords, each of which rejected a claim by a spouse to a beneficial interest in the matrimonial home held in the name of the other. In the course of their judgments their Lordships expressed numerous obiter opinions, of which I believe the following represents a consensus.

(1) The Court merely declares the rights of the parties, and has no power to vary them in accordance with considerations of fairness: Pettitt v. Pettitt. This corresponds with what the High Court has laid down. See Hepworth v. Hepworth and cases there cited.

(2) Except for the presumption of advancement, the principles governing equitable interests are the same in disputes between spouses as in a dispute between other parties: Pettitt v. Pettitt; Gissing v. Gissing.

(3) 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: Gissing v. Gissing. 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: Ibid.

(4) The common intention to which the Court gives effect may be expressed in such an oral agreement, or it may be inferred from the conduct of the parties: Gissing v. Gissing. What is enforced is an actual intention, inferred as a matter of fact: Ibid., not an imputed intention which they never had: Ibid., but would have had, if they had applied their minds to it: Ibid.; Pettitt v. Pettitt.

(Emphasis added, citations omitted.)

136    His Honour then proceeded with a detailed analysis of Pettitt and Gissing and identified ‘a problem of no inconsiderable dimensions’ in identifying the precise nature of the trust that courts are to give effect to upon proof of a common intention, noting that their Lordships appear to conflate resulting, implied and constructive trusts (at 691). His Honour concludes that the trust imposed must be a constructive trust, and goes on to cite a series of English Court of Appeal cases that have seized upon the reasoning primarily of Lord Diplock in Gissing to develop an entirely novel constructive trust. Glass JA rejects this approach in the English cases as well as Mahoney JA’s approach in Doohan as follows (at 693-694):

… It will be observed that, in these various formulations of principle, nothing is said about the court giving effect, by means of a trust, to the express agreement or actual common intention of the parties. In its place there has been substituted a rule that the court may impose a trust on the legal owner in favour of the party making a contribution, whenever it is fair to do so. The trust is not based upon the actual intentions of the parties, inferred as a matter of fact, but upon intentions imputed to them, as a matter of law. In Doohan v. Nelson Mahoney J., as he then was, observed that “the relevant trust may be found to exist either because it is one which arises by implication of law directly, or because it arises from the imputation of a common intention where there is no evidence that such an intention originally existed in any subjective sense”. In Valent v. Salamon, Holland J., being unpersuaded that he should infer a subjective intention, imputed the requisite common intention to the parties on the basis that their words and conduct were such that they should be treated as having had the intention. He made it clear that he was distinguishing between an inference of a subjective intention, and imputing one to the parties by “what Lord Reid and Mahoney J. described as judicial imputation”.

With great respect to my learned colleagues, I am unable to accept the proposition that a trust of the matrimonial home may be based upon a common intention, which does not actually exist, but which is ascribed to the parties by operation of law. It is without authoritative backing and contrary to principle and authority.

(Emphasis added, citations omitted.)

137    His Honour concludes by observing that any application of Pettitt and Gissing that permits the Court to impute a common intention to the parties, whether based on what reasonable people in their shoes would have decided had they turned their minds to it or otherwise, is contrary to both a proper reading of their Lordships’ decisions and the Australian positions (at 695):

The doctrine that a trust of the matrimonial home may arise in favour of a spouse as a result of her contribution to the acquisition or maintenance of the home, in the absence of any actual understanding or reciprocal intention, is also wholly inconsistent with the line of reasoning in the High Court cases referred to in Hepworth v. Hepworth. Since the decisions of the English Court of Appeal which establish a novel constructive trust are in conflict also with dicta in the House of Lords, this Court is directed by ultimate authority both in England and Australia not to follow them.

(Citations omitted.)

138    To Glass JA’s observations need only be added the concluding remarks of Samuels JA (at 701):

I agree with Glass J.A. that Lord Reid’s views in Gissing v. Gissing about the imputations of intention do not command the support necessary to clothe them with authority; and that Lord Denning’s doctrine of the new constructive trust in Eves v. Eves is contrary to the majority opinion in Gissing v Gissing, and in Pettitt v. Pettitt also; and, I venture to think, to the reasoning in cases such as Hepworth v. Hepworth and Wirth v. Wirth. I do not consider that, by the device of the constructive trust, we are able to impose some scheme of community of ownership of property acquired for common use by spouses or others living together in a domestic relationship. Nor do I think that we should attempt to do so. It may seem an attractive way of deciding the problems that undoubtedly arise when such relationships break up. But the right solution involves questions of social policy which are for legislators to determine.

(Emphasis added, citations omitted.)

139    In Napier (decided in 1980), the deceased, who died on 1 September 1975, had lived with the appellant for some 14 years as his de facto wife in a house owned by him. The evidence was that the de facto husband had purchased an investment property in the name of his de facto wife with the arrangement being that she would hold the property for ‘as long as she lived’ and that it would then revert back to the de facto husband. The ‘presumption’ of advancement did not apply because the couple were not married and in any event, the High Court unanimously held that the evidence demonstrated an intention on the part of the de facto husband to retain a residual beneficial interest in the de facto wife’s life interest. Only some brief observations of the Court need repeating.

140    In the lead judgment, Aickin J stated the principles to be applied (at 158):

The law with respect to resulting trusts is not in doubt. Where property is transferred by one person into the name of another without consideration, and where a purchaser pays the vendor and directs him to transfer the property into the name of another person without consideration passing from that person, there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the case may be. This proposition is subject to the exception that in the case of transfers to a wife or a child (including someone with respect to whom the transferor or purchaser stands in loco parentis) there is a presumption of advancement so that the beneficial as well as the legal interest will pass. Each of the presumptions may be rebutted by evidence. It is, however, well established that no presumption of advancement arises in favour of a de facto wife: see Rider v Kidder (1805) 10 Ves Jun 360; 32 ER 884; Soar v Foster (1858) 4 K & J 152; 70 ER 64 and Allen v Snyder [1977] 2 NSWLR 685, especially at 690.

(Emphasis added.)

141    His Honour then noted (at 159) that:

The present case is one in which “unaided by evidence of actual intention” there would be a resulting trust in favour of the appellant. In the courts below it was held that the presumption of a resulting trust was, in the circumstances, rebutted as to the entire interest in the property. …

142    The courts below had placed significant emphasis on the fact that the de facto wife had agreed to add to her will by codicil, provision for the property to revert back to the de facto husband. This was said to evidence an intention that the wife would take as the absolute owner. Aickin J, with whom the Court agreed, held instead that the presumption of a resulting trust was only rebutted by the evidence to the extent of her life interest (at 160):

The evidence, the critical parts of which I have set out above, does not, in my opinion, do more than rebut the presumption of a resulting trust in respect of the house property during the lifetime of the deceased. The reference to the codicil does not, in my opinion, bear the weight which has been placed upon it.

143    In a concurring judgment, Gibbs J cited Lord Hodson’s speech in Pettitt (at 811) for the proposition (at 154) that:

… where evidence has been given as to the intentions with which the parties effected the transaction, it is unlikely that the question whether or not there is a presumption of advancement will be important… For if there is a presumption, it is only prima facie, and evidence may be given to rebut it …

144    In Calverley (decided in 1984), the High Court (Gibbs CJ, Mason, Brennan, Murphy and Deane JJ) considered whether the ‘presumption’ of advancement should be extended to apply to de facto couples. The case is now good authority that it does not. In four separate judgments the Court expressed a number of views on the enduring role of the presumptions with the judgments of Mason and Brennan JJ, and Deane J forming a majority on a number of important points, while also diverging in significant respects.

145    Mr Calverley and Miss Green lived together for about 10 years in a de facto relationship. At first they lived in a house owned by Mr Calverley. Later they decided to move to another area if they could find a house that he could afford to buy. They found a house, but Mr Calverley had difficulty obtaining finance. He told Miss Green that the finance company required the purchase to be in their joint names. Money was then raised on a mortgage under which the parties were jointly and severally liable to make repayments. It was agreed between them that Mr Calverley, in fact, would make the repayments and he did so while Miss Green was to meet the day to day household expenses which she did. The house was purchased by Mr Calverley paying the deposit out of his own funds and the balance being raised on the mortgage. The parties were registered as joint tenants and subsequently the relationship broke down. Miss Green then brought proceedings for the sale of the property and distribution of the proceeds equally in accordance with their joint legal interest. Mr Calverley cross-claimed seeking a declaration that Miss Green held her interest on trust for him. The trial judge found for Mr Calverley holding that the property had been put in the joint names for the purpose of enabling finance to be raised and not to confer a beneficial interest on Miss Green (at 246). The New South Wales Court of Appeal reversed this decision, finding no basis to infer any common intention that Miss Green’s interest was to be held on trust and ruled that the legal status quo should prevail.

146    A majority of the High Court (Gibbs CJ at 253, Mason and Brennan JJ at 262-263 and Deane J at 271) held that the decisions of both courts below should be set aside, instead finding that the parties were equitable tenants in common to the extent of their respective contributions to the purchase price.

147    Gibbs CJ reached this conclusion first by holding that the ‘presumption’ of advancement should apply in this case to a de facto couple (at 248-251) while subsequently finding that the evidence that Mr Calverley had only considered putting the property jointly in Miss Green’s name to secure finance was sufficient to rebut the ‘presumption’ (at 251-252). In finding that the ‘presumption’ of advancement should be so extended, the Chief Justice examined the historical basis for the ‘presumption’ and considered that its contemporary basis had not been adequately expounded (at 348). His Honour then adopted the reasoning of Dixon CJ in Wirth (at 249-250), noting:

In Wirth v. Wirth Dixon C.J. put the law on a more rational basis.

…

… Dixon C.J. said:

“While the presumption of advancement doubtless in its inception was concerned with relationships affording ‘good’ consideration, it has in the course of its growth obtained a foundation or justification in the greater prima facie probability of a beneficial interest being intended in the situations to which the presumption has been applied.”

…

… the principle as stated by Dixon C.J. is intelligible and is likely to lead to a just result and should in my opinion be accepted. The presumption should be held to be raised when the relationship between the parties is such that it is more probable than not that a beneficial interest was intended to be conferred, whether or not the purchaser owed the other a legal or moral duty of support. It is true that this may require a reconsideration of the correctness of the actual results reached in some of the earlier cases, but to regard that as a barrier to acceptance of the principle would be to treat the established categories as frozen in time. As Dixon C.J. said, that would not be characteristic of the doctrines of equity.

(Emphasis added.)

148    The Commissioner’s argument mirrors the reasoning of Gibbs CJ in that he considers the modern justification for the presumptions to be the prima facie probability in the circumstances of each case that a beneficial interest was (or was not) intended to be gifted, and further that such prima facie probability does not exist when spouses purchase their matrimonial home.

149    In their joint judgment, Mason and Brennan JJ imported into their statement of the operation of the presumptions a passage from Lord Upjohn in Pettitt which the Commissioner relies on for his argument that the ‘presumption’ of advancement no longer applies to the matrimonial home (at 259):

When two or more purchasers contribute to the purchase of property and the property is conveyed to them as joint tenants the equitable presumption is that they hold the legal estate in trust for themselves as tenants in common in shares proportionate to their contributions unless their contributions are equal …

This is the basic presumption, though it may be displaced in appropriate cases by the presumption of advancement or, perhaps, qualified by an inference of the kind espoused by Lord Upjohn in Pettitt v. Pettitt. His Lordship said:

“... where both spouses contribute to the acquisition of a property, then my own view (of course in the absence of evidence) is that they intended to be joint beneficial owners and this is so whether the purchase be in the joint names or in the name of one. This is the result of an application of the presumption of resulting trust. Even if the property be put in the sole name of the wife, I would not myself treat that as a circumstance of evidence enabling the wife to claim an advancement to her, for it is against all the probabilities of the case unless the husband’s contribution is very small.”

In some instances, the drawing of such an inference might work to the disadvantage of a wife who holds a legal interest in property greater than a joint tenancy and who would otherwise be entitled to rely upon the presumption of advancement to assert as large a beneficial interest as the legal interest which she holds. It is not necessary now to consider whether the founding of a joint beneficial tenancy in husband and wife upon their inferred intention “is the result of an application of the presumption of resulting trust”. What is presently material is whether it is appropriate to draw the inference that the parties intended that they should have beneficially a joint tenancy in the Baulkham Hills property – an interest corresponding with the interest vested in them at law.

It may be conceded that Lord Upjohn’s inference reflects the notion that both spouses may contribute to the purchase of assets during the marriage (as they often do nowadays) and that they would wish those assets to be enjoyed together during their joint lives and to be enjoyed by the survivor when they are separated by death. Such an inference is appropriate only as between parties to a lifetime relationship (like the presumption of advancement of a wife …)

(Citations omitted.)

150    Critically however, their Honours held that the ‘presumption’ of advancement could not apply to a de facto couple such that (at 260):

… it is unnecessary now to decide whether Lord Upjohn’s inference should qualify the presumption of advancement in favour of a wife, but it can be said that the antiquity of the presumption of advancement does not preclude the elevation of such an inference to the level of a presumption to be applied where the absence of the spouses’ common intention leaves room for its operation. The doctrines of equity are not ossified in history: cf. Wirth v. Wirth …

(Emphasis added, citations omitted.)

151    Their Honours then considered whether the presumption of a resulting trust had in this particular case been rebutted and set out the principles for discerning any contrary intentions (at 261-262):

… The equitable presumption can be rebutted or qualified by evidence of a contrary intention common to the contributors of the purchase price. When a common intention is in issue, it is not ordinarily to be found in an uncommunicated state of mind; it is to be inferred from what the parties do or say.

It may be that evidence of a sole purchaser’s own state of mind at the time of the purchase can be received from him when the court is seeking to ascertain his intention (Martin v. Martin) but in the search for the common intention of two or more purchasers at that time, light will rarely be shed by evidence of their uncommunicated states of mind. Lord Diplock’s speech in Gissing v. Gissing contains the principle ordinarily to be applied:

“As in so many branches of English law in which legal rights and obligations depend upon the intentions of the parties to a transaction, the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party. On the other hand, he is not bound by any inference which the other party draws as to his intention unless that inference is one which can reasonably be drawn from his words or conduct. It is in this sense that in the branch of English law relating to constructive, implied or resulting trusts effect is given to the inferences as to the intentions of parties to a transaction which a reasonable man would draw from their words or conduct and not to any subjective intention or absence of intention which was not made manifest at the time of the transaction itself. It is for the court to determine what those inferences are.”

The Court of Appeal correctly took the time of the acquisition of the Baulkham Hills property as the material time for determining the beneficial interests of the parties. The evidentiary material from which the court might have drawn an inference as to the intention of the parties included their acts and declarations before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction. Evidence of those acts and declarations were admissible either for or against the party who did the act or made the declaration, but any subsequent declarations would have been admissible only as admissions against interest …

(Citations omitted.)

152    In this instance, their Honours agreed with the conclusion of the Court of Appeal that the evidence did not disclose a common intention, but held (at 262) that the error in the Court’s approach had been to not first apply the presumption and then consider whether it was rebutted by evidence of intention.

153    It is notable from Deane J’s judgment that his Honour took care to identify the specific parts of Mason and Brennan JJ’s reasons with which there was agreement. At 268, his Honour considers the joint judgment gives ‘convincing reasons’ why the ‘presumption’ of advancement should not be extended to de facto couples. At 271, Deane J expresses agreement with the joint judgment as to the rebuttal of the presumptions and the regard to be had to Mr Calverley’s repayment of the mortgage. Nowhere in the judgment does Deane J express agreement with Lord Upjohn’s inference from Pettitt as cited by Mason and Brennan JJ.

154    Deane J does however express his own doubts about the utility of the presumptions, remaining steadfast in the view however that they establish an important civil onus of proof in cases such as the present (at 266):

... Even in those times however, there was much to be said for the view that, except where they served the same function as a civil onus of proof and operated to resolve a factual contest in circumstances where the relevant evidence was either uninformative or truly equivocal, the worth of those presumptions was at best debatable. …

…

The relevant presumptions are, however, too well entrenched as “land-marks” in the law of property (per Eyre L.C.B., Dyer v. Dyer) to be simply discarded by judicial decision. Indeed, the law embodying them has been said in this Court to be so clear that it “can no longer be the subject of argument”: per Dixon C.J., McTiernan, Williams, Fullagar and Taylor JJ., Charles Marshall Pty. Ltd. v. Grimsley. If they are to be modified to avoid prima facie assumptions that a person intends the opposite to that which he does, it must be by legislative intervention which will not disturb past transactions which may conceivably have been structured by reference to them. …

(Emphasis added, citations omitted.)

155    As to the steps in the analysis and the evidence that may rebut the presumptions his Honour said (at 269):

In these circumstances, the starting point for the determination of the extent of the respective beneficial interests of Mr. Calverley and Miss Green in the Baulkham Hills property was a presumption that the property was held upon resulting trust for them according to their respective contributions to the purchase price. That presumption could be rebutted or qualified by admissible evidence which indicated either that Miss Green was intended to have a full half beneficial interest in the property or that Mr. Calverley was intended to have the whole beneficial interest. In Charles Marshall Pty. Ltd. v. Grimsley, it was said in the judgment of the Court (Dixon C.J., McTiernan, Williams, Fullagar and Taylor JJ.):

“The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase ... or so immediately thereafter as to constitute a part of the transaction.”

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

(Citations omitted.)

156    Importantly, his Honour held that it was no longer the case that the presumptions ‘should not give way to slight circumstances’. Despite proceeding to hold that modern experience may undermine any rational basis for the continued operation of either presumption, his Honour reiterated his view that their role as a civil onus of proof should be preserved (at 270):

… Indeed, in a case where a presumption of resulting trust or a “presumption” of advancement applies in circumstances where the relationship between the parties does not, as a matter of modern experience, provide any firm rational basis for presuming either an intention to retain the beneficial interest or an intention to confer it on the other party, the presumption may be found to be of practical importance only in those cases where the evidence, including evidence of the actual relationship between the parties, does not enable the Court to make a positive finding of intention: cf. per Gibbs A.C.J. in Napier and per Lord Upjohn, Pettitt v. Pettitt

(Citations omitted.)

157    In the above passage Deane J also cites Lord Upjohn’s speech in Pettitt in which, in addition to the inference cited by Mason and Brennan JJ, his Lordship said (at 813-814):

… If there is no such available evidence then what are called the presumptions come into play. They have been criticised as being out of touch with the realities of today but when properly understood and properly applied to the circumstances of today I remain of opinion that they remain as useful as ever in solving questions of title. First, then, in the absence of all other evidence, if the property is conveyed into the name of one spouse at law that will operate to convey also the beneficial interest and if conveyed to the spouses jointly that operates to convey the beneficial interest to the spouses jointly, i.e. with a benefit of survivorship, but it is seldom that this will be determinative.

(Emphasis added.)

158    Applying those principles to the facts, Deane J concluded that the evidence of the case did not disclose any intention capable of rebutting the presumption, being the presumption of a resulting trust, in that case (at 271):

… Even so regarded however, the presumption remained unrebutted by the evidence. In that regard, the fact that Miss Green was added as a purchaser and mortgagor to facilitate the arrangement of finance is equivocal (“amphibolous”: Martin) in that it can be viewed as either an explanation of her acquisition of a beneficial interest in the property or as an explanation of her being but a trustee for Mr. Calverley. …

(Citations omitted.)

159    Murphy J in dissent thought that the presumptions were inappropriate to ‘our times’ and the matter was better dealt with by the Family Law Act 1975 (Cth). In the absence of such legislation his Honour considered the legal title to be the most accurate reflection of the prima facie probability of the parties’ intent unless circumstances prevailed to displace it (at 265):

… Transfer of the title of property wholly or partially to another is commonly regarded as of great significance, especially by those in de facto relationships. The notion that such a deliberate act raised a presumption of a trust in favour of the transferor, would astonish an ordinary person.

In the absence of those presumptions, the legal title reflects the interests of the parties, unless there are circumstances (not those false presumptions) which displace it in equity. False presumptions which override the registered title are destructive of an orderly Torrens title system and should not be tolerated. The Torrens system permits the protection of interests by the use of caveats, so that the registered title reflects the true position and prevents the Torrens system becoming as complex as the old system.

160    In Currie v Hamilton [1984] 1 NSWLR 687 and Delehunt (decided in 1986), the Supreme Court of New South Wales and the High Court respectively considered the beneficial interests of de facto couples where both parties had contributed to the purchase prices of their homes. In stating the principles to be applied, both McClelland J in Currie (at 690) and Gibbs CJ in Delehunt (at 472, and with whom Wilson, Brennan Deane and Dawson JJ agreed), acknowledged the application of the ‘presumption’ of advancement to certain relationships, albeit not the ones in those cases.

161    In Nelson (decided in 1995), a mother paid the purchase price for a house which was transferred into the names of her adult son and daughter. The purpose of the arrangement was to enable the mother, if she wished, subsequently to purchase another house with the benefit of a subsidy under the Defence Service Homes Act 1918 (Cth). She would not have been eligible for a subsidy under that Act if she owned another house. She did later purchase another house and received a subsidised loan under the Act, falsely declaring that she did not own or have a financial interest in a house other than the one for which the loan was sought. The first property was sold and the mother and her son sought a declaration and order that the proceeds be paid to her accordingly. The daughter sought a declaration that she had a beneficial interest in the proceeds of sale. It was held that while the ‘presumption’ of advancement applies in the case of gifts by a mother to a child, (as well as a husband to a wife), in this case it was rebutted by the evidence of the mother’s intention to hold the beneficial interest herself.

162    At 547, Deane and Gummow JJ commenced a consideration of the presumptions with the proposition that:

[t]he presumptions operate to place the burden of proof, if there be a paucity of evidence bearing upon such a relevant matter as the intention of the party who provided the funds for the purchase. …

Their Honours then said that the operation of a ‘presumption’ of advancement may be rebutted by evidence of the actual intention at the time of the purchase of the parent or other person who provided the purchase money, citing Charles Marshall (at 364-365, see above at [90]). Evidence also may be given to support the presumption of advancement, citing, amongst other things, Stewart Dawson & Co (Vic) Pty Ltd v Commissioner of Taxation (Cth) (1933) 48 CLR 683. Their Honours said that where the presumption of advancement is rebutted, the trust which then is enforced is a resulting trust, not an express trust. The trust thus is outside the operation of the requirement for writing in s 7 of the Statute of Frauds 1677 (Eng) and its modern Australian equivalent in property law legislation (in this case, s 34 of the Property Law Act (WA)). It followed that oral evidence was admissible to rebut the presumption of gift and also to affirm the operation of the presumption of resulting trust. As noted above (at [93]), their Honours cited the explanation offered by Professor Scott for this somewhat ‘artificial’ reasoning.

163    Their Honours described (at 548) the presumptions of advancement and resulting trust as entrenched ‘land marks’ in the law of property with many disputes being resolved and transactions effected on that foundation. Further, their Honours said (at 548-549):

… We prefer to approach this appeal on the footing that the existence of a presumption of advancement of her children by Mrs Nelson was properly accepted in the Supreme Court.

In a case such as the present, the presumption of advancement may be of practical importance only if the evidence, including that of the actual relationship between the parties, does not enable the court to make a positive finding of intention.

(Emphasis added, citation omitted.)

Their Honours considered, however, that it was possible in that case to make a positive finding of intention.

164    Dawson J also acknowledged and discussed the existence of the ‘presumption’ of advancement at some length (at 574-576), focussing on the question of whether or not there was any reason to suppose that the probability of a parent intending to transfer a beneficial interest in property to a child was any the more or less in the case of the mother than in the case of a father. The main question for his Honour as with the plurality was the effect of the mother’s illegal purpose in transferring the property to her children, which she was forced to reveal to rebut the ‘presumption’ of advancement.

165    While observing that the case would have yielded the same result whether or not the ‘presumption’ of advancement applied, Toohey J (at 583-584) also focussed his analysis on whether the ‘presumption’ applies to gifts from a mother to her adult children. His Honour also briefly considered some of the authorities, in particular, the approach to the basis of the ‘presumption’ adopted by Gibbs CJ in Calverley, that the ‘presumption’ should apply where it is more probable than not that a gift was intended (see above at [147]). Toohey J considered (at 586) that:

At the same time the approach taken by Gibbs CJ does have a question begging aspect and the uncertainty it generates is perhaps evidenced by the fact that in Calverley v Green only the Chief Justice held that the presumption of advancement applied to a de facto relationship.

166    In an analysis between 583-585, his Honour considered it was important for the Court to resolve the issue of advancement in the context of the case before it because of uncertainty as to whether advancement from a mother would be treated in the same form as advancement from a father, given the historical obligation of the father to provide for children. His Honour agreed that it was inappropriate to distinguish between the parents and the presumption should apply to the mother.

167    McHugh J (at 601-603) said:

The presumption of advancement is a consequence of the equitable rule that, when a person transfers property without consideration or purchases property and directs the vendor to transfer the property into the name of another, the transferee is presumed to hold the property on a resulting trust for the transferor. No doubt in earlier centuries, the practices and modes of thought of the property owning classes made it more probable than not that, when a person transferred property in such circumstances, the transferor did not intend the transferee to have the beneficial as well as the legal interest in the property. But times change. To my mind – and, I think, to the minds of most people – it seems much more likely that, in the absence of an express declaration or special circumstances, the transfer of property without consideration was intended as a gift to the transferee. That being so, there is a strong case for examining whether the presumption of a resulting trust accords with the effect of contemporaneous practices and modes of thought. If that presumption goes, there is no compelling reason for a presumption of advancement in the case of transfers of property by parents to children. Indeed, the presumption of advancement itself may not accord with contemporaneous practices and modes of thought.

A presumption is a useful aid to decision making only when it accurately reflects the probability that a fact or state of affairs exists or has occurred. As Murphy J said in Calverley v Green “[p]resumptions arise from common experience ... As standards of behaviour alter, so should presumptions”. If the presumptions do not reflect common experience today, they may defeat the expectations of those who are unaware of them. Nevertheless, as Deane J pointed out in Calverley, the presumptions are “too well entrenched as ‘landmarks’ in the law of property ... to be simply discarded by judicial decision”. Although the operation of the presumptions may sometimes defeat the expectations of transferors and transferees, it may be that many transfers of property have been made on the basis of the presumptions. If evidence was no longer available to confirm that property had been transferred to achieve a result in accord with the presumptions, serious injustice might be done to those who have dealt in the property. In the absence of knowledge as to what effect the abolition of the presumptions would have on existing entitlements, the better course is to leave reform of this branch of the law to the legislature which can, if it thinks fit, abolish or amend the presumptions prospectively.

The appellant contends that, if the presumption of advancement continues as a legal principle, it should be restricted to cases in which the inference of advancement would be drawn in the absence of evidence of intention. This is another way of suggesting that the presumption does not arise unless the circumstances surrounding the bare relationship of the parties are consistent with the presumption. It would mean that where, for example, “a widowed mother, of modest means, makes a payment of substantially the whole of her assets ·to contribute to the purchase of real estate, and legal title is vested in her adult, able-bodied sons”, no presumption of advancement would arise because the mother had no moral obligation to give her assets to her adult and able-bodied sons.

If the presumption of advancement could be displaced by the objective circumstances of the relationship, the appellant might be able to succeed without disclosing her illegal purpose, for the facts of her case closely resemble the facts of the above example. But to accept the appellant’s contention would seriously undermine the operation of the presumption of advancement. It would allow it to operate only where the surrounding circumstances were consistent with the presumption. It would also substitute an inquiry into the circumstances of the case for the automatic operation of the rule, thus increasing the uncertainty of property titles and promoting litigation. As long as the presumption of advancement continues to apply to property dealings, it should apply whenever the parties stand in a relationship that has been held to give rise to the presumption. The circumstances surrounding a relationship may be used to rebut the presumption, but they cannot be used to prevent it from arising.

(Emphasis added.)

168    In Black Uhlans Incorporated v Crime Commission (NSW) [2002] NSWSC 1060, the plaintiff motorcycle club sought as against the New South Wales Crime Commission a declaration that the club’s member in whose name its premises had been purchased was held on trust in favour of it, either as an express trust or resulting trust. Campbell J (as his Honour then was) discussed the interaction between resulting trusts and a ‘presumption’ of advancement (at [128]):

128    Judicial findings about who holds the beneficial interest in land are made with the assistance of presumptions. The first is “… that prima facie the beneficial ownership of real property is commensurate with the legal title.” (Currie v Hamilton (1984) 1 NSWLR 687 at 690 per McLelland J.) In some situations this first presumption is displaced by a presumption of a resulting trust, while in other factual situations a presumption of advancement operates. The fundamental nature of the presumption that the beneficial interest is the same as the legal interest is illustrated in the explanation of Deane J in Calverley v Green (1984) 155 CLR 242 at 267 of how the presumption of advancement operates.

169    His Honour proceeded to adopt the statement of Deane J in Calverley (at 267 cited above at [65]) and that of Deane and Gummow JJ in Nelson (at 547) as to the onus of proof role that the presumptions play (see above at [162]), as well as the statement from Charles Marshall (at 365) as to the requisite standard of evidence required to rebut the presumptions (see above at [90]).

170    In Ebner (decided in 2003), Mrs Ebner, the wife of a bankrupt, sought as against the bankrupt’s official trustee delivery up of personal property which had been seized by the trustee which he contended was at least in part property of the bankrupt estate despite assertions of the bankrupt that he owned no personal property apart from a few items of clothing. Finkelstein J rejected the evidence of Mrs Ebner that she had paid for the items, but noted that in the alternative, Mrs Ebner relied upon the ‘presumption’ of advancement to displace the presumption of resulting trust in favour of her husband as the person who paid the purchase price of the items. His Honour cited Dyer and noted that that case concerned real property but the rule applied also to personal property, citing various authorities. His Honour said (at [20]) that Mrs Ebner’s argument broke down on the facts of the case. His Honour held that he did not accept that the ‘presumption’ of advancement could easily be applied in relation to household goods for use or display in the family home, being personal property acquired for the use or enjoyment of both parties to a marriage which was sufficient to rebut the presumption as noted in Silver v Silver [1958] 1 WLR 259 in the context of real property. The rationale applied was that in the case of family assets acquired for joint use, the presumption can easily be rebutted as it was different from the case where the property acquired was for the wife’s exclusive personal use. This proposition goes some way to supporting the Commissioner’s contention that the ‘presumption’ does not apply or is rebutted in the context of the matrimonial home, though it should be noted that Silver predates Pettitt and Gissing, and Finkelstein J did not refer to any of the Australian authorities discussed above.

171    Cummins (decided in 2006) concerned a barrister who became bankrupt in 2000, having failed to lodge tax returns for about 45 years. In 1987, he transferred his legal and beneficial interest as joint tenant in the matrimonial home to his wife. The purchase price of the matrimonial home had been contributed by the bankrupt and his wife in proportions of about 23% and 76.3% respectively some years before the transfer of the husband’s interest to the wife. The trustee in bankruptcy sought declarations that the transfer was void against them because the ‘main purpose’ had been to place the property out of the reach of creditors. The trustees were successful at first instance, but failed on appeal. In the appeal, the High Court examined whether the bankrupt’s main purpose was to prevent the transferred property becoming divisible amongst his creditors and, secondly, whether the bankrupt and his wife held title in the home as joint tenants or beneficial tenants in common in shares in the portions to which they had contributed to the purchase price. Much of the judgment was devoted to the proper construction of s 121(1)(b) of the Bankruptcy Act 1966 (Cth), in the circumstances of the case.

172    In the context of the issue presently under consideration, it was held (at [65]-[67]) that evidence of subsequent statements of intention, not being admissions against interest were inadmissible to rebut the ‘presumption’ of an intention of advancement in family relation cases. But evidence of facts as to subsequent dealings and of surrounding circumstances of the transaction were admissible in determining whether any presumption of resulting trust or advancement might be rebutted by evidence manifesting a contrary intention. The relevant transaction had been a composite of the purchase of the property followed by construction of a dwelling house occupied as the matrimonial home for many years prior to the impugned transaction. The facts were inconsistent with the displacement of the joint tenancy that existed before the transfer in 1987 in favour of an equitable tenancy in common of which the wife would have held the larger share.

173    Significantly, the Court, Gleeson CJ, Gummow, Hayne, Hayden and Crennan JJ, in a joint judgment noted (at [55]) the generally accepted principles affirmed for Australia in Calverley to the effect that:

if two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money. … Further, the presumption of advancement of a wife by the husband has not been matched by a presumption of advancement of the husband by the wife. The “presumption of advancement”, where it applies, means that the equitable interest is at home with the legal title, because there is no reason for assuming that any trust has arisen.

(Emphasis added, citations omitted.)

174    That distinction was pertinent in Cummins, as it was the wife who had contributed the greater proportion to the initially jointly held property, not the husband.

175    The Court asked what was there to conclude at the time of the transactions that the face of the register did not represent the full state of the ownership of the property and that the ownership as joint tenants was at odds with, and subjected to, the beneficial ownership established by trust law? The Court noted that no part of the purchase price was paid by Mrs Cummins in the August 1987 transfer such that the transfer of the property to her was voluntary. However, she did pay the ad valorem stamp duty on the contract and the valuer’s fee. The High Court considered it unlikely that she would have incurred these costs if she believed she already held approximately a two-thirds beneficial interest. In any event, the Court found (at [58]) that the matters suggested that in August 1987, the parties were proceeding on the conventional basis that the equitable estate was at home with the registered estate of joint tenancy. The Court said (at [59]) that it was important for a consideration of the issues concerning the operation, if any, of the principles with respect to resulting trusts that the registered title was that of joint tenants rather than tenants in common. The severance effected in August 1987 had the effect of putting to an end the incident of survivorship.

176    In the context of discussion of the effect of joint tenancy versus tenancy in common, the Court considered Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549 but in the commercial context of that case there was no scope for the operation of a ‘presumption’ of advancement. Importantly, their Honours then considered the well-known statement of the Court in Charles Marshall (at 365) concerning the admissibility of evidence to rebut the presumptions (quoted above at [90]) and approved in Calverley (at 262 and 269). Their Honours qualified this principle as follows (at [65]):

In Charles Marshall, the plaintiffs were daughters of the donor and the Court said that the presumption of an intention of advancement, that they be made beneficial as well as legal owners of the shares, might be rebutted by evidence manifesting a contrary intention. Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ said of the rebuttal of presumptions by manifestation of a contrary intention:

“Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase (in this case before or at the time of the acquisition of the shares by allotment) or so immediately thereafter as to constitute a part of the transaction.”

(Emphasis [in original].)

However, as Malayan Credit illustrates, whilst evidence of subsequent statements of intention, not being admissions against interest, are inadmissible, evidence of facts as to subsequent dealings and of surrounding circumstances of the transaction may be received.

(Citations omitted.)

177    There is then a passage on which much turns in this case. At [71]-[73], the Court said:

70    In the present case, Sackville J referred in the second judgment to the operation of statute law to produce divergent outcomes in particular classes of case. In particular, his Honour referred to the regimes established by the Family Law Act 1975 (Cth), s 79, and, in New South Wales, by the Property (Relationships) Act 1984 (NSW). The New South Wales statute provides for the declaration of title or rights in respect of property held by either party to a “domestic relationship”. That term is broadly defined in s 5 as extending beyond the already broad definition of de facto relationship in s 4. The extent to which these statutory innovations may bear upon further development of the principles of equity is a matter for another day.

71    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 labor 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.

(Footnote omitted.)

72    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.

73    In the present litigation, the case for the disinclination of equity to intervene through the doctrines of resulting trusts to displace the incidents of the registered title as joint tenants of the Hunters Hill property is strengthened by further regard to the particular circumstances. Solicitors acted for Mr and Mrs Cummins on the purchase in 1970. The conveyance was not uneventful. The contract was dated 14 April 1970 and was settled on 27 July 1970, but only after the issue by the solicitors for the vendor on 10 July of a notice to complete. It is unrealistic to suggest that the solicitor for the purchasers, Mr and Mrs Cummins, did not at any point advise his clients on the significance of taking title as joint tenants rather than as tenants in common. Secondly, use of the valuation obtained in 1987 to fix what was shown as the purchase price for the acquisition by Mrs Cummins of the interest of her husband is consistent, as already indicated, with the conventional basis of their dealings which treated the matrimonial home as beneficially owned equally.

(Emphasis added, citations omitted.)

Does the ‘presumption’ of advancements apply to the matrimonial home?

178    The first question raised by this proceeding is whether, in relation to the matrimonial home, the High Court has departed from the ‘presumption’ of advancement despite relatively clear authority that it does apply to the matrimonial home. Such a departure, in light of this history, might be thought to require a degree of clarity. The Commissioner says that such clarity is to be found in Cummins. For Ms Bosanac, it is contended that Cummins does not provide any exception to the ‘presumption’ of advancement in the case of the matrimonial home.

179    The Commissioner contends that the High Court decided that where a husband and wife each contribute to the purchase of a matrimonial home and title is taken in the name of one of them, it may be inferred that it was intended that each spouse should have a one-half interest in the property regardless of the amounts contributed by them. This, the Commissioner says, where the Court unanimously accepted the observations of Professor Scott, is the effect of [71] cited above. He argues that the passage (at [71]) should be given precedence over the decisions of Wirth and Martin delivered more than 45 years ago.

180    For Ms Bosanac it is contended that a proper reading of [71] in Cummins above is that the only portion clearly accepted was the first fairly benign observation by Professor Scott as to how it might be that the extent of funds or labour contributed by spouses may often be a matter of chance. Strictly speaking, I think Ms Bosanac is correct to say that is the portion that the High Court expressly accepted and then went on to add the words ‘to that may be added the statement in the same work’ and added the second portion of [71].

181    But if that be wrong, and more significantly, the words used (if they were adopted) by the High Court were ‘may be inferred’ (Emphasis added.). This would appear not to lay down an absolute rule but is a statement of a discretion available to a court which it may apply. It is not a statement of general application such as it must be inferred. Professor Scott is an American writer and the use of the word ‘may’ has the same effect in American law as it does in Australian law: see Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995).

182    The relevant ratio from Cummins is that there is no occasion for equity to fasten on to the registered title interest held by joint tenants, a trust obligation representing different proportionate interests as tenants in common. Nothing about the reference to the work of Professor Scott (at [71]) was sufficiently clear to indicate an abolition of the very longstanding ‘presumption’ of advancement or to rid it of all meaning in the context of marriage and the matrimonial home. I do not consider there is a basis to draw from [71] and [72] the principle of general application that the Commissioner contends for.

183    Ms Bosanac says Cummins stands only for the proposition that as a matter of discretion, the ‘presumption’ of advancement may not apply in circumstances where the matrimonial home is taken in the names of both spouses as joint tenants. For Ms Bosanac it is alternatively argued that Cummins is not authority for the ‘presumption’ of advancement not applying in the case of a matrimonial home (meaning a home jointly used), because the passage in the reasoning that quotes the observations of Professor Scott was not a ‘necessary step’ in the course of the Court reaching its conclusion such that it was therefore obiter dictum. This, in circumstances where the ‘presumption’ advancement did not arise on the facts of the case. Although Farah Constructions (at [134]) makes it clear the Court should not ignore ‘long established authority and seriously considered dicta of a majority of [the High] Court’, Ms Bosanac contends that Professor Scott’s quotation represents neither long-established authority nor seriously considered obiter dictum and therefore should not be adopted in the face of binding authority from the High Court to the contrary.

184    The question is not without its difficulty. The question of the title to the matrimonial home at the time of purchase being in the name of only one spouse was not the question for the High Court in Cummins. Nonetheless, it does appear to have accepted the correctness of the second half of the quotation from Professor Scott.

185    I am unable to accept the contention that it can be concluded that the passage relied upon by the Commissioner stands for the principle that the ‘presumption’ of advancement is no longer a part of Australian law in relation to the matrimonial home. Rather it seems to me to the contrary, as noted above, in Cummins (at [55]) the longstanding judgment in Calverley acknowledging the ‘presumption’ of advancement was expressly accepted:

The generally accepted principles in this field, affirmed for Australia by Calverley v Green, were expressed as follows in that case by Gibbs CJ:

“[I]f two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money.”

Further, the presumption of advancement of a wife by the husband has not been matched by a presumption of advancement of the husband by the wife. The “presumption of advancement”, where it applies, means that the equitable interest is at home with the legal title, because there is no reason for assuming that any trust has arisen.

(Citations omitted.)

Significantly this passage adopted from Calverley frames the operation of the ‘presumption’ of advancement in terms only of the relationship between the parties and discloses no recourse at all to the species of property in determining when it will apply.

186    In Cummins the ‘presumption’ of advancement did not arise (nor was it asserted) because on the facts of that case, the wife had initially contributed more than her bankrupt husband to the matrimonial home purchase (76.3%) before he transferred his share to her. As noted above, the Court asked what was there to conclude at the time of the transactions that the face of the register did not represent the full state of the ownership of the property and that the ownership as joint tenants was at odds with, and subjected to, the beneficial ownership established by trust law? The property was jointly owned by the husband and his wife but the wife contended for a resulting trust in her favour of the husband’s share. This was what gave rise to the ‘resulting trust issue’ identified by the High Court. There was no such evidence and therefore the wife’s contention that the husband’s share was always held on resulting trust for her could not be sustained.

187    Secondly, Professor Scott had pointed out the obvious fact that it was purely accidental, in a marriage where both husband and wife had purchased the matrimonial home, whose money went to paying the purchase price and whose money paid the groceries and other household expenses. The High Court agreed, concluding there was no room to infer a resulting trust simply because Mrs Cummins happened to use more of her money to purchase the property than her husband, particularly, as the High Court noted at [72], where the title had been taken as joint tenants (and not as tenants in common).

188    One of the difficulties in accepting that Cummins was intended to go as far as the Commissioner suggests is that the classic statements of the ‘presumption’ of advancement in Wirth (at 237-238) and Martin (at 303) have not been expressly rejected by the High Court. To the contrary, Australian courts have consistently recognised the ‘presumption’ of advancement as a landmark of Australian law: Hepworth (at 314-315); Doohan (325-326); Snyder (at 690); Napier (at 158); Calverley (at 247, 256 and 266-268); Currie (at 690); Delehunt (at 472); Nelson (at 547, 574-576, 583-586 and 600-603); and Cummins (at [55]).

189    In oral submissions, the Commissioner conceded the point that the use of the word ‘may’ by Professor Scott in the passage quoted by the High Court in Cummins indicates that it is not an immutable rule that the ‘presumption’ of advancement can now never apply to the matrimonial home. However, he argues that the discretion conferred by ‘may’ is intended to be for those circumstances where the wife is able to adduce additional evidence beyond the bare transfer of the matrimonial home into her name to demonstrate that a ‘presumption’ of advancement should arise. With respect, to so hold would be to do what McHugh J warned against in Nelson by substituting an inquiry into the circumstances of the case for the ‘automatic operation of the rule.’ As his Honour said (at 603):

As long as the presumption of advancement continues to apply to property dealings, it should apply whenever the parties stand in a relationship that has been held to give rise to the presumption. The circumstances surrounding a relationship may be used to rebut the presumption, but cannot be used to prevent it from arising.

190    As to Lord Upjohn’s observation adopted by Mason and Brennan JJ in Calverley, that where both spouses contribute to the price of the matrimonial home it should be inferred that they intended to hold as joint beneficial owners, the High Court said in Cummins (at [69]):

It is unnecessary for the purposes of the present case to express any concluded view as to the perception by Mason and Brennan JJ of the particular and exclusive significance to be attached to the status of marriage in this field of legal, particularly equitable, discourse. It is enough to note that, as Dixon CJ observed fifty years ago in Wirth v Wirth, in this field, as elsewhere, rigidity is not a characteristic of doctrines of equity. The reasoning of the Privy Council in Malayan Credit is an example of that lack of rigidity.

(Citations omitted.)

A similar observation was made by Mason and Brennan JJ in Calverley (at 260) that it was unnecessary to express a concluded view that resolves the conflict between the ‘presumption’ of advancement and Lord Upjohn’s inference. These statements are clearly obiter dicta, though they must of course be given due consideration.

191    Only a handful of cases have seriously considered the ‘presumption’ of advancement since Cummins. In Anderson, to which detailed reference has already been made, Edelman J considered (at [139]-[153]) the relationships which give rise to a ‘presumption’ of advancement; it did not apply in that case. His Honour also adopted the statement of the ‘presumption’ from Martin (at 303).

192    In Silvia (Trustee) v Williams, in the matter of Williams (Bankrupt) [2018] FCA 189, Wigney J considered the area generally (at [131]-[153]) but made it clear (as in Cummins) that the presumption of advancement could not apply ‘because Patrick, not Georgia, held the legal title.’ Wigney J noted (at [146]) as I have above that the important point to emphasise is that the approval of the statements from Professor Scott’s book (The Law of Trusts) in Cummins, 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 on trust in proportion to the contributions to the purchase price. 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.