Federal Court of Australia

Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427

ORDERS

THE COURT ORDERS THAT:

1.    David Henry Sampson and Maxwell William Prentice of BPS Recovery, Level 18, 201 Kent Street, Sydney, New South Wales 2000, be appointed trustees of the land comprised in certificate of title folio identifier A/318725, at 11 Yarran Street, Punchbowl in the State of New South Wales (Punchbowl Property) pursuant to section 66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act).

2.    The Punchbowl Property be vested in such trustees subject to any incumbrances affecting the entirety of the Punchbowl Property, but free from any incumbrances, if any, affecting any undivided share of shares therein to be held upon statutory trusts for sale under Division 6 of Part 4 of the Conveyancing Act.

3.    The cross-claim be dismissed.

4.    The parties are to confer regarding any further orders, and to provide any proposed orders to the chambers of Abraham J within 7 days.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant is the trustee in bankruptcy for Paul Joe Tannous (Paul Tannous) and was appointed on 22 March 2018, pursuant to a sequestration order. Paul Tannous’ bankruptcy has not yet been discharged. The respondent, Ms Caroline Chahin (née Tannous) (Ms Chahin), is Paul Tannous’ sister.

2    The applicant and respondent are currently registered proprietors as tenants in common in equal shares of the land comprised in certificate of title folio identifier A/318725, which is situated at 11 Yarran Street, Punchbowl NSW 2196 (Punchbowl Property). The applicant became registered proprietor of his share of the Punchbowl Property on 2 July 2020, pursuant to a transmission application lodged as Paul Tannous’ trustee in bankruptcy with the NSW Registrar-General, on the basis that Paul Tannous’ interest in the Punchbowl Property had vested in the applicant under s 58 of the Bankruptcy Act 1966 (Cth). The respondent became a registered proprietor for her share of the Punchbowl Property on 24 July 1992, when she and Paul Tannous became registered proprietors in equal shares.

3    The applicant seeks orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act), for the appointment of trustees for sale of the Punchbowl Property.

4    The respondent opposes that relief and filed a cross-claim which seeks a declaration that Paul Tannous held his share of the Punchbowl Property on trust for the respondent.

5    For the reasons below, I am satisfied that the orders sought by the applicant pursuant to s 66G of the Conveyancing Act should be made.

Factual overview

6    There are a number of agreed facts.

7    As referred to above, Paul Tannous and the respondent are siblings. Paul Tannous was born on 25 January 1969, and his sister, Ms Chahin, on 3 July 1970. Their parents are Youssef Tannous (Mr Tannous) and Hind Tannous (Mrs Tannous).

8    Between about 30 November 1988 and at least 12 May 1995, the respondent was employed with the Commonwealth Bank of Australia (CBA) in various roles, including as a relationship manager and High Value Customer relationship manager.

9    In 2002, the respondent married Pierre Chahin, and they have since had three children.

10    As referred to above, on 22 March 2018, Paul Tannous became bankrupt pursuant to a sequestration order and the applicant was appointed his trustee in bankruptcy.

Purchase of the Punchbowl Property

11    On 17 July 1992, a transfer of the land comprised in certificate of title folio identifier A/318725, being the Punchbowl Property, to Ms Chahin and Paul Tannous as tenants in common in equal shares for consideration of $156,500 (Purchase Price), was executed. Part of the Purchase Price, namely $116,000, was paid from a loan by the respondent and Paul Tannous from the Commonwealth Bank of Australia (92CBA Loan).

12    The 92CBA Loan was secured by:

(1)    a first registered mortgage given by the respondent and Paul Tannous to the CBA over the Punchbowl Property, which was dated 1 July 1992 (CBA Mortgage); and

(2)    a registered mortgage given by Paul Tannous and Mr Tannous over the land in certificate of title folio identifier 3/321267 situated at 26 Hillcrest Street, Wiley Park (Wiley Park Property), which was dated 1 July 1992 (Wiley Park Mortgage).

13    On 24 July 1992, the following documents were registered: the transfer of the Punchbowl Property, being number E633323; the CBA Mortgage, being number E633324; and the Wiley Park Mortgage, being number E633325.

14    The Punchbowl Property was rented to third party tenants from its acquisition in 1992 until at least 2005. The rent received was paid towards loans secured by mortgages over the Punchbowl Property.

15    On 16 October 1995, a discharge of the Wiley Park Mortgage was registered, being number O609139.

2001 Westpac Loan and Guarantee

16    On or about 13 August 2001, Ms Chahin entered into a loan agreement with Westpac Banking Corporation (Westpac) for two loans totalling $160,000 (01WBC Loan), being: $33,500 to refinance the 92CBA Loan and $126,500 for the use of Paul Tannous to buy out his business partner.

17    On 14 August 2001, Paul Tannous executed a guarantee and indemnity in favour of Westpac for the 01WBC Loan limited to $161,000 plus interest and expenses (01WBC Guarantee).

18    Ms Chahin and Paul Tannous executed a mortgage over the Punchbowl Property (Westpac Mortgage), which was stamped to secure the amount of $160,000.

19    On 18 November 2001, the following documents were registered: a discharge of the CBA Mortgage; and the Westpac Mortgage.

2005 Westpac Loan and Guarantee

20    On or about 20 May 2005, Ms Chahin and her husband entered into a loan agreement with Westpac for a loan with a credit limit of $350,000 (05WBC Loan).

21    On or about 2 May 2005, Paul Tannous executed a guarantee and indemnity in favour of Westpac for the 05WBC Loan limited to $350,000 plus interest and expenses (05WBC Guarantee).

22    On 10 May 2005, the Westpac Mortgage was upstamped in the amount of $190,000, such that it was stamped to secure $350,000.

Proposed transfers and stamp duty

23    On or about 21 February 2011, George Shad, a solicitor, sent a letter to Paul Tannous and his wife, Margo Tannous, concerning stamp duty for: the transfer by Paul Tannous of his interest in a property at Lakemba (Lakemba Property) to his parents; and the transfer by Paul Tannous of his interest in the Punchbowl Property to Ms Chahin.

24    On or about 7 March 2011, Mr Shad sent a letter to Paul and Margo Tannous stating that: the stamp duty on the transfer of his interest in the Lakemba Property to his parents would be $103.75; and the stamp duty on the transfer of his interest in the Punchbowl Property to Ms Chahin would be $10,072.50. Prior to the sequestration order against Paul Tannous on 22 March 2018, Paul Tannous did not transfer his interest in the Lakemba Property to his parents, nor his interest in the Punchbowl Property to Ms Chahin.

Applicant as Registered Proprietor

25    As referred to above at [2], on 2 July 2020, the applicant became registered proprietor of the Punchbowl Property with the respondent as tenants in common in equal shares.

Values

26    The market value of the Punchbowl Property as at 5 May 2021 was $1.2 million.

27    The rental value of the Punchbowl Property was the following amount on the following dates: $460 per week as at 1 January 2006; $480 per week as at 1 January 2007; $500 per week as at 1 January 2008; $510 per week as at 1 January 2009; $530 per week as at 1 January 2010; $550 per week as at 1 January 2011; $550 per week as at 1 January 2012; $520 per week as at 1 January 2013; $500 per week as at 1 January 2014; $530 per week as at 1 January 2015; $550 per week as at 1 January 2016; $580 per week as at 1 January 2017; $595 per week as at 1 January 2018; $565 per week as at 1 January 2019; $595 per week as at 1 January 2020; and $625 per week as at 5 May 2021.

Jurisdiction

28    This Court has jurisdiction on the basis that, where a trustee in bankruptcy is a joint owner of a property, s 66G of the Conveyancing Act, as picked up by s 79 of the Judiciary Act 1903 (Cth), confers power on this Court to order the sale of the property: see Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [20] (Coshott v Prentice); Weston (Trustee) v Sanna [2020] FCA 830 at [93].

Background

Evidence relied on

29    The applicant relied on:

(1)    the affidavit of David Henry Sampson sworn 11 February 2020;

(2)    the affidavit of David Henry Sampson sworn 19 June 2020;

(3)    the affidavit of Maxwell William Prentice sworn 19 June 2020;

(4)    the affidavit of Craig David Higginbotham sworn 22 June 2020; and

(5)    the affidavit of David Henry Sampson sworn 17 July 2020.

30    The applicant’s witnesses were not required for cross-examination.

31    The applicant also tendered documentary evidence including a Personal Finance Enquiry form signed by Paul Tannous on 17 April 2005 and Paul Tannous’ tax returns for 1992/93 to 1996/1997.

32    The respondent relied on the following affidavits, and called evidence of each deponent:

(1)    the affidavit of Caroline Chahin sworn 8 May 2020;

(2)    the affidavit of Paul Tannous sworn 8 May 2020;

(3)    the affidavit of Youssef Tannous sworn 8 May 2020;

(4)    the affidavit of Hind Tannous sworn 8 May 2020; and

(5)    the affidavit of Pierre Chahin sworn 8 May 2020.

33    Each of the affidavits was admitted, subject to the rulings on objections. Each witness was required for cross-examination. In addition, the respondent tendered documents including a file note held by Westpac relating to the loan application made by Ms Chahin in 2001.

Overview of submissions

34    As explained above, the applicant is a co-owner of the Punchbowl Property, being a registered proprietor as tenant in common, and in that capacity he seeks an order pursuant to s 66G of the Conveyancing Act.

35    In summary, the respondent’s case is that although Paul Tannous’ name appeared on the title of the Punchbowl Property and represented that he held half ownership, that interest was held by him on trust for Ms Chahin (by way of an express trust, a common intention constructive trust or a remedial constructive trust to prevent unconscientious assertion of title). It was submitted that this arrangement was at the instigation of Ms Chahin’s parents, to protect the property in the event she married, and the marriage failed.

36    The respondent approached the case by submitting that it will be determined by the resolution of one primary question: who, at the time the Punchbowl Property was purchased, did the parties intend to be the beneficial owner? In that context, the respondent submitted that the “proper approach is to ask what their answer would have been, in 1992, had they been asked ‘who does the property really belong to?’” and that “the answer, emphatically, would have been ‘Caroline’” [emphasis in the original].

37    The evidence relied on by the respondent said to support her cross-claim is that: conversations between the various family members in 1992 were concerned with Paul Tannous’ name being put on the title rather than him having ownership of the property; Ms Chahin’s parents gifted her (and not Paul Tannous) money as part of the deposit for the property; the control of the Punchbowl Property has always been with the respondent (she rented it out and when she moved to live in the property in 2005, she did not ask Paul Tannous’ permission to renovate); and the financial obligations associated with the loans for the property were the respondent’s responsibility.

38    Critical to the respondent’s case, is the acceptance of her evidence and that of her family, as to the conversations said to have occurred prior to the purchase of the Punchbowl Property. Also critical is acceptance of the evidence that Paul Tannous did not contribute anything to the purchase of the Punchbowl Property, either financially or to its management or maintenance.

39    The applicant accepts that a trust is one of the established categories for a court to refuse to make orders under s 66G, but submits that the evidence does not support the respondent’s claim. In summary, it is submitted that the respondent has not established that the title for the Punchbowl Property does not accurately reflects its beneficial ownership, meaning the s 66G order ought to be made.

40    I will return to the submissions in more detail when addressing the issues below.

Legal principles

41    The relevant principles in respect to an application under s 66G of the Conveyancing Act are uncontroversial. Section 66G(1) is as follows:

66G Statutory trusts for sale or partition of property held in co-ownership

(1)    Where any property (other than chattels) is held in co-ownership the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition.

42    The applicant is a co-owner because he is an owner at law, being a registered proprietor as tenant in common: s 66F(1) of the Conveyancing Act.

43    Each co-owner has the right to approach the court for partition or sale. Although the word “may” is used in relation to the court’s powers pursuant to s 66G, except in very special cases, any co-owner is entitled to an order under the section almost as a right: Sutherland (as trustee of Property of Kerry Nisic aka Tsaprounis) v Tsaprounis [2014] NSWSC 1255; (2014) 17 BPR 33,303 at [3] per Young AJA.

44    In Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 at [36]-[43], Tobias AJA (with whom Bergin CJ in Eq agreed) discussed the categories of case where an order under s 66G has been refused as a matter of discretion:

The relevant principles relating to s 66G of the Conveyancing Act

[36]    The principles applicable to the exercise of the discretion under s 66G to order trustees for sale of a co-owned property were conveniently summarised by Black J in Pascoe v Dyason [2011] NSWSC 1217 at [5]–[8]. Relevantly for present purposes, it is now well-established that although the court has a discretion whether or not to make an order under the section, the grounds on which it will ordinarily refuse to make one are limited. In particular, there is no general jurisdiction to refuse to grant such an order on the basis of hardship or unfairness. An example of when the limited discretion to refuse to make an order can be exercised is where such an order would be inconsistent with a proprietary right or a contractual or fiduciary obligation: Grizonic v Suttor [2004] NSWSC 137; 12 BPR 22,797 at [8] per Campbell J.

[37]    In Hogan v Baseden (1997) 8 BPR 15,723, Mason P (at 15,723) having observed that it would not be a proper exercise of the power to decline relief under s 66G to refuse an application on grounds of hardship or general unfairness, noted that:

[I]n the unhappy event that the parties are unable to settle their differences then the making of an order appointing trustees for sale seems inevitable unless the respondent could establish a legally binding agreement not to put her out of occupation of her home, or circumstances that would ground some estoppel to similar effect.

[38]    In Cain v Cain [2007] NSWSC 623; 13 BPR 24,963 at [10], Young CJ in Eq noted that the categories of cases in which the court has declined to grant such an order include: where the legal title is held by trustees and the trust instrument contained its own procedure for sale; where the plaintiff’s conduct rates as an estoppel against the sale; and where an order would be incompatible with a contractual or equitable duty binding the applicant. Furthermore, in Tory v Tory [2007] NSWSC 1078 at [42], White J noted that an order under s 66G:

is almost as of right unless on settled principles it would be inequitable to allow the application.

His Honour confirmed that an application would be refused if making the order would be inconsistent with a proprietary right or contractual or fiduciary obligation on the basis of conventional estoppel or equitable estoppel.

[39]    In Callahan v O’Neill [2002] NSWSC 877 at [8], Young CJ in Eq observed that, as a general rule, any co-owner holding at least 50% of a parcel of real property is entitled almost as of right to an order for sale under s 66G and it is only in situations where it would, under settled principles, be inequitable to permit such an application that an order may be refused. His Honour cited Williams v Legg, which I refer to at [41] below. The appellants sought to gain some comfort from his Honour’s remarks suggesting that it could be inferred that where a co-owner held a greater interest than 50%, that fact would be relevant in the exercise of the court’s discretion to refuse the making of an order. Even if that be so, as appears below, it does not assist the appellants in the present case as the first appellant only held a 50% interest in the Properties.

[40]    In any event, this court in Ross v Ross [2010] NSWCA 301; 15 BPR 28,945 at [36] noted that the discretion to refuse relief under s 66G was a “limited one”.

[41]    In the course of argument on the appeal, reference was made by the appellants to the decision of this court in Williams v Legg (1993) 29 NSWLR 687 at 693 where the court (Handley, Sheller and Cripps JJA) approved the following observations of Myers J in Stephens v Debney [1960] SR (NSW) 468 at 469-470:

… In my opinion the legislature could never have intended to make the right to an order dependent exclusively on the existence of co-ownership, or to prevent the Court from examining the circumstances in order to determine whether it was right, in any particular case, to make an order. Trustees, for example, are co-owners, but their powers of sale depend upon the terms of the trust instrument. If the remarks to which I have referred were taken literally it would mean that despite the terms of the trust instrument one of two trustees could force a sale of the trust property by merely making an application under s 66G.

[42]    The court then stated:

For present purposes in describing the ambit of the discretion it is sufficient to say that it enables the court to refuse an order for sale where the order would be inconsistent with some proprietary right, or some contractual or fiduciary obligation.

[43]    None of the principles stated in the above authorities assists the appellants in the present case. In other words, none of the categories in which the court has exercised its discretion to decline to make an order under s 66G is applicable to the facts of this case. The appellants sought to negotiate that difficulty by asserting that the categories of case in which a court would decline to exercise its discretion are not closed. They then sought to assert the basis upon which new categories should be accepted.

45    Therefore, as referred to above, a trust is one of the established categories in which the court has refused to make orders under s 66G.

46    The initial presumption arising from the fact that persons are registered on the title as tenants in common in equal shares is that the beneficial interest in the property is held in accordance with the legal title: Currie v Hamilton [1984] 1 NSWLR 687 at 690; Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060; (2002) 12 BPR 22,421 at [128] (Black Uhlans); Foundas v Arambatzis [2020] NSWCA 47 at [47] (Foundas v Arambatzis).

47    The presumption of a resulting trust is a presumption as to the actual intention of the parties who contribute to the purchase price of a property: Shepherd v Doolan [2005] NSWSC 42 at [28] (Shepherd v Doolan). Ordinarily, the presumption arises at the time a property is acquired: Calverley v Green [1984] HCA 81; (1985) 155 CLR 242 at 251, 262 (Calverley v Green); Shepherd v Doolan at [23]. For example, the presumption of resulting trust arises where the money for the purchase of a property is provided by two or more persons jointly, and the property is put into the name of one of them (or in shares different to their contributions) and there is no presumption of advancement: Calverley v Green at 246. This presumption rebuts the presumption that the beneficial ownership is commensurate with the legal title: Foundas v Arambatzis at [47]-[48]; Henley v Bone [2019] NSWSC 254 at [27] (Henley v Bone).

48    However, given that evidence relevant to Ms Chahin and Paul Tannous’ intention at the time of purchase of the Punchbowl Property has been adduced, the presumption of resulting trust will only be of practical significance if the totality of that evidence is incapable of supporting the drawing of an inference on the balance of probabilities about what they intended: see Bosanac v Commissioner of Taxation [2022] HCA 34 at [67] (Bosanac). The presumption cannot prevail over the actual intention of the person(s), as established by the overall evidence: Bosanac at [13]. I note the following concerning the presumption of a resulting trust.

49    Where the legal owner is a contributor to the purchase price and seeks the entire beneficial interest, the legal owner must demonstrate it was the common intention of all contributors that the legal owner was to have the entire beneficial interest and not only a beneficial interest proportionate to their own contribution: Jain v Amit Laundry Pty Ltd [2019] NSWCA 20; (2019) 19 BPR 39127 at [135], see also at [89(6)]; Calverley v Green at 251, 269.

50    Incurring liability under a mortgage will amount to a contribution to the purchase price, with joint borrowers taken to have contributed in equal shares: Calverley v Green at 251, 257-258, 267-268; Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [168] (Amit Laundry v Jain); Buffrey v Buffrey [2006] NSWSC 1349; (2006) 12 BPR 23,619 at [14]. Subsequent payments to the mortgage do not affect the proprietary interests under the resulting trust: Chen v Liu [2017] NSWSC 1767 at [8]; Calverley v Green at 257. Similarly, the interests created by the presumption of a resulting trust are not changed by later contributions to the conservation or improvement of the property: Shepherd v Doolan at [23].

51    As a resulting trust is an inference drawn in the absence of evidence, it is necessary to start with the objective facts: Bosanac at [106]. A resulting trust may be express or implied and is based on a manifested intention to create a trust, not a private subjective intention: Amit Laundry v Jain at [145]-[147]; Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at 277, 290; Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 255 CLR 62 at 69-70. There must also be certainty of subject matter and certainty of object: Amit Laundry v Jain at [148].

52    The extent of the beneficial interest of the parties, arising by reason of a resulting trust, must be determined at the time when the property was purchased and the trust created: Calverley v Green at 252, 262; Black Uhlans at [141]. The presumption is rebuttable: Black Uhlans at [134]; Bosanac at [13]. As explained above, it cannot prevail over the actual intention of the persons paying the purchase price, as established by the overall evidence: Bosanac at [13]. The burden of proof rests on those seeking to rebut the presumption: Black Uhlans at [136] per Campbell J, citing Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 at 547.

53    The test for ascertaining a common intention is objective. It may be inferred from what the parties do or say, but not from their subjective states of mind: Calverley v Green at 261-262. It accords with how an intention to create an express trust, and how a common intention for a common intention constructive trust, is ascertained: Shepherd v Doolan at [34]-[38].

54    In that regard, in Calverley v Green at 262, Mason and Brennan JJ said as to evidence which may be used to rebut the presumption of a resulting trust:

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 (Shephard v Cartwright [1955] AC 431 at 445; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365). In some cases it is possible to treat the concurrence of one party with the other's payment of the mortgage instalments as an admission of the former's exclusive interest, but the circumstance attending the payment of mortgage instalments is no more than one of the relevant facts. Another relevant fact is the relationship between the parties at the time.

55    Also see, to similar effect, Black Uhlans at [138]:

In deciding whether a presumption of resulting trust had been rebutted, it would be necessary for the court to take into account not only evidence going to the intention of the provider of the money which tended to cut down the presumption of resulting trust, but also any evidence which tended to strengthen the finding about intention which that presumption dictates. Only by taking into account both evidence which tends to cut down the presumption, and evidence which tends to strengthen the finding about intention which the presumption dictates can the Court reach a conclusion about whether, on the whole of the evidence, the presumption has been rebutted. The sort of conduct which could possibly be taken into account in this way could include who took occupation and control of the property, who made improvements to it and in what circumstances, who paid periodical outgoings on the property, who received any rent from the property, and who paid income tax on any rent received from the property. To the extent that any of these types of transaction occurred at a time which was not “so immediately thereafter as to constitute a part of the transaction”, they could be taken into account only to the extent that they were admissions.

56    In El-Debel v Micheletto (Trustee) [2021] FCAFC 117; (2021) 153 ACSR 15, the Full Court set out a summary of the relevant principles at [7]:

(1)    A presumption of a resulting trust arises where one person provides the purchase price of property which is conveyed into the name of another person.

(2)    In deciding whether a presumption of a resulting trust has been rebutted the Court must reach a conclusion on the whole of the evidence.

(3)    The presumption of a resulting trust may be rebutted by evidence which manifests an intention to the contrary, but should not give way to slight circumstances.

(4)    The extent of the beneficial interest of the parties arising by reason of a resulting trust must be determined when the property was purchased.

(5)    It is the intention of the person who provides part of the purchase price that is relevant when considering whether the presumption may be displaced by contrary evidence.

(6)    If part of the purchase price is provided by being borrowed on a mortgage, the presumption of a resulting trust is applied by treating the monies raised by the mortgage as a contribution by the person who is liable to repay that money.

Approach to the evidence

57    Consistent with the manner in which the respondent presented her case, described above at [35]-[38], she urged that the starting point for any consideration of the issues for determination is her evidence and that of Paul Tannous and her parents as to what occurred at the time of the purchase of the Punchbowl Property.

58    On the other hand, the applicant submitted that it is appropriate to start by considering the contemporaneous documents of the purchase of the Punchbowl Property, and those documents which reflect dealings with the property thereafter.

59    It must be recognised the events surrounding the purchase of the Punchbowl Property occurred 30 years ago. The lapse of time is necessarily relevant to the assessment of the evidence, and in particular in relation to reliability of the oral recitation of events. The current proceeding is directed to establishing that the respondent is the true owner the Punchbowl Property, such as to deny the applicant access to it in respect to administering Paul Tannous’ estate: see, for example, Watson v Foxman (1995) 49 NSWLR 315 at 318-319 (Watson v Foxman). The respondent’s witnesses therefore have a significant interest in the outcome of the proceedings. It is clear from their evidence that the witnesses have discussed this case. Based on the manner in which the witnesses gave evidence, they could properly be described as presenting as advocates of the respondent’s position. I say that recognising, as explained below, that each of Mr and Mrs Tannous also gave evidence in cross-examination on some topics which was contrary to the respondent’s interests. Further, as is also explained below, there are real issues with the reliability of the witnesses’ evidence as to the events surrounding the purchase of the Punchbowl Property. There are gaps in the evidence. This is also in a context where, as explained below, prima facie, the contemporaneous documents are inconsistent with the respondent’s case.

60    And as was observed by McLelland CJ in Eq in the oft-cited passage from Watson v Foxman at 319:

… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

61    In Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875 (Volonakis), it was observed at [150]:

Also, a Court in cases involving events, some of which occurred some years before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, at [157] (Martin J); Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) at [15]-[22].

62    Plainly, each case turns on the assessment of its own facts and all the evidence must be assessed in light of the issues for determination. The uncontroversial observation in Volonakis is no more than a recognition of common sense.

63    In assessing a witness’ evidence, it is relevant to consider such matters as: the consistency of the witness’ evidence with what is agreed, or shown by other evidence to have occurred; the internal consistency of the witness’ evidence; and consistency with what the witness said or deposed to on other occasions. The reliability or veracity of a witness may be tested by reference, inter alia, to objective facts proved independently of a witness’ evidence.

64    Bearing in mind, as explained above, the initial presumption is that the beneficial ownership of real property is held in accordance with the legal title: Foundas v Arambatzis at [47]. This is also in a context where the respondent bears the onus of establishing her claim, and rebutting that presumption.

65    In that context, I accept that the objective evidence of contemporaneous documentation at the time of the purchase, and reflecting the interactions with the property thereafter, are of particular significance in this case.

Consideration

66    It is necessary to consider the evidence in some detail.

Documentary evidence

67    Consistent with my observations above, it is appropriate to commence with the documentary evidence created contemporaneously with the purchase of the Punchbowl Property. There are three such documents: the transfer of the Punchbowl Property; the CBA Mortgage; and the Wiley Park Mortgage (see above at [13]).

68    First, the transfer of the Punchbowl Property to Ms Chahin and Paul Tannous for $165,500, was signed on their behalf by their solicitor, and the words “Equal Shares” were written by hand on it next to “tenants in common”. It can be inferred that their solicitor was acting on instructions to do so. This, in itself, reflects that intentional thought and consideration was given to how the property was to be held between the two siblings, at the time of the purchase. That the Punchbowl Property was put in both names is evidence of their intention they would be the beneficial owners: Spink v Flourentzou [2019] NSWSC 256 at [210]-[211].

69    Second, the CBA Mortgage (of the Punchbowl Property) was given by Paul Tannous and the respondent as mortgagors and debtors, which was stamped for an advance of $116,000. Each of their signatures on this mortgage were witnessed by their mother. Paul Tannous is described as a sales representative and the respondent is described as a bank officer. The document reflects that both siblings were living at the Lakemba Property. The memorandum states that the mortgagors (being Paul Tannous and the respondent) have “an absolute and indefeasible title to the Mortgaged Property, free of all equities”.

70    Third, the mortgage of the Wiley Park Property was given by Paul Tannous as mortgagor and debtor (the word debtor being a handwritten addition on the document under his signature) and Mr Tannous as mortgagor, also stamped for an advance of $116,000. The respondent also signed in the capacity of debtor and all signatures were witnessed Mrs Tannous, with Paul Tannous and the respondent’s addresses and occupations being as in the CBA Mortgage. Mr Tannous’ occupation is recorded as retired and his address as the Lakemba Property. This mortgage was plainly part of the financing of the purchase of the Punchbowl Property. The 92CBA Loan was secured, inter alia, by this mortgage. It can be inferred that the CBA required this security in order to agree to provide the respondent and Paul Tannous the loan. This mortgage and the Punchbowl mortgage are both recorded as executed on 1 July 1992. I accept this mortgage was a non-monetary contribution to the purchase of the Punchbowl Property. It is inconsistent with the common intention contended by the respondent, namely that Ms Chahin was to have the entire beneficial interest in the Punchbowl Property.

71    It is to be inferred from the contemporaneous documentation that Paul Tannous and the respondent were legally represented in the purchase of the Punchbowl Property. They considered how the property was to be held between them, with a decision made that it was to be held in equal shares. To obtain the CBA Mortgage necessary to enable the purchase, both of their incomes were relied on, and the siblings were joint mortgagors and debtors. Paul Tannous also took out a mortgage on the Wiley Park Property, recognising in doing so that he was a debtor.

72    It must be inferred that the CBA was not told about any trust arrangement and nor was Ms Chahin and Paul Tannous’ solicitor, who acted on the loan transaction as well as the contract of sale (which is not in evidence). Rather, as explained above, it is to be inferred that their solicitor acted on their instructions, by hand writing “equal shares” on the transfer.

73    This contemporaneous documentary evidence supports the position that the common intention of Ms Chahin and Mr Tannous was that they would each be beneficial owners as to a half share.

74    About a month after the purchase of the property, it was rented out.

75    In that context, it is appropriate to refer to later documentary evidence, which is relevant in so far as it relates to the respondent and Paul Tannous’ intention at the time of purchase of the Punchbowl Property. As the applicant properly recognises, its weight may depend on the purpose and circumstances of the document being created, and the passing of time given that circumstances change.

76    First, Paul Tannous’ tax returns for 1992/93 to 1996/1997 are in evidence. These tax returns reflect that he was declaring half the rent from the Punchbowl Property as income. This continued, as Paul Tannous accepted in cross-examination, until 2005 when the respondent moved into the Punchbowl Property with her husband. Paul Tannous also claimed tax deductions for interest charged on the 92CBA loan in his 1992/93 to 1996/97 tax returns. That is, the Punchbowl Property was purchased as an investment with both siblings as tenants in common in equal shares, and with the intention of it being rented out. On that occurring, Paul Tannous immediately started claiming the deductions and declaring income from it.

77    Paul Tannous said in cross-examination that although this income was declared, he did not receive any rental income from the Punchbowl Property. However, Paul Tannous signed off on his tax return that included it as his income, in circumstances where it resulted in him paying tax on it. He also claimed as a deduction the interest on the loan repayments. A taxpayer must declare such statements in tax returns are true and correct. This conduct is entirely consistent with what is clear from the contemporaneous documentary evidence, namely, that he was a beneficial owner of the property with his sister. Moreover, the fact he was able to provide the details necessary to include this income and make these claims in his tax returns, reflects that he had access to the relevant information each year (which, on the respondent’s case, he had no need for and which, on his evidence, he had no access to because he had no need for it). These documents also tell against Paul Tannous’ evidence that he did not know about the amount of the repayments (and other related matters) because he entrusted them to his sister.

78    Second, Ms Chahin, in loan applications to Westpac in 2001, 2005 and 2007 stated that her assets included only half of the Punchbowl Property. These were representations by her to Westpac about her assets, for the purpose of persuading the bank that it should provide her with the loans sought. This is in a context where Ms Chahin accepted in cross-examination that: she satisfied herself that the statements in the applications were true and correct before signing; she had experience as a bank officer completing loan applications with customers; and she undertook a two stage process for completing and signing these applications where she was interviewed by her broker, who then filled in the form which she checked and signed.

79    In relation to the 2005 application, the highest the evidence went was, when asked in cross-examination why she had made these representations, Ms Chahin stated that her finance broker “would have told” her that she only owned half the asset because Paul Tannous’ name was on the title. No explanation was given regarding the 2001 and 2007 loan applications. The respondent’s closing submission that the evidence was that Ms Chahin’s finance broker “told her that she could only assert 50% ownership of the Property”, is not an accurate recitation of her oral evidence.

80    Third, in her 2001 application to Westpac, Ms Chahin declared half the rent from the Punchbowl Property as her income. Ms Chahin accepted in cross-examination that this representation was based on the understanding that Paul Tannous was entitled to half of the rental income. Again, this is in the context of her attempting to persuade Westpac that it should provide her the loan sought. If, as the respondent now contends, she was receiving all of the rental income, it was in her interest to provide that higher figure.

81    It should be noted on the other hand, as submitted by the applicant, there was no evidence produced by the respondent of her own tax returns to demonstrate her treatment of the rental income. If she had declared all of the rent as income, that evidence could have supported the respondent’s case that she intended to be the sole beneficial owner of the Punchbowl Property. Noting also that if the respondent declared only half the rent as income (as she did in the 2001 Westpac loan application, and as Paul Tannous did) this would have been inconsistent with her case.

82    Fourth, clause B2 of the memorandum to the Westpac Mortgage that the respondent and Paul Tannous signed in 2001 states:

Ownership

You [which means the mortgagor] own the property alone or will do so on completion of your purchase. You do not own it as trustee except as you told the Lender in writing.

No one else has any interest in or rights over or to use the property, except:

as set out on the front page of this mortgage or noted on the titles register;

…

83    That statement is a positive representation, when expressly asked for, that the Punchbowl Property was not held on trust and there are no interests in it other than those disclosed. Bearing in mind Paul Tannous agreed in cross-examination that he would have sought legal advice at that time in relation to that mortgage.

84    Fifth, in a similar vein, when the respondent applied for a loan in 2005, the “Personal Guarantor” section of the “Personal Finance Enquiry” was signed by Paul Tannous on 17 April 2005. He ticked the box on the form indicating that the Punchbowl Property was not held on behalf of a trust.

85    I note that Paul Tannous said in cross-examination that: he recalled signing the document; he knew it was an important document for the bank’s consideration about the loan; he read the document carefully; and he was careful to ensure it was true and correct before he signed it. He also said that he did in fact make sure it was true and correct. However, thereafter, when cross-examined about the fact that on the form he answered “no” to the question of whether the property was held on behalf of a trust, his answers were inconsistent, and unsatisfactory. For example:

So it was your understanding, was it, that as of the date in 2005 when you signed this document, that the property was not held under a trust; is that right?---I believed at the time that it was.

That it was held under a trust?---Yes. Well, I do know now, but…

86    After an exchange with counsel, Paul Tannous was asked and answered as follows:

Mr Tannous, I suggest to you that you signed this form with the box “no” there ticked on page 129 because you understood the property was not held on behalf of the trust?---I didn’t complete it. I mentioned earlier, I didn’t actually complete this form, and obviously, my attention to detail wasn’t great when I signed it, so but it was as – from my understanding – I’m not – I’m not very strong in the finance world – there was a trust in place with the new accountants that we had employed.

Mr Tannous, you just agreed with the proposition about five minutes ago that you read this carefully before you signed it?---Well - - -

Is that evidence true?---Yes, it was true, but obviously not carefully enough

87    Amongst the issues with this evidence was Paul Tannous’ statement that “there was a trust in place with new accountants they had employed”. There was no re-examination on the topic and there is no evidence supporting that assertion. It would have been expected that if evidence existed, and was said to be relevant, it would have been adduced. Noting also there was no evidence from any accountants. Importantly, as the applicant submitted, the answer was given that the trust would have been in place after the time of purchase. I do not accept Paul Tannous’ explanation.

88    Therefore, all of the contemporaneous documentary evidence, and the documentary evidence after the event, supports the position that the common intention, at the time of purchase, was that Paul Tannous and Ms Chahin would both be beneficial owners as to a half share of the Punchbowl Property.

89    It is also appropriate at this stage to refer to the main document relied on by the respondent, a typed file note from Westpac records, in relation to the loan application made by Ms Chahin in 2001. In light of its nature, it falls into a different category to the formal documents prepared and signed by the respondent and Paul Tannous (or their solicitor on their behalf). The respondent submitted that this document is “vivid testimony” of her state of mind in 2001 when speaking to her broker, Mr Annous. The entry purports to have been entered by Mr Annous and reads as follows:

Customer referred to WBC by brother Paul J Tannous HVC profess package customer. Discussed with credit manager hotline John Heath. Customer owns home but when purchased 8 years ago father put brothers name also on title. Father has also done same with guarantor on his family home at Punchbowl father has 50% owner but home really owned by Paul. Family custom having names on titles. Existing loan with CBA ahead of arrangements and very well maintained.

It is to be recalled that this loan was taken out by Ms Chahin at Paul Tannous’ request to enable him to buy a business in circumstances where the bank would not loan him any more money.

90    There are a number of observations to be made about this document.

91    First, at best, it is second hand hearsay relied on as evidence of a conversation with the respondent some 9 years after the purchase of the property. At its highest, it is a recording of the subjective view of the respondent as to ownership. There is no direct evidence of this conversation. The respondent did not give evidence of this conversation. At its highest, it is not an admission against interest by Paul Tannous and therefore is irrelevant to ascertaining his intention.

92    Second, at best, this was said to be a conversation involving only Ms Chahin in 2001, in circumstances where it is necessary to consider the intention of both Ms Chahin and Paul Tannous in 1992.

93    Third, this is not a document that is adopted by the respondent. Unlike the bank documents referred to above, this document is not signed. There is no evidence to indicate the accuracy of the recording. Nor, given its brevity, as to what else may have been said and the context in which the recorded information was discussed.

94    Fourth, this recording was in a loan application where Ms Chahin was seeking to persuade the bank to provide a loan to her, in circumstances where Paul Tannous could not do so on his own.

95    Fifth, importantly, assuming the file note is an accurate recording, it does not accord with the respondent’s claim (or evidence) as to the basis on which Paul Tannous’ name is on the title. There is no suggestion in the evidence that Paul Tannous’ name was on the title of the Punchbowl Property as a result of family custom. Rather, the arrangement contended by the respondent was said to have been in place specifically for protecting Ms Chahin’s property from a prospective ex-husband.

96    There is also no evidence that family custom was the basis on which Mr Tannous’ name appears on the title of the Wiley Park Property. Mr Tannous and Paul Tannous were both on the title of that property and there is no evidence that it was not accurate. Nor is there any suggestion in the evidence that there was any trust arrangement involving the Wiley Park Property. Rather, Mr Tannous held a 50 percent beneficial share of the property, and he received and was living off of the rental income generated by it. If the Punchbowl Property is said to have been dealt with in the same way as the Wiley Park Property, it does not support the respondent’s claim.

97    Sixth, the respondent’s submission that Mr Annous was content to allow the position (reflecting 50 percent ownership) to continue only in the documentation, is not borne out by the limited file note. That submission is based on speculation. It does not follow from the file note that Mr Annous did not consider that Paul Tannous had a share or had beneficial ownership of the Punchbowl Property, or that Ms Chahin had the entire beneficial ownership in the property.

98    The respondent also submitted that each of the formal documents are explicable as consequences of the artificial arrangement of the ostensible co-ownership on the title of the Punchbowl Property. I am not persuaded by that submission. For example, in circumstances where the respondent was attempting to establish that she was a good credit risk, it was not necessary as part of the artificial arrangement contended to state in her application to Westpac that she only received half of the rental income from the Punchbowl Property. Similarly, for example, Paul Tannous declaring rental income in his tax returns from 1992/93 to 2004/05 and claiming deductions for repayments of the 92CBA loan in his tax returns from 1992/93 to 1996/97 is not accounted for on that basis (noting that Paul Tannous claimed in cross-examination he could not remember whether he continued to claim interest deductions on the loan until it was repaid in 2001). On the evidence, he signed his tax returns claiming deductions as genuine, but he now says they were not. Paul Tannous did not have any adequate explanation for that conduct, nor did the respondent’s counsel in submissions.

99    After conceding during closing submissions that Paul Tannous claiming the deductions described above in his tax returns did not inexorably follow from the artificial arrangement contended, the respondent submitted there were three competing inferences that could be drawn from the conduct. First, although it does not reflect well on Paul Tannous, it was opportunism on his part. That is, because he had his name on the title and was a co-borrower, even though he was not paying off any of the loan, he was able to claim half of the loan payments as deductions. It was described by the respondent as explicable as an “opportunistic imperative”. Second, as contended by the applicant, it reflects that he was paying off the loan and receiving income. Third, a mistake was made by accountants without full instructions about the dealings between Paul Tannous and Ms Chahin. There is no evidence to support either the first or third hypothesis.

100    Moreover, if, as Ms Chahin contends, these documents reflect the artificial arrangement, it is to be inferred that if the situation arose where she needed to protect her property in the event of a divorce, it would be contended that these documents accurately reflect that Paul Tannous owned 50 percent of the property. The respondent’s submission that in 1992 the parties were not versed in the niceties of law does not overcome the fact that it must have been apparent to all, that for the property to be protected on this basis, the assertion that Paul Tannous was a 50 percent owner of it, had to be correct. I return to this topic below at [157].

101    Stepping back, I accept it is unlikely that Paul Tannous would take on liability for the 92CBA Loan, or risk the Wiley Park    Property, unless he had some beneficial interest in the Punchbowl Property. That he immediately began claiming deductions from the interest for repayments on the loan and declaring the income derived from the Punchbowl Property (on which he was required to pay tax) in his tax returns, only reinforces that position.

102    The contemporaneous documentation and formal documentation thereafter all reflects that the common intention at the time of the purchase was that Paul Tannous and Ms Chahin would both be beneficial owners as to a half share. There is no evidence which otherwise satisfactorily explains those documents. As explained above, the submission that they are consistent with the artificial arrangement contended by the respondent to be in place, cannot be accepted. All formal documentary evidence is inconsistent with the respondent’s claim.

Evidence relied on by the respondent for common intention

103    It is appropriate at this stage to address the evidence relied on by Ms Chahin, in support of her claim that she is the sole owner of the property. In other words, the evidence said to support that it was the common intention of Paul Tannous and Ms Chahin that he would hold his share of the Punchbowl Property on trust for her. This evidence must be assessed in the context of the objective facts as evidenced by the documents referred to above.

104    It is first necessary to refer to the content of the evidence regarding the events at the time of the purchase.

105    In her affidavit, Ms Chahin gave evidence of a conversation with her parents around early 1992, in which they: expressed concerns about the Punchbowl Property being in her name alone on the basis that, if she were to be married then divorced, her husband would take half of it; and suggested that she ask Paul Tannous to put his name on the title. Ms Chahin gave evidence that she told her parents that the Punchbowl Property was hers and Paul Tannous would not be paying anything, but agreed to the arrangement once they made their assistance conditional on him being on the title.

106    Ms Chahin also gave evidence of a conversation with Paul Tannous in which: she clarified that the Punchbowl Property was hers and he was only on the title to make their parents happy; and he stated that he understood the property was hers and did not intend to pay for anything or interfere.

107    Regarding contributions to the Purchase Price, Ms Chahin gave evidence in her affidavit and in cross-examination, that she contributed $15,000 of the $40,500 deposit for the Punchbowl Property, with the remainder, identified as $30,000 during cross-examination, given to her by her parents.

108    In his affidavit, Paul Tannous gave evidence that he had a conversation with Mr Tannous in early 1992, in which Mr Tannous told him he needed to be on the title of the Punchbowl Property with his sister, in case she were to ever be divorced and have her husband try to take it from her. Paul Tannous stated that he told his father he did not have money to assist Ms Chahin, to which his father indicated that he would be giving her the rest of the money required himself.

109    Paul Tannous also gave evidence of a conversation with Ms Chahin, in which she told him that their parents were making her put him on the title for the Punchbowl Property, even though she was buying it for herself. Paul Tannous gave evidence that during that conversation, he promised Ms Chahin he would not get involved with the property and suggested they could change the title later without their parents needing to know.

110    Paul Tannous stated that he did not recall the Purchase Price, but did not contribute any money to it.

111    In his affidavit, Mr Tannous gave evidence that around 30 years prior, Ms Chahin had asked him for help because she did not have sufficient savings to pay the deposit for the Punchbowl Property. He stated that his assistance was conditional on Paul Tannous being on the title to protect her from a prospective ex-husband. Mr Tannous also gave evidence of a conversation with Paul Tannous, in which he told Paul Tannous that he had to be on title with Ms Chahin but did not need to pay anything because Mr Tannous would be giving her the rest of the money required himself.

112    Mr Tannous stated in his affidavit that he could not recall how much money he gave Ms Chahin, but said during cross-examination that he contributed $5,000 from a $20,000 cheque. He also stated during cross-examination that did not recall Paul Tannous being one of the borrowers on the 92CBA Loan.

113    In her affidavit, Mrs Tannous gave evidence of a conversation, around 30 years prior, in which Ms Chahin asked for around $40,000 to purchase the Punchbowl Property. Mrs Tannous gave evidence that she and her husband agreed to give money to Ms Chahin without repayment, on the condition that Paul Tannous be on the title in case Ms Chahin were to get married and have her husband try to take the property from her. Mrs Tannous gave evidence that Ms Chahin stated in response that the house was hers and Paul Tannous could not tell her what to do with it.

114    Mrs Tannous also stated in her affidavit and in cross-examination that she could not recall how much money she and her husband gave to Ms Chahin to help her buy the Punchbowl Property. During cross-examination she said that she gave Ms Chahin $10,000 after she got a workplace redundancy/compensation payment (because Ms Chahin had helped her by taking her to doctor’s appointments).

115    In his affidavit, Mr Chahin gave evidence of a conversation with Ms Chahin around 2002 in which Ms Chahin told him that she owned the Punchbowl Property and had paid for it, but her brother was on the title because her parents were worried that if she ever got divorced her husband would be able to take it from her.

116    Before addressing the submissions advanced as to Ms Chahin and Paul Tannous’ common intention, some observations can be made in respect of the witnesses.

117    As previously discussed, these witnesses were giving evidence of events which occurred 30 years prior. Mr and Mrs Tannous in cross-examination each volunteered non-responsive statements which aligned with their daughter’s case. Each volunteered, then repeatedly stated in non-responsive answers, that Paul Tannous did not contribute to the Purchase Price of the Punchbowl Property. In relation to Mr Tannous, his insistence is in a context where he said he did not recall Paul Tannous being a borrower on the 92CBA Loan. Mrs Tannous said that Paul Tannous did not pay $1 into the Punchbowl Property and, after she had completed her evidence, made a plea to the Court that “[t]here is an injustice happening to my daughter. Please. I just want to tell you”.

118    Although he did not meet Ms Chahin until 2002, Mr Chahin also made the same assertions in his oral evidence. He volunteered in a non-responsive answer that Paul Tannous did not pay anything for the Punchbowl Property and again volunteered that Paul Tannous did not pay $1, when it was suggested to him he did not know whether Paul had paid anything.

119    These witnesses gave evidence as advocates for the position that assisted the respondent. As the applicant submitted, it is plain from the evidence that the family had been discussing this case often. So much was admitted by Mr Chahin and Mr Tannous, who said in cross-examination that he was with Ms Chahin when he had his affidavit translated over the telephone. Mrs Tannous denied this, but in the circumstances, I have difficulty accepting her denial.

120    It is obvious from their evidence that the family members are concerned about the position that the respondent now finds herself in as a result of Paul Tannous’ conduct. There is an obvious motive for these witnesses, which was to assist Ms Chahin, even subconsciously, to claim the whole of the Punchbowl Property for herself from the applicant. Bearing in mind at the time the Punchbowl Property was purchased, Ms Chahin was looking to buy an investment property, and it was rented out for 13 years after it was purchased, before Ms Chahin decided she would move in. That background, in itself, given the state of the evidence, may contribute to an element of reconstruction of the events.

121    In those circumstances, caution should be exercised when approaching the evidence of these witnesses. They were seeking to advance an interest, which may consciously or even subconsciously have affected their evidence. I explain further below, for example at [142]-[158], other issues that arise on the evidence. Suffice to say that in those circumstances, there is an issue as to the reliability of their evidence. This is in a context where, as referred to earlier, their evidence is inconsistent with the documentary evidence, which, cannot and was not explained by their evidence.

122    The applicant submitted that Ms Chahin was, on the whole, trying to tell the truth, but also had a tendency to exaggerate her position (for example, in her description of the renovations undertaken and the purpose of the 2007 loan) and was at times evasive. The respondent rejected these submissions. However, there are issues as to the reliability of her evidence, and there are obvious gaps in the evidence: see for example [148]-[149].

123    It is sufficient to note at this stage that there is an issue as to the reliability of the conversations deposed to by the respondent and the respondent’s family. Further issues regarding their evidence, in particular that of Paul Tannous, are set out below at [157]-[158].

Submissions regarding common intention

124    The respondent submitted that Ms Chahin and Paul Tannous’ intention at the time of the purchase went no further than Paul Tannous appearing on the title with Ms Chahin and that the precise words of the conversations had do not matter as much as their intention. It was submitted that precise words only matter in so far as they disclose an intention, and an intention can be apprehended much more viscerally than the recollection of a particular conversation.

125    The respondent instead pointed to: money being gifted to the respondent; the respondent using her savings; and there being no contribution from Paul Tannous. The respondent also took issue with the applicant’s submission that the “true intention” was that “Paul will own half of your property in case your marriage breaks downs”.

126    On the other hand, the applicant contended that the content of the conversations is important and emphasised the context of the respondent alleging complete beneficial interest in the property, a position at odds with the documentary evidence.

127    The respondent’s submission is artificial. The suggestion that the intention went no further than Paul Tannous appearing on the title ignores the context in which this was said, on her case, to arise. It is that context which must be part of the assessment of whether the common intention contended for has been established. The respondent contends that the arrangement was required by her father to protect the asset from a prospective ex-husband. As the applicant submitted, that arrangement necessarily required Paul Tannous to have the beneficial interest as there was no other way it would be effective. As stated earlier, the respondent’s submission that the parties were not versed in the niceties of the law does not overcome that that would have been apparent to all. Although the respondent’s submission was that they had a limited understanding of concepts of ownership, there is no evidence of that. Their stated intention to protect the property from a prospective ex-husband is inconsistent with the common intention now contended for.

128    The respondent took issue, during oral submissions, with the applicant’s submission that the position can be tested by asking if Ms Chahin were to be divorced, would the family assert that Paul Tannous owned half of the Punchbowl Property. It was submitted that it was an “unkind” submission, as it suggests that the family would perpetuate a fraud on Ms Chahin’s prospective ex-husband. The respondent took issue with a suggestion of fraud, and described the artifice as a sham. However, Paul Tannous having a beneficial interest is the only way, on the respondent’s case, that his name on the title could have any effect. Contrary to the respondent’s contention, this does not only arise with “the benefit of legal training and an awful lot of hindsight”. Rather, it is the natural end point of the arrangement described by the respondent. Paul Tannous’ involvement was said to be to protect the respondent. On any scenario, that would have been understood as requiring he actually have beneficial ownership.

129    I also note that, as referred to earlier, Paul Tannous and Ms Chahin had a lawyer acting for them at the time of purchase of the Punchbowl Property and, in light of the documentary evidence, the inference to be drawn is that there was a discussion and decision made at the time of purchase that they would be tenants in common with each having a 50 percent beneficial share in the property.

130    An issue arose during submissions as to whether Ms Chahin and Paul Tannous’ common intention changed over time. I accept the applicant’s submission that a common intention changing interests over time, or a varied or new common intention, as well as what Ms Chahin did to constitute detriment on either such common intention, would need to have been pleaded if such a claim was being made: Silvia (Trustee) v Williams [2018] FCAFC 194 at [29]-[30]. No such pleading exists in this case. I do not accept the respondent’s submission that such a pleading was not required if that was to be the case advanced. Importantly, the respondent has never alleged or identified that there was a change in the common intention, or if there was, when any change in common intention was said to have occurred. The case as advanced, was not that there was a change to the common intention, but rather, it was very clearly that the common intention was as contended at the time of purchase and it did not change.

131    As alluded to earlier, the reliability of the evidence regarding the conversations in 1992, is in issue. I do not accept that the details of those conversations are not relevant in the manner contended by the respondent.

132    Allowing for the effect of the passage of time, concerning inconsistencies remain between the accounts of those conversations. For example, Mrs Tannous gave evidence that a specific request for the amount of $40,000 was made by Ms Chahin to enable her to purchase the Punchbowl Property. It was only Mrs Tannous who provided that detail. This reflects a stage of preparedness as to the purchase not evident in the other accounts of the same conversation. On the other hand, it is difficult to accept that, as reflected in the evidence of Mr Tannous, there was an agreement to provide money without repayment to Ms Chahin, on the condition that her brother be on the title, if at the time there had been no discussion regarding the amount requested. Given that CBA granted a loan based on two incomes (those of Ms Chahin and Paul Tannous), and with a separate security over the Wiley Park Property, it is assumed those matters were required by the CBA. That is, without those matters, the amount of the loan required would not have been advanced. It is unlikely that Ms Chahin could have requested a specific amount of money from her parents unless she had already made enquiries regarding these arrangements from CBA. It is also unlikely that they could have agreed to assist her without knowing the amount they would be providing. This is particularly true in circumstances where there was an upper limit to the amount Mr Tannous was able to provide, meaning that the amount requested to enable Ms Chahin to purchase the Punchbowl Property was relevant.

133    There is limited evidence of few conversations. This is also in a context where the family were living in the same house, and where it might be expected that the purchase, and how it was to occur, was a topic of conversation. Indeed, the respondent submitted that because they lived together each would know, and can give evidence of the fact, that Paul Tannous did not pay anything towards the purchase or the mortgage. Yet on the evidence, the respondent did not know of the mortgage of the Wiley Park Property. There is no evidence of how, on the respondent’s case, it came to be that Paul Tannous was a joint mortgagee for the Punchbowl Property. On his evidence, he told his father he was not in a position to contribute anything. However, the mortgage made him liable for repayment. He also agreed to mortgage the Wiley Park Property to enable the purchase, but again, there is no evidence as to how he came to do so.

134    There is also no evidence of how, on the respondent’s case, Paul Tannous had access to the necessary information to make claims and disclose income from the rent, which appears to have commenced immediately upon the Punchbowl Property being rented. Noting in that context, that no evidence was led by the respondent as the conduct of Paul Tannous in claiming the interest on the repayments or declaring half the rent as income. Rather, that evidence was elicited in cross-examination and only by access and reference to his tax returns. There was also no evidence from the respondent as to how she treated the rental income from the Punchbowl Property in her own tax returns.

135    On the respondent’s case, on matters relevant to the issues for determination, the evidence is silent.

136    This is to illustrate that it is not as simple as the respondent submits. The details of the conversations are relevant and it does not suffice to ask what their answer would have been, in 1992, had Ms Chahin and Paul Tannous been asked “who does the property really belong to?”. The content of conversations is particularly important in this instance in light of the contemporaneous documentary evidence all reflecting the contrary position.

Contributions to purchase price

137    As explained earlier, critical to the respondent’s case is an acceptance of the evidence led by her that Paul Tannous did not contribute to the Purchase Price of the Punchbowl Property beyond his liability for the 92CBA Loan.

138    As indicated above at [47], attention must be directed to who contributed to the Purchase Price of the Punchbowl Property.

139    As a preliminary observation there is no objective or contemporaneous evidence of who paid what for the purchase of the property. Moreover, there is no explanation given for the absence of such evidence.

140    In Coshott v Prentice, the Court observed at [80]-[81]:

[80]    … In this regard, reliance may properly be placed upon the principle tracing back to the remarks of Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65 that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. As Hodgson JA (with whose reasons Beazley JA agreed) explained in Ho v Powell (2001) 51 NSWLR 572 at 576 [14]-[15]:

[14] [I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.

[15] In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so. [Citations omitted.]

[81]    Thus, where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 explained at 93 [440], “[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party’s case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied”. (emphasis added)

141    I accept the applicant’s submission that given the respondent’s case, it has limited ability to adduce such evidence, and that the respondent is in a much better position to do so.

142    At its highest, each of Mr and Mrs Tannous and Mr Chahin said that Paul Tannous did not contribute anything to the Purchase Price of the Punchbowl Property and, Mrs Tannous and Mr Chahin also stated that he did not “pay $1”. Paul Tannous and Ms Chahin also both gave evidence that he did not contribute.

143    The evidence establishes the following: the Purchase Price of the Punchbowl Property was $156,000; the stamp duty on the purchase was $4,000; and the stamp duty on the mortgages was $415. In addition there were unknown conveyancing costs and expenses. It follows that the total required was in excess of $160,915. The evidence shows that the 92CBA Loan, of which Paul Tannous and Ms Chahin had shared liability, was for $116,000. I accept Ms Chahin’s evidence that she paid a $15,000 deposit which she had saved over 4 years. That amount, given her circumstances, is realistic. That leaves a shortfall of approximately $30,000.

144    That shortfall is where a dispute arises. Ms Chahin said that her parents provided the balance. Bearing in mind that at time (as recorded in the contemporaneous documents) Mr Tannous was retired and Mrs Tannous’ occupation was listed as home duties. There was also evidence that the rental income generated from the Wiley Park Property was received by them to be used for living expenses.

145    The only evidence as to the amount contributed was given by Mr Tannous, who said that he gave Ms Chahin $5,000 out of a $20,000 cheque, which was almost all he had.

146    As referred to earlier, I note that the evidence from Mrs Tannous was that at some stage she received a compensation payout. She stated:

At that time me and my husband used to work at the same factory. Okay. And then the business moved to Melbourne and then they gave us, like, compensation or redundancy award. Yes, so like, redundancy lump sum. I can’t recall exactly how much did we give her, but we also paid for the lawyer for the conveyancing. And from the compensation I got 15,000. I gave her 10,000 because she used to help me, take me to the doctor’s appointments.

147    Mrs Tannous said she was working at the time, or more particularly on workers compensation (noting that the applicant could not cross-examine Mrs Tannous on the reference to home duties in the mortgage documents as she did not bring her glasses to Court).

148    Ms Chahin also said in cross-examination that part of Mrs Tannous’ workers compensation payment was given to her, which she used to pay down the mortgage on the Punchbowl Property after purchase. That evidence indicates that the $10,000 which was provided by Mrs Tannous was at a time after the property had been purchased.

149    Further, although the respondent said her parents paid the shortfall, she did not explain how that was so. Nor does her parents’ evidence account for it. In cross-examination Ms Chahin said her parents contributed $30,000 (after she had been questioned about the amount of the shortfall). However, it was apparent from her cross-examination that the respondent did not know at the time that the Wiley Park Property was mortgaged to enable the 92CBA Loan to be obtained. This affects the reliability of her evidence on this topic. I do not accept Ms Chahin’s evidence in that regard. It is not supported by any other evidence, and is improbable in the circumstances.

150    The respondent submitted that I ought not to accept Mr Tannous’ evidence that he only contributed $5,000 to the purchase of the Punchbowl Property. It was suggested that he had only been told the night beforehand that he was to give oral evidence. However, that is not a basis not to accept his evidence. These witnesses have known for a considerable time about these proceedings and gave affidavits at an earlier time. I accept that in his affidavit Mr Tannous said he could not remember how much money he had contributed. However, as explained above, these proceedings had been discussed by the family. It is clear from their repeated and non-responsive statements during cross-examination that Paul Tannous did not contribute to the purchase of the Punchbowl Property that it was known to be an important issue. The evidence of Mr Tannous is very specific and his evidence on this topic, as well as Mrs Tannous’, was against the respondent’s interests. Moreover, there is no evidence produced by the respondent to suggest that Mr and Mrs Tannous had the capacity to give Ms Chahin $30,000 at that time.

151    Given the state of the evidence, I am not persuaded that Mr and Mrs Tannous contributed $30,000.

152    If the respondent’s parents only contributed $5,000, as stated by Mr Tannous, that leaves an outstanding amount of about $25,000 unaccounted for. In circumstances where Mr Tannous gave evidence that the $20,000 cheque from which he gave Ms Chahin $5,000 was almost all he had, even if he and his wife contributed double that amount, a large shortfall remains unaccounted for. Indeed, even if the total $20,000 was provided, it would have been insufficient to account for the shortfall.

153    Paul Tannous was single and living at home at the time, and therefore had limited living expenses. He was not paying board and paid some bills, but the rest of his income was his. He was employed (as a sales representative) and already owned the Wiley Park Property with his father, which had already been paid off. Paul Tannous therefore had income and an asset he could use to acquire more property (for example, by securing a loan), if he desired.

154    Ms Chahin was looking for an investment property.

155    Paul Tannous’ income was necessary to secure the 92CBA Loan and he took on the liability for half of it. He, with his father, provided the Wiley Park Property as security for the 92CBA Loan. This reflects that Paul Tannous was actively and financially involved in the purchase.

156    Paul Tannous is, on the evidence, the only other possible source of funds for the shortfall in the Purchase Price. In those circumstances, it is probable that he contributed to the Purchase Price of the Punchbowl Property.

157    In respect to his evidence, as explained above at [85]-[87] Paul Tannous was evasive at times, and would only concede matters when a document reflected that he had no choice but to do so. He admitted that he lied to Mr Shad in 2011 regarding the purpose of consulting him about various properties. Further, Paul Tannous had no explanation, or no adequate explanation, for evidence (particularly documentary evidence) which was plainly inconsistent with his evidence (for example, his tax returns).

158    In the above circumstances, I do not accept the evidence of Paul Tannous, nor that of the other witnesses, that he did not contribute to the Purchase Price of the Punchbowl Property.

159    Before leaving the topic of the contribution to the Purchase Price, I note that it is not contested that Mr and Mrs Tannous contributed to the Purchase Price of the Punchbowl Property. The only specific evidence was that the amount provided was $5000. Each of their affidavits stated that it was a contribution to Ms Chahin and the respondent submitted it was not open to suggest that Mr and Mrs Tannous’ contribution was not a gift to her alone. However, their oral evidence was at times inconsistent. Mr Tannous said he understood when he contributed money that both Paul Tannous and his daughter would be on the title of the property. As he said, “I paid it for the house”. Similarly, Mrs Tannous said that the money they contributed was “for both of them” because Paul Tannous’ name was on the document (being the title). I am not persuaded on the evidence by the respondent’s submission that the money was a gift to her alone.

160    It should also be noted that the presumption of advancement applies to a contribution by a parent to the purchase of property in the name of a child: Henley v Bone at [23], [26]-[27]. It operates as a circumstance which may rebut the presumption of resulting trust or prevent it from arising from the contribution: Bosanac at [15] and [65]. However, in this case, I accept that the contribution was a gift, which was not the subject of challenge. Rather, the issue was to whom it was made. Both Paul Tannous and Ms Chahin are children of Mr and Mrs Tannous and both became registered proprietors of the Punchbowl Property. I accept the evidence that the contribution was to both of their children. Therefore, half of the amount Mr and Mrs Tannous contributed should applied towards the contributions of Paul Tannous and Ms Chahin. This is consistent with Mr and Mrs Tannous’ oral evidence (see immediately above).

161    In summary, in relation to the Purchase Price of the Punchbowl Property:

(1)    I am satisfied that Ms Chahin and Paul Tannous contributed half of the 92CBA Loan each (see [50]);

(2)    I am satisfied that Ms Chahin contributed $15,000 of her savings as a deposit;

(3)    I am satisfied that Mr and Mrs Tannous gifted an amount towards the purchase of the property (which was gifted to both Ms Chahin and Paul Tannous);

(4)    I do not accept that Mr and Mrs Tannous contributed the approximately $30,000 shortfall. Rather they contributed a portion, the only evidence being it was $5,000. Even it if it were a greater amount, I am not satisfied it was $30,000; and

(5)    I am satisfied that Paul Tannous contributed to the deposit.

Ms Chahin and Paul Tannous’ dealings

162    A number of submissions were made as to other factual matters which were also said to support the common intention contended by the respondents.

163    The respondent submitted that from 1992, Ms Chahin rented the Punchbowl Property out and paid the mortgage repayment shortfall of $390 per fortnight from her own wages. It was therefore submitted that if she and Mr Tannous truly believed that the Punchbowl Property belonged to both of them: there would be evidence of their dealings with each other; one would expect that Ms Chahin would not have been at liberty to borrow money against the property and live in it without accounting to Paul Tannous; one would expect that Ms Chahin would have called for contribution from Paul Tannous for his share of loan repayments and the costs of renovation; and one would expect that Ms Chahin would have sought Paul Tannous’ contribution or assistance while going through periods of real financial difficulty around 2007. The respondent also referred to the steps taken to transfer the property into Ms Chahin’s name in 2011.

164    Those submissions must be considered in context.

165    As explained above, both Paul Tannous and Ms Chahin were liable for repayment of the CBA Mortgage. A co-owner may rent out the property and does so as agent of the others: see, for example, Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497. If the rent belonged to the siblings equally, it was applied to their joint benefit as it was reducing the amount secured by the mortgage over their jointly owned property and their personal exposure to the lender. As the applicant submitted, this tends against the common intention contended by the respondent.

166    Further, these submissions must be considered in a context where the Punchbowl Property was used for Paul Tannous’ benefit when the 01WBC Loan was secured against it.

167    The respondent also submitted: that Ms Chahin took sole responsibility, without Paul Tannous being a co-borrower, for the $33,500 home loan portion of the 01WBC Loan, which was clearly separate from the line of credit used by Paul Tannous; and that Paul Tannous paying the $126,500 portion of the loan off within a year was consistent with a lack of a sense of entitlement to impose on the property. However, the monthly repayments for the portion for which Ms Chahin was said to have taken full responsibility was serviced by rental income of the Punchbowl Property and the time taken for Paul Tannous to pay a business loan is not necessarily attributable to a lack of entitlement (but is rather reflective of a business loan he was responsible for). This is also to be considered in the context where, as previously referred to, Paul Tannous said in cross-examination that he declared the income from the Punchbowl Property in his tax returns until 2005, which is when Ms Chahin moved into the property.

168    Moreover, there is an issue with the factual proposition that Ms Chahin paid the shortfall between rental income and mortgage repayments. On the evidence, extra payments were needed to pay down the mortgage, the source of which is not satisfactorily explained. Ms Chahin gave evidence that she paid the difference between the rent (which was between $360 and $440 per fortnight) and the minimum mortgage payments (of $750 per fortnight) up until the mortgage was refinanced in 2001. She said that her parents sometimes assisted as this was the limit of what she could afford. It will be recalled that Ms Chahin had saved $15,000 in the years 1988-1992, which was used as the deposit for the Punchbowl Property. The shortfall required of $310-$390 per fortnight ($8,060-$10,140 per annum) was far in excess of the less than $4,000 per annum that Ms Chahin saved between 1988 and 1992 ($15,000 total). Up until 2001, at which time I accept the mortgage debt had significantly declined, there appears to be a shortfall that is not accounted for.

169    Ms Chahin gave evidence that there were extra payments over the required $750 per fortnight made to achieve the 92CBA Loan being significantly ahead of schedule until 2001, although I note that these extra payments were not referred to in her affidavit. The only explanation proffered in cross-examination for the source of that money, was that Ms Chahin’s parents gave her a lump sum payment after her mother received a workers compensation payout.

170    As explained above, Mrs Tannous also gave evidence of giving Ms Chahin $10,000 from a redundancy or compensation payment lump sum payment. Although that evidence was in response to a question regarding whether she and her husband contributed money to the purchase of the Punchbowl Property in 1992, it seems more likely, based on that response together with Ms Chahin’s evidence, that Mrs Tannous gave Ms Chahin $10,000 which she used to pay down the mortgage (also see above at [146]-[148]).

171    The applicant submitted that the funds required for the extra payments to pay down the mortgage on the Punchbowl Property could have come from a $20,000 Westpac loan with a mortgage over the Wiley Park Property taken out by Paul Tannous and Mr Tannous in 2001. However, the respondent characterised this submission as pure speculation. There is no evidence as to what this loan was for, with Paul Tannous giving evidence in cross-examination that he could not remember. It is a rather limited amount, with no explanation proffered. It was also submitted that the mortgage on the Punchbowl Property was rapidly reduced until 2001, after which it went up. That may be accepted. That was said by the applicant to indicate that Paul Tannous was contributing to the mortgage before 2001.

172    I note also that at the time of the loan application in 2001, Ms Chahin had $13,000 in her bank account. Therefore, on the evidence, she paid down the mortgage while also saving that amount of money. That evidence does not sit comfortably with the evidence that Ms Chahin the sole mortgage payer, even with the assistance just referred to.

173    In circumstances where Paul Tannous accepted that he had money that could have been used to pay the 92CBA Loan, I consider it likely that he was also a source of at least some extra repayments.

Steps taken to transfer the Punchbowl Property

174    The respondent submitted that steps were taken in 2011 to investigate changing the title to Ms Chahin’s, and possibly her husband’s, name. Ms Chahin relied on letters produced in the evidence of Paul Tannous from his solicitor, Mr Shad, that were addressed to him and his wife. The respondent submitted that those letters advised the stamp duty on a transfer would be about $10,000, which, in her straitened circumstances, posed a practical barrier to the transfer of the Punchbowl Property.

175    The letter to Paul Tannous and his wife dated 21 February 2011 was entitled “Title Searches” and related to Paul Tannous’ property in Beverly Hills, the Lakemba Property and the Punchbowl Property. The letter: included the results of title searches undertaken for each of the properties; stated that the transfer of Paul Tannous’ interest in the Lakemba Property to his parents would attract stamp duty on only 1% of his share; and discussed arrangements for the sale of the property in Beverly Hills (which occurred in 2012). In relation to the Punchbowl Property, Mr Shad informed Paul and Margo Tannous that the transfer of half the property would involve paying stamp duty on half of the property, and that a valuation would be required. A follow up letter from Mr Shad dated 7 March 2011 again relates to more than one property, namely the Lakemba Property and the Punchbowl Property. The letter states that the transfer of the Punchbowl Property to Ms Chahin, or her nominee, involves a stamp duty payment of $10,072.50, payable by Bank Cheque.

176    The significance of this evidence is unclear from the respondent’s submissions, although I presume it is contended to support the respondent’s case that Paul Tannous is not a beneficial owner of the Punchbowl Property.

177    It is to be noted that this legal advice was sought and received many years after the purchase of the Punchbowl Property and at a time when the respondent and her husband had been married and living in the house for some years.

178    Moreover, the evidence is not as clear as the respondent submits. Aspects of it are problematic.

179    Ms Chahin’s evidence was that it was she who, at this time in 2011, raised the issue of a transfer of the property with Paul Tannous. Ms Chahin, in her affidavit, stated:

Once my marriage to Pierre had proven itself with time, we had children together, and we were in a financially secure position, I wanted to transfer the Property into our names.

180    On that basis, Ms Chahin stated that on one occasion in early 2011, she approached Paul Tannous about taking his name off the title of the Punchbowl Property and he volunteered to speak to his lawyers about it.

181    However, as explained above at [174], the letters received from Mr Shad involve property matters beyond the Punchbowl Property that are specific to Paul Tannous. Paul Tannous was addressing his property holdings at a time when the evidence establishes that he and his wife had substantial debt. His evidence was that he had told Mr Shad he was buying another property, which, he accepted in cross-examination, was false. Paul Tannous was evasive during cross-examination on the topic of his finances at that time, and regarding the purpose of seeking advice from Mr Shad. However, it is plain on the evidence that he was experiencing significant financial issues. For example, there appears to be a debt for approximately $1.1 million on the mortgage for the property in Beverly Hills and he was liable for substantial tax debts owed by his company.

182    Paul Tannous’ evidence generally as to his dealings with Mr Shad at the time and his explanation for the reference made in the letters from Mr Shad to other properties was inconsistent and unsatisfactory. He denied that he was trying to sell his properties to raise money, but the letter dated 21 February 2011 expressly refers to the sale of the property in Beverly Hills. Paul Tannous eventually agreed that he went to Mr Shad to get advice about selling an asset, but denied that he was attempting to sell his share in the Punchbowl Property to Ms Chahin. He maintained that he only required her to pay the stamp duty involved in the transfer.

183    The respondent submitted that if he had wanted Ms Chahin to purchase his share of the Punchbowl Property, it could be expected that: the solicitor’s advice would have dealt with more than stamp duty; and the complicated accounting for contribution would have been raised as a central issue. I do not accept that would necessarily be so in circumstances where, for example, only preliminary advice was being given and any sale was in the context of a sibling relationship. This submission does not advance the respondent’s case given the unsatisfactory and inconsistent nature of the evidence on this topic.

184    I accept the applicant’s submission that the fact other properties were discussed in the advice makes it unlikely Ms Chahin initiated the idea that Paul Tannous transfer his interest in the Punchbowl Property to her. As apparent from Ms Chahin’s evidence referred to at [179], she intended to have the property transferred when, inter alia, she was financially secure. However, Ms Chahin gave evidence that at the time of the potential transfer, she and her husband did not have sufficient funds to pay the $10,000 stamp duty. It seems unlikely that, in those circumstances, she would have initiated the transfer of the Punchbowl Property to her on the basis that she was financially secure. The evidence was also silent as to why the respondent would wait until she was financially secure if the position of ownership was as she contends.

185    On Ms Chahin’s evidence and on her explanation of statements in various documents, her belief was that she could only legally claim she owned 50 percent of the Punchbowl Property. The evidence establishes that the redraw facility on Ms and Mr Chahin’s account would have enabled the $10,000 stamp duty to be paid for extended periods in 2012-2015 (although they gave evidence that they did not want to use the redraw facility to avoid financial difficulties). However, it should be noted that using the redraw facility would have given Ms Chahin and her husband the financial security of being sole home owners. In circumstances where they in fact sought to be sole home owners, the explanations for not doing so, if nothing beyond $10,000 was required, do not sit comfortably.

Conclusion

186    Having regard to all the evidence, I am not persuaded that beneficial ownership is other than as reflected on the title of the Punchbowl Property.

187    On the evidence, I am satisfied that the respondent and Paul Tannous’ intention at the time of the purchase was for each to hold a 50 percent beneficial share of the Punchbowl Property.

188    First, all of the contemporaneous documentation associated with the purchase of the Punchbowl Property is consistent with the common intention of joint beneficial ownership. The parties were legally represented during that process. The later documentation, in so far as it reflects on the time of the purchase, is also consistent with that common intention. These documents are not explicable on the respondent’s case.

189    Second, consistent with that: Paul Tannous was actively involved in the purchase financially; he was a co-mortgagor of the 92CBA loan; he mortgaged the Wiley Park Property; and the respondent has not produced any evidence which could satisfactorily explain how the deposit could have been paid in the manner she contends. The only probable means by which the deposit was paid was with a financial contribution by Paul Tannous. Similarly, there are unanswered questions, on the respondent’s case, as to her ability to pay the mortgage down until 2001. Moreover, on the purchase being completed and the property rented as intended, Paul Tannous immediately declared the income from the rent and claimed deductions for the mortgage repayments in his tax returns.

190    Third, although it may be accepted that some conversations occurred within the family at the time of purchase of the Punchbowl Property and that it was considered best if Paul Tannous was involved in the purchase, the respondent has not established, on balance, that the beneficial ownership of the Punchbowl Property was intended to be any way other than as the title reflects. There are issues with, inter alia, the reliability of the witnesses’ evidence of those conversations. There are also unexplained gaps in the evidence. Ms Chahin’s decision to move into the Punchbowl Property in 2005 may have coloured the witnesses’ memory of the events at the time of the purchase. Paul Tannous holding his share of the Punchbowl Property on trust for Ms Chahin may be the position that they now desire. However, that is not sufficient. I do not accept their evidence that Paul Tannous was not to be a beneficial owner as reflected on the title. Nor do I accept their evidence that he did not contribute to the purchase price.

191    Fourth, the Punchbowl Property was purchased as an investment property. That it may have been decided that Ms Chahin would have responsibility for its management, does not establish the common intention contended by the respondent. As explained, Paul Tannous immediately accounted for the rental income of the Punchbowl Property, and claimed deductions for mortgage repayments in his tax returns, continuing to do so until 2005. This is entirely consistent with the common intention that Ms Chahin and Paul Tannous each held a 50 percent beneficial share.

192    Fifth, in any event, the respondent’s submission that Paul Tannous’ name was on the title of the Punchbowl Property to protect her is inconsistent with her case that Paul Tannous was on the deed in name only. That approach could only be effective if he had beneficial ownership consistent with the documents reflecting the true position.

193    As explained above, the respondent’s case was based primarily on: an intention said to arise from the conversations at the time of the purchase; the fact money was gifted to her (and not Paul Tannous); that the respondent used her savings for the purchase; and that there was no contribution by Paul Tannous to it. For the reasons explained above, the conversations do not establish the contention. I do not accept that it has been established that the gift was for Ms Chahin alone. Although Ms Chahin did use her savings, Paul Tannous contributed the Purchase Price. Moreover, none of those matters, or what was said to be later conduct, account for the contemporaneous documents and later formal documentary evidence (which are consistent with the title accurately reflecting the beneficial ownership, and their common intention at the time of purchase).

194    The respondent has not established that Paul Tannous was holding the property on trust for her.

195    In light of my findings and noting that affidavits of fitness of the proposed trustees have been read and a consent to act as trustees has been filed, it is appropriate that the orders sought by the applicant under s 66G of the Conveyancing Act be made and the cross-claim be dismissed.

Associate:

Dated:    30 November 2022