Papas v Co

HIS HONOUR: These proceedings were commenced by the Plaintiff, Stephanie Papas, by Summons filed in the Family Provision List on 23 December 2016. On the first return date of the Summons, which was 3 February 2017, this Court ordered that the matter proceed by pleadings.

On 9 February 2017, the Plaintiff filed a Statement of Claim in which she sought, in broad summary, the following relief:

The Defendants named in the Statement of Claim are Vinh Tran Co, the first Defendant, and Jessie Rattanathip, the second Defendant, each of whom is a sibling of the Plaintiff.

Without intending any disrespect, I shall, hereafter, adopt the preferred names used by the parties during the hearing, and for other family members, after introduction.

Van Chi Co (“the deceased”) died on 18 January 2016, at the age of 74. Each of the parties is the child of the deceased. Vinh was born in June 1973, in Vietnam, and is now aged 45 years; Jessie was born in September 1975, in Vietnam, and is now aged almost 43 years; and Stephanie was born in January 1984, in New Zealand, and is now aged 34 years. There was a fourth child of the deceased, Simon, who was born, in New Zealand, in May 1986. Simon had played no part in the proceedings prior to his death in March 2018.

The first Defendant filed a Defence on 16 March 2017 and the second Defendant filed a Defence on 17 March 2017. By the date of the hearing, reliance was placed on the fourth Amended Defence of the first Defendant and the Amended Defence of the second Defendant. In circumstances to which I shall come, the first Defendant also relied upon a Cross-Claim.

The Defendants denied that Stephanie was entitled to any relief and they sought the dismissal of the Statement of Claim in its entirety. The hearing occupied three full days of Court time.

It is fair to say that a generally adversarial approach to the litigation, despite the family relationship of the parties, was taken throughout the proceedings on both sides. Several opportunities were given to them to resolve their disputes, both before, and after, the hearing commenced, all of which proved unsuccessful. It would seem that one, or all, of them, adopted an intractable position. What has been written is not a criticism, but as will be read, the natural consequence has been that the costs that have been incurred are disproportionate to the value of the claims being made on each side. Furthermore, the resentment and animosity between the protagonists, on public display, will, unavoidably, be destructive of any continuation of what was, at one time, a close the familial relationship (at least between Stephanie and Vinh).

Whilst many matters were in dispute, in relation to the claim for the family provision order, it was not in dispute that:

(Although not expressly referred to as property that could be designated as notional estate, there was no dispute that $6,617, comprising the member’s account balance of the deceased ($1,817) and an insured benefit ($4,800), was distributed to Vinh, by the Trustee of the HESTA Industry Super Fund, after the commencement of the proceedings: Ex SP10. Clearly, even if designated as notional estate, that amount would not provide the fund from which additional provision, as sought, could be made for Stephanie.)

On 8 February 2018, the matter was listed, for hearing, for two days commencing in the Family Provision Running List, on 21 June 2018. Upon receipt by the Court, shortly before the hearing, of three folders that were said to comprise the Court Book and the documents upon which the parties intended to rely, and having briefly considered the nature of the proceedings, the Court formed the view that the case could not be completed within two days. The response, from each counsel, when an email was sent enquiring whether the matter would be completed within the allotted time, was somewhat equivocal.

At the commencement of the hearing, after some debate, the legal representatives, with apparent reluctance, confirmed that the case might not conclude within the allotted time. (In the events that have happened, the hearing did, in fact, take three full days.)

The parties were then told that the Court would commence the hearing for one day, and then adjourn the hearing, part heard, to 16 and 17 July 2018. That is what has occurred.

The Court requires the assistance of legal practitioners, to provide accurate estimates of hearing duration. This is particularly important in the Family Provision Running List when, based upon estimates provided by legal practitioners, a number of matters are listed for hearing consecutively.

During the course of the opening addresses, counsel for the Defendants stated that “our case is that … the real owner of the [Guildford property] is Vinh Co [the first Defendant]. So, on one view, there is no [actual] estate”: T2.45 – T2.49.

A short time later, the following discussion took place between the Bench and counsel: T34 – T37. Although it is extensive, it is necessary to set it out as it assisted in the determination of the procedural problem that was raised:

The matter of a Cross-Claim was raised again, following the long adjournment, when counsel for the Defendants stated, at T52.17 – T52.30:

Again, at T94.06, counsel for the Defendants repeated that the proposed Cross-Claim would be served “by Monday” (which was 25 June 2018).

In fact, a copy of the proposed Cross-Claim was not provided to the legal representatives of Stephanie until 11 July 2018, that is, 2 working days before the adjourned date for hearing.

The Plaintiff did not consent to the proposed Cross-Claim being filed.

Section 22(1) of the Civil Procedure Act 2005 (NSW), the chapeau to which is the “Defendant’s right to cross-claim”, relevantly, provides for the bringing of a cross-claim:

(Sub-section (2), which relates to relief sought against a person who is not a plaintiff in the first proceedings, does not apply.)

The procedural rules relating to cross-claims are contained in the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), Part 9. Other procedural rules, which are relevant to the question before the Court, are contained in UCPR, Parts 1 and 14.

UCPR rule 9.1 provides:

UCPR, rule 9.1(3), provides that subject to Part 9, the UCPR applies to a cross-claim in the same way that the rules apply to a statement of claim. A defence to a statement of claim is to be filed within 28 days after service on the Defendant of the statement of claim, or such other time as the Court directs: UCPR, rule 14.3.

UCPR, rule 1.12 provides:

As no Cross-Claim had been made in accordance with UCPR rule 9.1, Vinh required an order extending the time for the making of the Cross-Claim. It was for him, as the party seeking the extension of time, to satisfy the Court that it was appropriate to make the order.

In determining whether to exercise its power to extend the time for the making of the Cross-Claim, the Court must have regard to the mandatory considerations identified in Part 6 of the Civil Procedure Act. In particular, the Court was required, in accordance with s 58 of the Act, to seek to act in accordance with the dictates of justice. For the purpose of deciding what the “dictates of justice” are in a particular case, the Court must have regard to sections 56 and 57 of the Civil Procedure Act and may have regard to the matters in s 58(2)(b) and give effect to the overriding purpose of the Act referred to in s 56(1), which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440, Price J (as his Honour then was), at [14].

As the discussion between Bench and counsel at the commencement of the proceedings demonstrates, the explanation for the Cross-Claim not having been brought at an earlier time was that Vinh made a conscious decision to not make a Cross-Claim because of the good relationship that he had with Jessie. It was not a matter of inadvertence, or inattention, but rather a deliberate choice that he made.

Why the Cross-Claim was sought to be made subsequently, was not the subject of evidence brought on the application, although counsel for Vinh stated from the Bar table, without objection, that Jessie had conceded Vinh’s claim, and that there was no likelihood of a disagreement between them and that there would be no effect on their relationship if the claim were made: T97.36 – T98.09.

In relation to the potential conflict of interest that would arise as between the Defendants, as Jessie is the sole executrix named in the Will of the deceased, she was named as the first Cross-Defendant in the proposed Cross-Claim. As counsel stated that she would not oppose the grant of relief sought by Vinh it appeared that there was no need for her to be separately represented.

In the course of argument, counsel for the Plaintiff was asked to elaborate on the reasons why Stephanie did not consent to the filing of the proposed Cross-Claim. The primary bases stated were its late service and Vinh’s express disavowal to rely upon a Cross-Claim stated earlier in the proceedings.

Importantly, it was not suggested by counsel for Stephanie that granting leave to file the Cross-Claim would require her to serve further evidence, or that it would jeopardise the hearing being concluded within the time allocated. There was no submission made that there would be any disruption involved in the orderly continuation of the hearing.

Counsel for Stephanie raised the possibility that documents would need to be tendered, but doing so would not lengthen the proceedings. He required confirmation, from counsel for the Defendants, which was given, that no additional evidence from Vinh, in support of the proposed Cross-Claim, would be necessary.

Subject to one matter to which I shall next refer, it is clear that the issues raised in Stephanie's proceedings, and by Vinh, in the proposed Cross-Claim, are part of the broad dispute between the parties that, as will be read, had been boiling since, at least, early 2011. Stephanie's counsel did not submit to the contrary. To the extent that it is relevant, he did not suggest that the facts alleged were not related to, or connected with, the subject matter of Stephanie's claims for relief.

There is little doubt that the Cross-Claim could well have been brought considerably earlier. It is to be noted, in this regard, that these proceedings had been before the Court on 10 occasions before, on 8 February 2018, it was set down for hearing. There was then a pre-trial directions hearing on 21 May 2018. At the time the proposed Cross-Claim was provided to the legal representatives of Stephanie, the proceedings were part heard.

Having considered the form of the proposed Cross-Claim, it raised, for the most part, matters that had been the subject of detailed affidavit evidence that had been read, documentation that formed part of the evidence that had been tendered, and by the time it was dealt with on 16 July 2018, also matters upon which the Plaintiff had already been cross-examined.

The usual approach taken by the Court, so far as is practicable, is to determine all aspects of the controversy in the same suit. This approach, sometimes, is “expressed in the obscure maxim ‘Equity delights to do justice’, which alludes to the Court’s wish to resolve the whole controversy and give effect to all equities of all persons involved in the controversy. The same policy is expressed in s 60 and in s 63 of the Supreme Court Act 1970”: Yeshiva Properties No 1 Pty Limited v Marshall [2005] NSWCA 23, Bryson JA, at [77]; Across Australia Finance Pty Ltd v Kalls [2008] NSWSC 783, per Bryson AJ, at [26].

It is also necessary to remember UCPR, rule 36.1, which states:

As will be read, there was material before the Court that established that there may be substance, at least to part, of the proposed Cross-Claim, namely the financial contributions made by Vinh to the purchase of the Guildford property. In the circumstances, a viable Cross-Claim should be able to be brought, albeit that it has been brought as late as it had.

One further matter, favouring the extension of the time to file the proposed Cross-Claim, was the Court’s general reluctance to preclude a party from litigating a cause of action that he wishes to litigate, especially in the circumstance where counsel for the other party has not been able to articulate any prejudice that cannot be remedied by costs. A just resolution of proceedings remains the paramount purpose of s 56 of the Civil Procedure Act. It is, principally, because the Plaintiff has not been prejudiced that leave to file a Cross-Claim has been granted. In other circumstances, the application could well have disrupted the court proceedings and been procedurally unfair to the Plaintiff.

Yet, there was one aspect of the proposed Cross-Claim that was not the subject of evidence, and that was what is alleged in Paragraph 14, namely that:

It was said that one term of which agreement was that the deceased would “leave his interest in the property on his death to Vinh”. There were also some particulars of the alleged agreement that had not been raised: for example, particulars (v), (vi), and (vii), each of which I shall not repeat.

The agreement alleged to have been made between Vinh and the deceased is also relevant to Jessie, since, she would have needed to obtain advice about the merits of the allegation and whether she would be able to make a claim for a family provision order out of the estate of the deceased if that claim were advanced.

This was not a matter raised in the fourth Amended Defence, or so it would appear, otherwise, by Vinh. In all the circumstances, I concluded that the claim for relief that depended on Paragraph 14 of the proposed Cross-Claim (Paragraphs 2 and 3 of the relief claimed in the proposed Cross-Claim), relating to an alleged agreement between him and the deceased, should not be permitted to be advanced at the late stage of the proceedings.

At the conclusion of the argument, I indicated that subject to seeing a proposed form of Cross-Claim that did not include the allegation about an agreement between Vinh and the deceased, and without the relief sought on the basis of such an agreement, Vinh would be permitted to file the Cross-Claim out of time.

However, I permitted Vinh to include, in the proposed Cross-Claim, the amounts alleged to have been contributed by him to the Guildford property, both at the time of its purchase in 2005, and then, in early 2009, when title to the Guildford property was transferred from Stephanie to the deceased and Vinh in order to give meaning to the resulting trust claim.

In this way, the Court has to consider whether, if proved, the allegations made, give rise to any form of equitable relief to which Vinh would be entitled, such as a resulting trust.

On the morning of the third day of the hearing, a form of Cross-Claim was produced. Having considered it, and as there were no further submissions, by counsel for Stephanie, against the filing of the form of the Cross-Claim, the Court granted leave to Vinh to file and serve the Cross-Claim. This was done during the course of the third day of the hearing.

Of course, Stephanie did not have any opportunity to file a Defence to the Cross-Claim. I have treated the allegations made in the Cross-Claim as either not admitted, or denied, by Stephanie, bearing in mind the evidence already read, and also bearing in mind the cross-examination of Vinh, which was in progress when the final version of the Cross-Claim was produced.

Stephanie’s counsel having raised the issue previously, the first Defendant was reminded by the Court that there were likely to be costs consequences by the decision having been taken as late as it was to serving the proposed Cross-Claim and obtaining leave to file the Cross-Claim. (In light of my conclusions and the costs order that was agreed in the event of those conclusions, the costs thrown away do not arise.)

Since Jessie did not oppose the filing of the Cross-Claim, I have treated her response to it as a submitting one.

The Court is required to determine, on the balance of probabilities, taking into account the matters enumerated in s 140(2) of the Evidence Act 1995 (NSW), which version of events that are in contest is the more likely and plausible. Those matters are (a) the nature of the cause of action or defence, (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

It is also necessary to bear in mind the careful scrutiny to which evidence about conversations with, or between, one, or other, of the parties, and the deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544, per Isaacs J, at 548-549. This is because he is unavailable, at the hearing, to admit, or directly deny, specific allegations.

McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].

It is also necessary to remember the oft-cited dictum of McLelland CJ in Eq from Watson v Foxman (1995) 49 NSWLR 315 at 319:

This dictum is relevant in the circumstances of this case when one also has the added sub-stratum of a cordial familial relationship that existed between Stephanie and Vinh, particularly between 2005 and 2009.

Also, a Court, in cases involving events, some of which occurred long 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].

More recently, the Court of Appeal in Queensland wrote, in Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, at [50]-[51]:

I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, at 431:

The circumstances of this case, also make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122-123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15, at [15]), appropriate to remember:

In this case, because of the view I take of Stephanie’s evidence, and also, in one particular respect, of Vinh’s evidence, I shall place much more reliance on contemporaneous documents, as, in my view, those documents reveal a much more probable account of the events that had occurred and assists in assessing the reliability of the evidence given by Stephanie and by Vinh.

Also, because it may be relevant, particularly to both Stephanie’s and Vinh’s evidence, what O’Loughlin J had written in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1, at [118] and [121] is relevant:

In other words, a lie does not necessarily prove the opposite of the lie even though, depending on the subject matter and its significance in the case, it may indicate a consciousness on the part of the witness that the truth would not have assisted her or his case, or may amount to evidence that is corroborative of other evidence: Tobin v Ezekiel (2012) 83 NSWLR 757 at 775; [2012] NSWCA 285, at [60].

What Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48, at [119]-[120], must be remembered:

Also, as was written by Emmett J (as his Honour then was) in Warner v Hung; Re Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48]:

In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, also expressed the view, at [44] – [52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426, at [126].

In reaching my conclusions, I have considered the inherent probabilities, aided by contemporaneous documents that are not disputed, circumstantial evidence tending to support one account as opposed to the other, and the overall impression of the witnesses.

As will be read, there was a flurry of communications between lawyers for Stephanie and for Vinh in 2011, following which Stephanie did nothing to assert a claim until a caveat was lodged in 2016. She asserted a lack of financial capacity to do so.

Recently, in Hintze v Tsering [2018] NSWSC 1190, Sackar J dealt with the issue of remaining silent when speech could have been expected, or failing to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected. In this case, the allegations of not having signed the Transfer, and of not being aware of the transfer of the Guildford property out of her name, are matters of some significance.

I respectfully adopt what his Honour wrote at [58] – [61]:

In relation to the arrangements or agreements between family members, I have remembered what was written by Brereton J (as his Honour then was) in Ashton v Pratt (No 2) [2012] NSWSC 3 at [29] – [36].

In relation to what is said to have been agreed between Stephanie and Vinh, regarding the payment of $30,000, in respect of the Guildford property, and the repayment of the loan of $30,000 and $5,000 of interest, whilst there is a rebuttable presumption of fact that arrangements, or agreements, made in a family, are not intended to have legal force (see, Darmanin v Cowan [2010] NSWSC 1118, at [206]), as will be read, I am satisfied that at the time of making the agreement, in each case, the parties did regard their arrangements in terms of legal consequences.

Next, I set out a chronology of the background facts that are not substantially in issue, or which I am satisfied, based upon the evidence, is established on the balance of probabilities.

The deceased was born in Haiphong, Vietnam, in April 1941. He was of Chinese ethnicity.

On a date not disclosed in the evidence, he formed a relationship with Thuan Thi Tran (“Tran”), who was also born in Haiphong, Vietnam. She was born in February 1952. The four children of their relationship have been referred to above.

(There is a dispute about whether the deceased and Tran were married, Stephanie asserting that she understood that they were, whilst Jessie says that they were not. Nothing turns on this dispute of fact, as all parties agreed that Tran was an eligible person in relation to Stephanie’s claim for a family provision order.)

In 1979, the deceased, Vinh, and Jessie, left Vietnam and moved, as refugees, to Hong Kong. It was necessary for the deceased to sell all of the family’s possessions and to obtain a loan to purchase, and reserve, four seats on the boat. (Subsequently, Tran refused to, or did not, leave Vietnam. Again, the dispute about this fact is irrelevant to the determination of these proceedings.)

They were granted refugee status, in about 1980, in New Zealand. In about 1982, Tran joined the rest of the family in New Zealand. There, as stated previously, two of the children were born. In about 1987, the whole family moved to Australia.

Initially, after moving to Sydney, the family lived in Marrickville, where they lived in rented accommodation. In about 1989 or 1990, they moved to other rented accommodation in Punchbowl, and then, in 1993, to Croydon Park, where they also lived in rented accommodation.

The deceased and Tran were said to be not well educated. The deceased’s English was poor, but he spoke the Cantonese, Mandarin and Vietnamese languages.

The deceased was employed, casually, as a Community Volunteer for the Ashfield Community Centre working one day a fortnight providing assistance to elderly people in the Chinese community on outings, or by assisting them with medical appointments or shopping trips.

Stephanie stated that, during her childhood and school years, she did not remember the deceased working in paid employment on a regular basis. She did recall his volunteer work.

Jessie gave oral evidence that the deceased suffered from a number of medical conditions which resulted in his inability to work more than casually: T215.45 – T215.50. (She was not cross-examined on this evidence.)

How the deceased came to be a member of the HESTA Superannuation Fund was not the subject of any evidence. In any event, subject to what I shall say later regarding Stephanie’s evidence on this topic, which evidence I do not accept, it seemed to have been accepted, by all the parties, that, for almost all of his time in Sydney, he, and whilst they were together, Tran, was each in receipt of social security benefits.

There is evidence that the deceased received, in the financial year ending 30 June 2005, by way of disability support pension, the amount of $10,607.88; that he received, in the financial year ending 30 June 2006, by way of disability support pension, the amount of $8,112, and by way of age pension, the amount of $2,533; that he received, in the financial year ending 30 June 2007, by way of age pension, the amount of $11,404; that he received, in the financial year ending 30 June 2008, by way of age pension, the amount of $11,397; that, he received, in the financial year ending 30 June 2009, by way of age pension, the amount of $12,803; that he received, in the financial year ending 30 June 2010, by way of age pension, the amount of $16,771; that he received, in the financial year ending 30 June 2011, by way of age pension, the amount of $17,177; that he received, in the financial year ending 30 June 2012, by way of age pension, the amount of $18,381; that he received, in the financial year ending 30 June 2013, by way of age pension, the amount of $19,095; that he received, in the financial year ending 30 June 2014,by way of age pension, the amount of $20,079; that he received, in the financial year ending 30 June 2015, by way of age pension, the amount of $20,733; and that he received, in the financial year ending 30 June 2016, by way of age pension, the amount of $12,931.

Tran, it would seem, was not employed and attended to the household duties. Stephanie said that Tran “would work, from time to time, for friends – the work was casual and irregular and I believe that the pay was minimal”.

Jessie gave poignant evidence, stating that:

In 1999, after an argument with the deceased, Tran left the family home. The family members did not know to where she went, or where she remained, for about a year. Then, she and the deceased met, unexpectedly, and Tran agreed to return to the Croydon home.

When she returned, the deceased moved in, for a short time, with Vinh, who was living in a property at Bankstown, which he and Jessie had purchased together. A short time later, the deceased moved back to the rented accommodation at Croydon.

Stephanie commenced working part-time in 1998, at the age of 14 years 9 months at a fish and chip shop. She worked, on Thursday nights, for about 4 hours, and sometimes on the weekend.

Stephanie left school, whilst in Year 11, in about 2000, and then began working, full-time, as a cashier at Woolworths, and then as a shop assistant. She moved away from the home of her parents in early 2004 and lived in rented accommodation with a man called Gene: T66.11 – T67.04.

Stephanie moved back to live with her parents, at Croydon in 2005: T67.50 – T68.01.

In 2008, Stephanie began a relationship with a Greek Australian, Anthony Papas. She moved to Brisbane, meeting him there, in late February 2009. They were married, in Sydney, in 2011: T39.42 – T39.49.

Tran is still alive, but has played no part in these proceedings. Indeed, Jessie wrote in an affidavit sworn on 22 May 2017, and confirmed that she has not had any contact with Tran (or with Stephanie) “for over 10 years”, including, in respect of Stephanie, “in the last couple of years that she lived with [her] father at the Guildford house”: T212.28 – T212.38.

Stephanie, who appears to have maintained contact with Tran, indicated by her counsel, that “Tran resides in Sydney; that she is aware of these proceedings but does not wish to be involved or make a claim against [the deceased’s] estate; [and] [s]he does not wish to disclose her address to the Defendants”: T106.31 – T106.46.

The deceased left a duly executed Will that he made on 15 December 2015. In that Will, he appointed Jessie to be the sole executor of his Will and sole trustee of his estate. This Court granted Probate of that Will to Jessie on 8 September 2016.

By Clause 5 of the Will, the deceased left the whole of his estate on trust to sell, call in, and convert it into money; to pay all debts, funeral and testamentary expenses, including all duties and taxes payable in respect of the estate; and, then, gave the residue, as to 55 per cent, to Vinh; 35 per cent to Jessie; 5 per cent to Stephanie and 5 per cent to Simon.

Since Simon died more than 30 days after the deceased, he attained a vested interest in the deceased’s estate: Clause 4 of the Will. The parties agreed that in the event an order for provision is made for Stephanie, that Simon’s share of the residue should not bear any part of the burden of that provision: T31.38 – T31.44. (That concession was subject to the determination of the Cross-Claim filed by Vinh: T221; T255.45 – T256.04.)

In the Inventory of Property attached to, and placed inside, the Probate document, there was no property said to be solely owned by the deceased at the date of his death. However, the Guildford property was disclosed as being owned by the deceased (as to 95 per cent) and Vinh (as to 5 per cent) as tenants in common.

The value of the Guildford property, as disclosed in the Inventory of Property, was said to be $850,000. Accordingly, as disclosed on title, the deceased’s percentage share would have had a gross value of $807,500 (without any costs and disbursements of sale).

At the hearing, the parties, ultimately, agreed that, subject to the competing claims as to beneficial ownership, what was said to be the deceased’s 95 per cent share of the Guildford property was the only asset of the deceased’s actual estate and that the total value of the Guildford property, at the date of hearing, should be taken to be $940,000.

It was also agreed that the estimated costs and expenses of sale of the Guildford property were $27,500, with the result that the percentage share of the deceased in the Guildford property would have a value of $866,875 (being 95 per cent of $912,500): T103.23 – T104.01.

From that amount, the debts of the deceased’s estate ($29,521) would also have to be paid, leaving an estate with an estimated value of $837,354, before the costs of the proceedings, if an order for costs is made, are deducted: T104.03 – T104.12.

As set out above, subject to the Cross-Claim, the parties also agreed that Simon’s share (5 per cent) of the estate, before costs are deducted, should be paid to his estate. That share, if the deceased’s interest in the Guildford property remained as part of his actual estate, equates to $41,867.

Taking all these deductions into account, the net value of the deceased’s estate, if any, without any costs of the proceedings being deducted, would be $795,487.

The parties agreed that if both trust claims failed, and if a family provision order were made, it should be by way of an increased percentage of the residue of the estate (bearing in mind she is entitled to 5 per cent of residue under the Will of the deceased): T19.10 – T19.22; T31.

I am satisfied, should it be necessary, that this is an appropriate way to proceed as there is a dispute about the true market value of the Guildford property.

(In coming to the conclusion as to the method of calculating any family provision order, if any is to be made in favour of the Plaintiff, I have remembered that McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192, at [96], raised the concern that “to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs”.

Whilst this is undoubtedly true, it seems to me that in some cases, for example where the estate has a value that cannot be precisely determined because of the volatility of the real estate market, to make a lump sum order will not be the most appropriate way of determining what is “proper” in all the circumstances of the case. In this way, both the Plaintiff and the beneficiaries would benefit if the Guildford property were sold for a price greater than had been agreed for the purposes of the hearing, and each would be detrimentally affected if it sold for less than the agreed figure. There would also be certainty of the price, the costs and the expenses upon which calculations could be made. It cannot be forgotten that the actual value of the estate is a relevant consideration in determining the adequacy and propriety of the provision. Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes, "in any other manner the Court thinks fit".)

The only eligible persons are the three children of the deceased and Tran, who is described by Jessie as the “former de facto partner of the deceased”. Only the Plaintiff has made a claim for a family provision order.

There was no evidence that Simon, or Tran had been served with a notice of the Plaintiff’s application and of the Court's power to disregard his, or her, interests, in the manner and form prescribed by the regulations or rules of Court. In regard to Simon, that omission has not caused a problem as he has died and there is an agreement between the parties that his share of residue will not bear part, or all, of the provision, if any, made for Stephanie.

In view of the statement made by counsel for Stephanie, which was treated as an agreed fact, in all the circumstances, the Court will disregard the interests of Tran, as a person by, or in respect of whom, an application for a family provision order may be made but who has not made an application as service of the prescribed form of notice upon her is unnecessary.

Jessie, whose affidavits were read, and who was cross-examined, did not disclose any information about her financial resources and needs in her affidavits, but did provide evidence regarding why she had a legitimate claim on the bounty of the deceased.

As I have stated in other cases, a beneficiary is entitled to elect to remain silent about her financial resources and needs and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and his preferable disposition to her as a beneficiary regardless of her financial resources or needs. The Act specifically provides that her, interests, as a beneficiary, cannot be disregarded, even though she has not made a claim: s 61(1). She is entitled to rely, as a chosen object of the deceased’s testamentary bounty, upon the terms of the Will.

Recently, in Amos v Hogg [2018] NSWSC 1226, at [33] - [42], I summarised the relevant principles, and, also, I repeated what I had written in Sammut v Kleemann [2012] NSWSC 1030, at [137] - [140], on this topic. In summary, the Court is entitled to infer that the beneficiary has adequate resources upon which to live and that she does not wish to advance a competing financial claim upon the bounty of the deceased. However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind.

Thus, even if the Court may infer that the beneficiary has no need for provision from the estate of the deceased, and, that, on a comparative basis, she is better off than the Plaintiff, her silence does not mean that her competing claim should not be evaluated. What is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her and his costs, calculated on the indemnity basis, should be paid out of the estate.

As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]:

However, as I have repeated many times, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.

In an affidavit affirmed on 26 June 2018, by Mr S J G Nicolau, the Plaintiff’s costs and disbursements, including the costs of mediation, to the conclusion of a 2 day hearing, calculated on the ordinary basis, were estimated to be “approximately $100,000”. Mr Nicolau also estimated that “approximately 40% of the costs have been incurred devoted to matters arising out of a claim for family provision and 60% of the costs have been devoted to the other issues raised in the proceedings”.

(As the hearing, in fact, took 3 days, and Mr Nicolau’s affidavit was affirmed after the first day of the hearing, presumably he was intending to provide an estimate of the Plaintiff’s costs to the conclusion of that 3 day hearing. Regardless, on the second day of the hearing, counsel for the Plaintiff and for the Defendants each accepted that the costs of the Plaintiff were estimated to be $100,000: T104.36 – T104.47.)

Mr Nicolau gave no evidence that his firm had entered into a conditional costs agreement with Stephanie. Indeed, no hint of such an agreement in relation to her costs was given at any time, until Stephanie, herself gave evidence of her belief that she would not have to pay costs to her solicitors if she was unsuccessful: T121.10 – T121.38.

On the third day of the hearing, having made enquiries of his instructing solicitor, counsel for Stephanie informed the Court that there was, in fact, “no conditional costs agreement between the Plaintiff and her legal representatives. The understanding between them is that, in the event she has to pay her own costs, she will not be sued to recover those costs by her own legal representatives”: T199.00 – T199.05.

In an affidavit sworn on 14 June 2018, by Ms N Audisho, the Defendants’ costs and disbursements, including the costs of mediation, to the conclusion of a 2 day hearing, calculated on the indemnity basis, were estimated to be $133,180.

No affidavit was relied upon updating the costs and disbursements as the hearing took 3 days. However, the Court was informed, without objection, by counsel for the Defendants, that the estimated costs and disbursements for the extra day of hearing would be $6,820, making the total estimated costs and disbursements $140,000

Not all of the Defendants’ costs and disbursements, would, necessarily, be payable out of the deceased’s estate, as only Jessie, as the executrix to whom Probate has been granted, is the party representing the estate of the deceased. Furthermore, Vinh, by his Cross-Claim is making a claim against the deceased’s estate and one that seeks to protect his own interests.

Whilst the estimates that have been given provide some basis for calculating the total of the legal costs and disbursements that may have to be paid out of the deceased’s estate before any distribution of that estate can take place, it is to be remembered that they are estimates only.

In this case, the parties’ legal representatives made submissions on the question of costs as neither party had served an Offer of Compromise or a Calderbank offer. I shall, therefore, deal with the issue of costs later in these reasons.

The parties also agreed, subject to the competing trust claims, that, in the event the costs estimates prove accurate, and if an order is made that the costs are to be paid out of the deceased’s estate, and if the deceased’s interest in the Guildford property does form part of his estate, the value of the estate, out of which an order could be made, would be about $555,487: T105.14 – T105.33.

Accordingly, if the trust claims fail, this is an estate of modest value, particularly if the costs estimates prove accurate and an order for the costs to come out of the estate is made.

By the conclusion of the submissions, it became clear that Stephanie’s case would be determined by reference to the claims made in relation to the beneficial ownership of the Guildford property and upon the amount, if any, to be repaid to Stephanie by reason of her agreement with Vinh for reimbursement of amounts paid towards the mortgage debt secured on the Guildford property ($30,000) and the loan made to her in August 2009 ($30,000) and interest ($5,000) on that loan.

It was accepted that if Vinh was successful on his claim for a resulting trust, there would be no estate out of which an order for additional provision could be made for Stephanie because the beneficial ownership of the Guildford property would be held for him. It was not suggested that the Guildford property, or any part of it, if held on trust for Vinh, could be designated as notional estate of the deceased, or that there was any other property, of sufficient value, that could be so designated, to enable an order for additional provision to be made in her favour.

Vinh and Jessie also agreed that in the event that Stephanie failed completely, neither would seek an order for costs to be paid by her: T255.12 – T255.20.

Leaving aside the claim for a family provision order, Stephanie’s claim that the Guildford property was held in trust for her was based upon the registration of the Transfer in 2009 “by fraudulent means”. It was put, in Stephanie’s opening written submissions, that:

Stephanie also pleaded that:

These, and other allegations relating to the financial contributions by Stephanie to the purchase of the Guildford property, were the subject of evidence by Stephanie. I shall deal with these allegations as it is necessary to determine whether she has established the allegations and also in order to calculate the contributions to the purchase price of the Guildford property made by the parties as part of the determination of the Cross-Claim.

No submissions were made concerning the allegation in the Statement of Claim, that between 1998 and 2005, “the deceased represented and promised to the Plaintiff that if the Plaintiff gave money she earned to the deceased, the deceased would buy real estate for the Plaintiff”, and that “[o]n many occasions from the time the Plaintiff first obtained casual employment in about 1998 until about 2005 and in reliance on the promise made by the deceased, the Plaintiff gave money she earned to the deceased”.

Presumably, this was because there was simply no evidence of any such promise made by the deceased, with the result that such a claim, if persisted with, undoubtedly, would have failed. That aspect of Stephanie’s claim could not succeed and it may be ignored.

In defence of Stephanie’s trust claim, and in support of his trust claim, Vinh relied upon the payments that he said he had made, and which Stephanie did not admit, to the purchase of the Guildford property at the time of its initial purchase in 2005, his payment of the amount due under a mortgage secured on title to the Guildford property, which mortgage debt Stephanie would have been obliged to repay, and payments made by him after the transfer of the Guildford property into the name of the deceased and himself in 2009.

Vinh also asserted that Stephanie was estopped, by her conduct, from denying that he and the deceased held the legal and beneficial interest in the Guildford property after its transfer to them. He relied upon “laches and delay”.

In relation to the loan of $30,000, Vinh did not dispute that Stephanie had lent him $30,000 in about August 2009. He also admitted that he had agreed to pay $5,000 by way of interest to her. He did not admit that the amount borrowed was to be repaid by the end of the 2009 calendar year or that the loan was to attract interest “at the rate [Stephanie] would have received if [the amount] had remained on deposit with Rabobank Australia Limited in a ‘Rabodirect High Interest Savings Account’”.

By way of defence to Stephanie’s claims for the loan and interest amounts, Vinh also asserted that the claim for repayment of the loan was not maintainable as the claim was brought more than 6 years from which the loan was made. In addition, he pleaded “laches and delay”. He simply denied that in breach of the loan agreement, he “had refused, failed or neglected to make the payments required at the end of the 2009 calendar year or at all”.

(It should be noted that the agreement for the loan of $30,000 and the $5,000 interest payable in respect thereof, made in about August 2009, was different from the amount of $30,000 that Vinh had agreed to pay to Stephanie in about April 2009, as reimbursement for part of the payments she had made towards principal and interest between the date of the purchase of the Guildford property and the date of its transfer out of her name into the name of the deceased and himself, after taking into account the value of the accommodation that she had received.)

Jessie’s amended Defence to the Statement of Claim broadly echoed Vinh’s defence.

The following matters should be regarded as the factual findings of the Court. Some are not in dispute between the parties, but to the extent that any are, I have carefully considered all of the evidence, particularly the documentary evidence, in stating what follows, as the findings of the Court.

The deceased encouraged his children to purchase property as a means of getting a start in life. In about 1995, the deceased organised for Vinh and Jessie to purchase a property, at Bankstown, for $184,000: T181.18 – T181.20. They obtained a loan for $120,000. Following its purchase, Vinh occupied the property and continued to do so until it was sold. The property was registered in their names. Vinh and Jessie were working and they shared the mortgage debt repayments.

How the balance of the purchase price of the Bankstown property was made up is not precisely known. The Defendants’ submissions, at Paragraph 12, state that “the balance [was] from savings that Vinh and Jessie had accumulated”. Nothing turns on this omission.

Whilst Vinh denied that their parents contributed the balance, he did not identify the source of the balance: T181.28 – T181.33.

This property at Bankstown was sold in about May 2014 for $649,000. After adjustment of council rates ($317) and water rates ($191), the payment of legal costs ($873) and a debt to the ANZ Banking Group Limited ($204,737.36), the amount of $410,423 was sent to Vinh and Jessie. Vinh gave evidence that of that amount, he paid Jessie $50,000 and used part of the balance to pay off the mortgage debt on the Guildford property: T182.03 - T182.16. He did not disclose how the amount paid to Jessie was calculated.

In about 2004, the deceased told Jessie and Vinh that he was going to encourage Stephanie and Simon to purchase a property. Later, the deceased told Vinh that he had spoken to them, that they had agreed to do so, that he would look for a property for them to purchase, and that they would be responsible for the repayment of the mortgage debt secured on the title to any property that was purchased.

The deceased also told Vinh that he (Vinh) would have to pay the deposit and also be the guarantor for the loan to be obtained by Stephanie. He said that the three would have an interest in any property that was purchased as Vinh “is putting himself at financial risk by being a guarantor”.

The deceased also said that the property would be purchased in Stephanie’s name, alone, as she would be entitled to the First Home Owner’s Grant. He said that, later on, a property would be purchased by Simon, who, then, also would be entitled to the First Home Owner’s Grant.

Vinh agreed to help in the purchase, by providing the deposit and giving a guarantee. Neither Vinh’s, nor Jessie’s, evidence, on these matters, was challenged and, in any event, are supported by what actually occurred.

Counsel for Stephanie asked Vinh, and also, Jessie, a number of questions regarding the deceased “organising” the purchase of property for his children: T181.18 – T181.20; T213.11 – T213.21. When each answered that the deceased had done so, counsel did not ask any further questions about what steps the deceased had performed.

When Jessie gave her evidence, the Court enquired of her what the deceased had done in relation to the purchase by her and Vinh of the Bankstown property and she said that in relation to the property purchase, that included “looking for properties … going with Vinh to inspect properties, and attending a solicitor’s office to arrange the sale of the property and going to the bank”: T215.22 – T215.24.

Jessie also gave the following evidence at T215.32 – T215.43:

In about May 2005, the deceased located the Guildford property and suggested that it be purchased. The purchase price was $430,000. He told Stephanie about the Guildford property but she did not go to inspect it.

The acquisition of the Guildford property appears to have been fairly straightforward. There is in evidence, a copy of a Trust Account Receipt dated 2 June 2005, from L J Hooker, Guildford, addressed to “Stephanie Co and Simon Co”, showing the receipt of $43,000, “by cash”, which was described as the deposit of 10% on the Guildford property. The receipt states that the money was received from Stephanie and Simon, but it was not suggested by Stephanie that either she, or Simon, had actually paid, or otherwise contributed to, the deposit. The name of the vendor and her solicitor, and the name of “the Purchaser’s solicitors”, Andresakis & Associates, were identified.

Also in evidence is a handwritten “Deposit Receipt”, dated 8 July 2005, from the Commonwealth Bank, Ashfield, the account name being “Stephanie Co”, the account identification number being shown, and $110,000, shown as the amount of the deposit. (There is a corresponding deposit in Stephanie’s Streamline Account with the Commonwealth Bank, showing $110,000.)

Vinh says, and his evidence was not challenged, that the deposit receipt was in his handwriting. He also said that he paid the whole of the amount at the Commonwealth Bank Ashfield, into Stephanie’s account.

Vinh’s evidence on the topic of the source of the deposit and the amount of $110,000 was vague in the extreme. He said, in relation to the deposit, that it had come from cash withdrawals that he had made from his income which had been deposited in the bank.

He had been served with two notices to produce (Ex. SP 8), in each of which he was required to produce “any document identifying the source or sources from which you obtained the cash in the sum of $43,000 … and the cash in the sum of $110,000”.

On the third day of the hearing, in re-examination, he produced some documents, which had not previously been produced, in response to the notices to produce, going to the source of the payments. In one, (Ex. VTC 8), being a Savings Maximiser Statement, in his name, for the period from 1 April 2005 to 30 June 2005, there was a withdrawal of $20,000 on 21 June 2005. Other documents (Ex. VTC 9), being a Streamline Account in his name, for different periods, most of which were in 2005, showed withdrawals of $800 (particularly in 2003) from the account. In the period 1 March 2005 to 31 May 2005, there transfers to another account of $1,500, $2,000, $2,000, $1,500, $2,000, $1,500 and $2,000 (a total of $12,500) and between 1 June 2005 and 4 August 2005, withdrawals of $2,500, $1,000, $1,500, $1,500, $1,200, and $2,000 (a total of $9,700). (I have omitted the reference to the withdrawal of $20,000 which was transferred into the account from the Savings Maximiser Statement.)

Whilst it is clear that these documents do not show withdrawals that total $153,000, Vinh maintained that he paid that total amount. Whilst he was asked questions about the source of the funds, it was not put to him, specifically, that he did not make the payments.

Had the matter been left there, there may have been a real question about whether Vinh had satisfied the Court that he had made the payments. But the matter was not left there. There is simply no other person who would have been able, and likely, to contribute to the purchase price of the Guildford property, other than Vinh.

Stephanie did not establish that she had contributed more than the amount of her borrowing, or that she had caused anyone else to contribute to the balance of the purchase price on her behalf. Her suggestion that the deceased had contributed is only speculation, and it is inconsistent with Jessie’s evidence, which I accept, that the deceased did not tell her that he had made any contribution to the purchase price of the Guildford property.

Furthermore, Stephanie’s evidence that, as a teenager, she had paid all of the income that she had earned from part time work to the deceased, which he had used to build up a fund, is implausible in the extreme. Even if she did give the deceased all of her wages, from part time work, it is highly unlikely that her earnings, as a teenager, working part time, would have amounted to anything like $153,000. (In this regard, it is to be remembered that Stephanie, in 2005, was only 21 years old.)

She had stated in her affidavit in reply that Simon “did not ever make or contribute to the mortgage payments or make any payment in the nature of rent”.

Jessie did not give any evidence that she had done so.

Whilst there is no direct trail of withdrawals, and there is an absence of complete documentation, that shows the path of $43,000 and $110,000 from Vinh, I am satisfied, on the balance of probabilities, that Vinh contributed these amounts to the purchase price of the Guildford property. In this regard, I am prepared to accept Vinh’s evidence.

A contract for the purchase of the Guildford property was dated 28 June 2005.

Stephanie borrowed the amount of $280,000 from the Commonwealth Bank. A copy of the stamped Mortgage, dated 25 July 2005, given by Stephanie to the Commonwealth Bank, forms part of Ex. SP2. It was accepted by her that her only contribution to the purchase price of the Guildford property was the amount she borrowed ($280,000), the amount of the First Home Owner’s Grant ($7,000) and the stamp duty (which had not been paid).

A Home Loan Application to Colonial (which was then a part of the Commonwealth Bank) was made by Stephanie, and also by Vinh, on a date in 2005 that is not decipherable on the documents tendered: Ex. VTC 6. In the Application, Stephanie’s occupation was described as “retail manager”, whilst Vinh’s was described as computer operator.

Vinh signed a document, dated 29 June 2005, headed “Guarantor’s Acknowledgement that Guarantor’s Income is required to Service and/or Repay the Facility”. On the same date, Stephanie signed a document headed “Borrower’s Acknowledgement that Guarantor’s Income is required to Service and/or Repay the Facility”.

Andresakis & Associates, Solicitors & Attorneys, a firm located at Parramatta, wrote a letter dated 21 July 2005, to Colonial, confirming that the firm acted for Stephanie; that Contracts for the purchase of the Guildford property had been exchanged on 28 June 2005; and noted that the Contract provided for settlement on or before 29 July 2005.

Vinh, as agreed, provided a guarantee for the repayment of that loan amount. Despite the guarantee, at all relevant times, the legal liability under the Mortgage remained with Stephanie.

Andresakis & Associates sent a settlement letter dated 4 August 2005 (Ex. SP 6), addressed to Stephanie. In that document, there were adjustments of rates, council and water and some costs and disbursements identified. The “amount secured by Mortgage to Commonwealth Bank of Australia” was “$277,984.50”. As well, the letter noted that no stamp duty on the Transfer had been paid and that the “First Home Owners grant paid on settlement” was $7,000. The “balance paid on settlement” was shown to be “$104,520.51”.

There is a withdrawal of $103,006.46 on 5 August 2005, from Stephanie’s Commonwealth Bank Streamline Account. (It is clear that this amount is part of the $110,000, which I am satisfied was deposited into her account, by Vinh, on 8 July 2005.)

There is also a deposit into her account of $1,061, on 12 August 2005, which is described as “Stamping Refund”, which I infer is the amount of stamp duty that was repaid to Stephanie.

There is in evidence a copy of a stamped Transfer, dated 5 August 2005, that relates to the Guildford property, which shows Stephanie as the Transferee, the name of the Transferor, and the consideration of $430,000. The Transfer is not signed by Stephanie but by “Ping Lee, Solicitor for the Transferee”. (Ms Lee was a solicitor employed at Andresakis & Associates between 2001 and 2011.)

It appears that the Transfer and the Mortgage were registered on the title to the Guildford property on about 17 August 2005: see, copy of a NSW Land and Property Information title search obtained on 23 April 2009, Ex. SP1/24.

There is a letter dated 9 August 2005, from Colonial, addressed to Stephanie, which disclosed that “your loan was funded on 5 August 2005” and that it was disbursed as follows:

I should note that when cross-examined, Stephanie admitted that:

Following completion of the purchase of the Guildford property, Stephanie moved into the Guildford property, as did the deceased, and for a period of time, as did Simon.

In her first affidavit, Stephanie stated that:

Despite her evidence that the “repayments were $2,200 per month”, Stephanie’s documentary evidence, including bank records, showed that between 2005 and 2009, the monthly mortgage repayment that she made, between September 2005 and July 2006, was $1,762; between August 2006 and January 2007, was $1,807; between February 2007 and January 2008, was $1,970; between February 2008 and July 2008, was $2,066; and between August 2008 and April 2009, was $2,236. Her total payments were said to be $84,050: Ex. SP4.

Other evidence reveals that:

There is no evidence that Stephanie was assisted, financially, in meeting the mortgage repayments by anyone else, including her then partner, and now husband, Anthony Papas.

Vinh gave evidence that was not disputed by Stephanie, that he had assisted her financially in a number of ways. His evidence disclosed that between 8 November 2005 and 7 May 2009, he had transferred into one, or other, bank account, in Stephanie’s name, amounts totalling $42,000, which were payments on Stephanie’s behalf to her mortgage and interest: T228.23 – T229.16.

The conclusion that I draw from this evidence is that over the period between November 2005 and April 2009, Stephanie’s contributions to the mortgage repayments totalled in the order of $42,050.

There were other amounts paid by Vinh to, or on behalf of, or for, Stephanie, which, in total, amounted to $39,562.84. The amounts which make up the total were identified and were supported by documents in evidence. It is unnecessary to descend into the detail of Stephanie’s expenditure paid for by Vinh. Whilst counsel submitted that some of the amounts that had been included in reaching the amount were not admitted by Stephanie, I am satisfied, overall, that Vinh provided sufficient evidence to lead the view that I should accept that amount as having been paid for, or on her behalf, or to her, by Vinh.

In 2008, there was a falling out between the deceased and Stephanie and, in late February, 2009, she moved out of the Guildford property, and went to live in Brisbane with Anthony.

(The causes of the disputes between them do not warrant detailed repetition. It appears that the deceased believed that Anthony was not being respectful. Jessie denied that the cause of the dispute had anything to do with the deceased’s disappointment that Stephanie was not in a relationship with a man of Chinese, or Vietnamese, ethnicity, although she did accept that the dispute concerning Anthony was “a cultural thing”: T214.04 – T214.10.)

There was no dispute that Stephanie did not see, or communicate with, the deceased after she left the Guildford house in early 2009. There is also no dispute that following her departure from the Guildford property, the deceased continued to live there.

On 12 November 2008, Stephanie sent an email to Vinh, which was in the following terms:

(What Vinh had told Tran is not the subject of evidence in the proceedings.)

Stephanie sent another email to Vinh on 15 December 2008, in the following terms:

Stephanie stated that she did not receive any reply to her emails. However, she did not dispute that following the emails, she had spoken with Vinh saying that she “wanted to get out of the mortgage, because it was being taken out at …a bit over $2,000 a month”, and that she was not “living at Guilford, and [was] planning to make a new life in Queensland with Anthony”: T82.13 – T82.16.

It was agreed that he would borrow funds to pay out the mortgage debt and pay her “for the money [Stephanie had] put into the Guildford house”. They subsequently discussed how much Vinh should pay her and she said “I already worked it out to be $40,000”. (Coincidentally, this is very close to the amount that has been calculated above as to her contribution to mortgage repayments.)

Vinh said that he was “happy” to repay her $30,000, explaining that she had been living in the Guildford property since its purchase. According to Vinh’s evidence, which I accept, Stephanie agreed, but said that “this needs to be done urgently. I don’t want to keep paying the Home Loan because I don’t live there and I am paying rent here”.

I accept Vinh’s evidence on this topic because when it was put to Stephanie that the agreement was that Vinh would pay to Stephanie “around about $30,000”, Stephanie, initially, replied “I don’t remember, but I think, quite possibly”: T84.15 – T84.17. Later, Stephanie sought to change her oral evidence, but I do not accept her evidence in this regard. I shall refer to the reasons why later in these reasons.

There is in evidence a copy of a number of diary entries that were obtained from the diary of Ms Lee (Ex. VTC2) that are in the following terms:

It was not suggested that Stephanie attended either of these meetings with Ms Lee.

Ms Lee was not a witness in the proceedings. No criticism was made of the failure of the Defendants to call Ms Lee.

In late March 2009, Lisa Susino, a secretary who was employed by a firm called Andresakis & Associates, sent a Discharge/Refinance Authority addressed to the Commonwealth Bank to Stephanie.

Stephanie sent, by facsimile transmission, from Brisbane, the signed Discharge/Refinance Authority back on 30 March 2009. In it there was a box ticked which stated “Property sold, with expected settlement date 31/3/09”. The solicitor identified as acting was Ms Lee of Andresakis & Associates.

Stephanie accepted that the Discharge/Refinance Authority was “an important document”: T88.45 – T88.46. Despite this acknowledgement, she said she did not go and speak to anybody about the document, or even show it to Anthony: T88.41 – T88.43.

On 16 April 2009, Vinh set an email to Stephanie in the following terms:

There is a copy of the Transfer, from Stephanie to the deceased and Vinh, (on which no stamp duty was paid, as the deceased obtained the First Home Plus Grant), and which was stamped, as such, on 24 March 2009. The consideration shown was $1.00. The Transfer form made provision for witnessing the signatures of the transferor and the transferees, and each signature was shown as having been witnessed. (Apart from signatures, and the print on the document, the Transfer included the information for inclusion as typed, not in handwriting. This suggests that the Transfer was prepared in the office of Andresakis & Associates.)

Although the copy Transfer purports to bear the signature of Stephanie, she denied that she signed the original document.

There is no dispute that the witness to her signature, Yu Hua Mo, was not present when Stephanie was said to have signed the Transfer. Vinh agreed that “the person whose signature appears as the witness to what allegedly is the Plaintiff's signature on the Transfer was not present at the time”: T159.23 – T159.26. He was not asked any questions about when, or how, he came to find that out. Importantly, it was not put to him that he had anything to do with arranging Stephanie’s signature on the document to be witnessed. Nor was it put to him that he had forged her signature on the document, or that he knew that her signature had been forged by someone else. Finally, there was no evidence that either he or the deceased had any skill in imitating a signature.

The written statement of Yu Hua Mo, which was in evidence, made clear that her conversations regarding the Transfer were with the deceased and not with Vinh. Indeed, she specifically identified the deceased as the person who “asked me to sign”.

Settlement of the “sale” of the Guildford property, pursuant to which the deceased and Vinh came to be registered on title as to 95 per cent for the deceased and 5 per cent to Vinh, appears to have been completed on 22 April 2009. The discussions relating to the proportions to be held by the deceased and by Vinh, in circumstances where Vinh was the only borrower were not disclosed.

The Settlement letter dated 5 May 2009, addressed to Stephanie, Vinh and the deceased, sent from Andresakis & Associates to the address of the Guildford property, shows that the amount of $279,237 had been borrowed from Westpac Bank, and that $270,202.69 had been repaid to the Commonwealth Bank. It also notes that that the “Balance paid to you on settlement” was $7,669.21.

Stephanie said that she did not receive a copy of the letter. Vinh accepted that he did not send her a copy of it. Whilst she may not have received a copy of the letter, I do not accept her assertion that she did not know of the Transfer of the Guildford property and what was being done to relieve her of her obligations under the Mortgage. Her assertion that “I understood that he was just going to take over the repayments of the loan; not to transfer anything else over to him” lacks credibility in circumstances where her purpose was to “get out of the mortgage”.

As a result of Vinh having obtained finance, Stephanie’s debt, secured by the mortgage over the Guildford property, was paid out and her mortgage was discharged. Stephanie, thereafter, was no longer obliged to make the monthly, or any, payments in respect of the Guildford property and she did not do so.

Stephanie agreed that she did not repay, in 2009, or subsequently, any amount to discharge the debt secured by the mortgage in her name that had been registered on the title to the Guildford property. She also accepted that thereafter, that “money stopped coming out of [her] account”, that she “didn't have to pay or didn't pay rates anymore for the house … or any insurance … or any expenses”: T90.24 – T90.33.

Vinh gave evidence of a conversation in about May 2009, which although denied by Stephanie, I consider is more likely than not to have occurred. The conversation as deposed to by Vinh was:

Vinh was cross-examined on the conversation and maintained that it had occurred: T159 – T160.

Whilst what occurred relating to the cheque of “nearly $8,000” subsequently, suggests dishonesty on his part, I tend to the view that the conversation to which he deposed did occur. After all, the conversation makes statements that are adverse to his interests (agreeing to honour the repayment of $30,000).

Perhaps, more importantly, it is this very conversation that led to his cross-examination on the topic of the cheque and my findings regarding his credit on that topic which I deal with next.

There is in Stephanie’s evidence, a copy of a Bank cheque, dated 23 April 2009, made payable to Stephanie, in the sum of $7,669.21. On the copy that is in evidence, there is a statement “Please pay Vinh Co the sum on this cheque”. The statement bears the date 15/05/09 and purports to bear Stephanie’s signature. There is no doubt that it is not her signature, a matter to which I shall refer to when dealing with the credit of the parties.

On 29 April 2009, title to the Guildford property was registered in the names of the deceased and Vinh in the proportions earlier referred to. The Mortgage given to the Westpac Bank was also registered on the title.

In May 2009, Tran moved out of the Guildford property. Vinh gave evidence that she was doing so without a fuss, because “Stephanie spoke to her already and explained the property has been transferred”.

On 17 June 2009, Stephanie posted a comment, on Facebook, responding to a “status update” that was posted by Vinh, in the following terms:

Following the transfer of the Guildford property into the names of the deceased and Vinh, there have been repairs and maintenance, costing, in total, $21,776 spent (between September 2012 and July 2018): Ex. VTC7.

The person who was said to have witnessed Stephanie’s signature on the Transfer was Yu Hua Mo, of Claremont Street, Campsie. She refused to provide an affidavit, and was served with a subpoena to give evidence. A statement of the evidence that she was said to be prepared to give was served upon the solicitors for the Defendants, who did not require her attendance and accepted that she was not present as a witness to the signature on the Transfer.

In further support of Stephanie’s assertion that she did not sign the original Transfer, she tendered a report dated 23 August 2017 of Stephen Dubedat of Document Services Pty Limited (Ex. SP2). The report was said to have been requested “to determine the authenticity of a questioned ‘Stephanie Co’ signature reproduced on a Transfer document” and whether this signature was written by the same person who signed other documents provided to Mr Dubedat (which Stephanie said that she had signed).

In his report, Mr Dubedat set out his methodology, his observations and his conclusions. He acknowledged that:

Ultimately, he concluded that:

The Defendants’ solicitors obtained the services of Michelle Novotny, a senior forensic document and handwriting examiner with Forensic Document Services Pty Ltd. Before preparing any report, and upon the basis that the original Transfer was not available because it was said to have been destroyed, Ms Novotny advised that “[T]his presents a significant limitation to the examination and, therefore, to the strength of the conclusion that can be reached.” Ms Novotny also stated that the estimated cost of preparing a report would be between $8,800 and $11,100.

The Defendants’ legal representatives decided that they “did not see any point paying between $8,800 and $11,100 for an inconclusive report”.

To accept that Stephanie did not sign the Transfer would require the conclusion that her signature thereon was forged (as she asserted it had been). Whilst such an allegation can be established on the balance of probabilities, as previously stated, where, in civil proceedings, an allegation is made of criminal misconduct, that standard should be applied flexibly, taking into account s 140(2) of the Evidence Act.

In the present case, the burden rests on Stephanie to establish the forgery. Cogent evidence of forgery is required. Mere suspicion cannot be elevated to proof of forgery. In my view, she has not satisfied that burden.

In any event, I do not accept Stephanie’s evidence that she did not sign the original Transfer. However, her signature on the Transfer was not, in fact, witnessed by the person who signed it as an attesting witness.

In coming to the conclusion regarding Stephanie’s claim, the Court must look at the whole course of dealing between, and the conduct of, Stephanie and Vinh. The reasons for not accepting Stephanie’s denial that she signed the Transfer are as follows:

In all the circumstances, I am satisfied that Stephanie did sign the Transfer and return it to the solicitors who were acting on the transaction, with knowledge of the meaning and effect of the Transfer. I find her statement that she did not sign the Transfer to be inherently improbable.

There was no contemporaneous written document setting out the agreement between Stephanie and Vinh about the loan and its repayment. This is hardly surprising bearing in mind the sibling relationship that they had in 2009.

In about August 2009, Vinh asked Stephanie to loan him $30,000. He said that he would repay that amount, by the end of 2009, and would also give her $5,000, for interest on the borrowing.

Stephanie gave evidence of a conversation regarding interest on the loan. Her evidence was:

Vinh set out his version of the conversation which did not significantly differ from Stephanie’s version. He did not refer to any interest by reference to Rabobank, but simply to the payment of $5,000 in interest.

Stephanie’s bank records reveal that, on 3 August 2009, there was a “netbank” transfer of $30,000 to Vinh. He admits receiving the amount: T184.36 – T184.38.

Stephanie said that she had a conversation with Vinh “in about December 2010, when he promised to pay by December”. He denied this conversation, although he admitted a conversation had occurred in December 2009. He says that he told Stephanie that he could not afford to repay her as “I am paying two home loans, all the utility bills, council rates, credit cards, and phone bills. Some of these expenses are also your expenses on the credit card and phone bills.”

He also wrote, in the same conversation, he said “Stephanie, you still owe me money from your expenses on my credit card and the mobile phone bills” and that although he could not provide how much she owed him, she said:

On 6 June 2011, Stephanie sent an email to Vinh which was in the following terms:

On 7 June 2011, Vinh replied by email to Stephanie:

By letter dated 20 June 2011, from Stephanie’s solicitors, AKN & Associates, a demand was made, on behalf of Stephanie, for $35,000 “plus [$110] for the cost of this letter”. The letter concluded with the threat that if the amounts claimed were not paid “within 28 days of the date of this letter, we are instructed to commence legal proceedings to recover the principle [sic], interest as well as legal costs and any further court costs”.

By letter dated 27 June 2011, from Stephanie’s solicitors to Vinh, a demand was, again, made for $35,000, of which $30,000 was said to be a loan made by Stephanie to him on 3 August 2009 and $5,000 was said to be the amount of interest that he had agreed to pay.

In neither letter, was anything written about the Guildford property.

The demand for $35,000 was again made in a letter dated 19 July 2011 from Stephanie’s solicitor to Vinh. Again, nothing was written about the Guildford property in this letter.

In a letter dated 27 July 2011, from the solicitors then acting for Vinh, to Stephanie’s solicitors, Vinh admitted that Stephanie had loaned him $30,000 and that he had agreed to pay interest of $5,000.

In the letter, the following passage appears:

That assertion, on any view was incorrect. On Vinh’s case, he had agreed to reimburse Stephanie for at least part of the amount that she had paid towards the principal and interest due on her mortgage.

Be that as it may, the letter went on to assert that “during the period of 2005 and 2011, the total amount [that] was spent by [Stephanie] is $73,214.98” and that Vinh required her to repay an amount to him ($8,214.98). (This amount comprising the amount she was said to have spent that exceeded $65,000, which was described in the letter as “the agreed loan amount by the parties”.)

In a letter dated 28 July 2011, from Stephanie’s solicitors to Vinh’s solicitors, the solicitors “deny that such an agreement was made”. A request was made for “a copy of all credit card statements in relation to the matter mentioned in your letter”.

Next, there is a letter dated 3 August 2011, from solicitors then acting for Stephanie to the solicitors acting for Vinh. In this letter, there was a denial of “debts owing to your client”.

The letter also stated:

The reference to the transfer demonstrates, beyond all question, that Stephanie and her solicitors were aware of the Transfer having been registered. Yet, there was no assertion that Stephanie disputed an agreement to transfer the Guildford property, or that she had not signed the Transfer pursuant to which the deceased and Vinh were registered on title.

By letter dated 4 August 2011, Vinh’s solicitors wrote to Stephanie’s solicitors and provided “a summary of payment that [sic] prepared by our client …The detailed evidence, including bank statements, phone bills, will be admitted to the Court should a proceeding is [sic] instituted”.

The document which was headed “Attachment A Summary” referred to and identified various amounts, including “ANZ Cash Transfer and Misc Cash” ($44,309.86), mobile phone bills ($3,961.35), one other mobile phone bill ($819), ANZ credit card payments ($15,764.64) and Citibank credit card payments ($8,360.13).

Nothing happened, thereafter, in regard to the claims and counterclaims that had been made in the correspondence that had passed between the solicitors for each of Stephanie and Vinh.

Importantly, as stated, at no time prior to the death of the deceased, did Stephanie assert that she had been unaware of the Transfer of the Guildford property into the names of the deceased and Vinh. Nor did she assert that she had not signed any Transfer pursuant to which title came to be registered in their names.

Vinh had every reason to treat the matters raised in 2011 as closed.

Next, I shall deal with the credit of the major witnesses, as this issue loomed large during the course of the case. This case is one that is particularly fact sensitive. Findings of fact, the assessment of the credibility of the witnesses, and the reliability of the evidence are extremely important. It is necessary to form an assessment of whether to accept each of the competing witnesses as a witness of truth, as there are many facts, as well as a number of important conversations, that are the subject of dispute.

The only witness who was entirely credible was Jessie. She was hardly cross-examined, and her evidence, overall, was given frankly, calmly, and, in my view, honestly. It was not suggested to her that she was favouring Vinh in the evidence that she had given, or that, otherwise, she had not given a frank account of her knowledge of the events. Where her evidence conflicts with that of Stephanie, I prefer the evidence of Jessie.

I found Stephanie, generally, to be an unreliable witness. I treat some of her evidence, where it is not corroborated by contemporaneous documents, or otherwise, with considerable caution. At times, she was prepared to make some claims either that she must have known were incorrect, or that she did not know to be true (as to both of which I shall return).

I have already dealt with some aspects of her evidence that I do not accept. I shall next deal with other aspects of her evidence that I find difficult to accept.

Stephanie stated that she gave all of her money from her part-time work in a fish shop “Ocean Masters” to the deceased. She said that she worked on Thursday nights and on Saturday and Sunday during school, and worked “most days” during school holidays. She stated that “I gave him [my] pay packet without taking any money for myself”.

Later, she referred to amounts “that [came] out of my pay” which seems to suggest that she had not given the deceased all of her wages.

She also maintained that after she left school in 1999, and had started full time work, she “continued to give [the deceased] all of the money I earned. It wasn’t until I left home for the first time [in about 2004], that I operated and maintained my own accounts and had financial independence”.

Stephanie did not give evidence of how she was able to purchase things for herself that she would have needed, particularly after she commenced full time work, other than to say, that in relation to some things, she was given some money by her mother: T49.31 – T49.43.

Stephanie also gave evidence that, in about 2004 or 2005, the deceased had said to her:

Stephanie had given no evidence, previously, of the deceased telling her that he was saving money for her, except for one conversation she had said that she had with the deceased, when she began working casually, in about 1998, in which he is alleged to have said “I will put all the money [you earn] together to buy a nice house.” This conversation seems highly improbable bearing in mind her age and what she was, then, likely to be earning.

Nor, did she give evidence of her asking the deceased, at the time of the conversation occurring in about 2004 or 2005, how much he had saved. I found her evidence on this topic particularly unconvincing.

Stephanie did not say very much in her affidavits about how the purchase price (other than the mortgage amount and the First Home Owner’s Grant) of the Guildford property was raised. However, she asserted in her first affidavit:

Stephanie went on to write that “the Property was put in my name alone in recognition of the amounts that had come out of my pay over several years, the savings I had contributed and because I signed the papers to pay the Commonwealth Bank”. Again, she did not identify the amounts that “had come out of my pay” or “the savings that I had contributed”. Furthermore, she did not say how much, if anything, she gave to the deceased following her conversation with him about the purchase.

Her evidence on the topic of the purchase of the Guildford property is quite implausible and inconsistent with the evidence of all three children about the family’s straitened financial circumstances during her, and his, respective childhood. Even if she did give the deceased all of her wages, the probability of those wages, in whole or in part, being saved, rather than used, to meet Stephanie’s, or other family, expenses, is highly unlikely.

Furthermore, it is highly unlikely that Stephanie’s wages between 1999 and 2004 would have enabled “a large amount” to have been saved, or that such an amount was contributed to the purchase price of the Guildford property. If Stephanie’s saved wages had been saved and had been used to contribute to the purchase price, the deceased was likely to have said something to Vinh, or to Jessie about that. There is no evidence that he did so. Indeed, Jessie gave evidence that he did not.

Importantly, Stephanie’s evidence is inconsistent with Jessie’s evidence that:

Furthermore, Stephanie wrote in her first affidavit that she had continued to give all her wages to the deceased until about 2004, when she “left home for the first time”. However, in reply to Jessie’s affidavit, Stephanie wrote that she left home when she was about 19 years old (2003) and “after leaving home this [passing over her wages] stopped and I began saving for myself, to the extent that I could on the low income I earned”. This is inconsistent with her evidence to which I have referred above.

In her affidavit in reply, Stephanie said she did not know of Vinh’s role as a guarantor of her debt to the Commonwealth Bank and that “[u]ntil I read Vinh’s affidavit, nobody, not my father, nor Vinh, nor anybody else, has ever suggested or said to me that any part of the money to be used to buy the [Guildford] property would come from Vinh, or had come from Vinh”. She also maintained that she always believed that the money used to buy the Guildford property, “apart from the amount borrowed from the Commonwealth Bank, came from me and from the money kept as cash accumulated by my father over many years which included a large amount I had contributed.”

It is equally implausible that she did not know about the need for Vinh to guarantee her repayment of the mortgage debt. As stated, her net income, in the financial year ending 30 June 2006, was $32,802. More importantly, her statements that she did not know of Vinh’s involvement, particularly as a guarantor, are also difficult to reconcile with her having signed the document headed “Borrower’s Acknowledgement that Guarantor’s Income is required to Service and/or Repay the Facility” on 29 June 2005 which refers to Vinh as the guarantor and contains the following acknowledgements that:

In her affidavit, Stephanie had stated that she had made “a lump sum contribution at the time of purchase” of the Guildford property. There was no evidence of such a lump sum payment and counsel did not submit that such a lump sum payment, in fact, had been made.

(In her verified Statement of Claim, Stephanie had asserted that in 2005 she had made “a further payment to the deceased in an amount of about $30,000” (Paragraph 10). Shortly after the start of the hearing, Stephanie’s counsel stated that the Paragraph “should not be there” and that the Paragraph “needs to come out”: T95.50 – T96.06.)

By the time of submissions, it seemed to be accepted that the evidence demonstrated that her only contribution was the amount borrowed, the amount of the First Home Owner’s Grant and the saving of stamp duty.

Stephanie’s evidence about not becoming financially independent until 2004, is also inconsistent with documentary evidence, which shows that in 2002, Stephanie applied for an Australian Business Number registration which was granted, and which became effective from 13 February 2002, and that she became registered, on that day, as a sole trader with the Australian Business Register.

By Deed of Assignment and Consent, dated 8 November 2002, Stephanie obtained the assignment of a Lease for premises, being premises, at Campbell Street, Berala, from where she operated a chicken shop. The Transfer of Lease is dated 12 November 2002.

There is a document, in Stephanie’s handwriting, which is undated, which clearly relates to the Lease and the business, and another, also undated but in her handwriting, which is a message to customers informing them that the shop would be closed between 28 December 2003 and 5 January 2004.

When cross-examined on these documents, despite the evidence in her first affidavit about the deceased not having been engaged in any work, Stephanie, initially, gave evidence that she owned the chicken shop business in Berala (T58.15 – T58.16). Later, after being pressed on a number of details referred to above, she said that it “wasn't actually myself. It was actually on my father's request. He told me to sign papers. I didn't understand I was taking out a chicken shop business”: T60.41 – T60.44.

In answer to what had happened to the chicken shop, she said, “I had nothing to do with the chicken shop so I am not entirely sure what actually happened even to today”: T61.01 – T61.07.

In relation to the undated handwritten note, it was suggested to Stephanie that “it was a check list for yourself, wasn't it, for things to do” to which she responded “Not for myself, no. It is for my father”: T61.09 – T61.24.

Her evidence was shown to be even more unlikely when she was shown a copy of a letter, dated 1 July 2004, in which she wrote that “the claim made against me is completely wrong and unjustified”. In this letter, the reason for her assertions was not said to be that it was not her business, or that it was the business of the deceased. Indeed, the deceased was not mentioned at all. To the contrary, there was a reference to “I was only able to report the incident to the Landlord’s agent”, that the landlord had failed to repair the damage within a reasonable time “after I repeatedly requested the landlord’s agent to do so”, that “My business is a chicken shop”, that “I lost my business”, that “I suffered a loss of income and my business is ruined”, that “If I was able to re-open and run my business”, that “my business would still have value and I could sell it if I ever wanted to”, and that “resulted in the loss of my business”.

This letter is also inconsistent with Stephanie’s affidavit in reply, in which she had written, after referring to the possibility that the chicken shop was set up in her name, that “If so, it was not done with my agreement and I received nothing from the business.”

In answer to questions from the Bench, Stephanie stated that all of the matters referred to above in the letter were false: T63 – T66. Even if they were, the fact that she was prepared to make such statements, knowing them to be false, does not assist her on credit.

She was also shown a copy of a letter dated 8 November 2004, in her handwriting and signed by her, addressed to a barrister (Mr D Roberts), which related to a mention in a Court, involving a suit brought against Stephanie, at which Court mention she had appeared. She referred to a subpoena, to supplying “all necessary documentation (as it has been a bit of a hassle having my accountant on holidays)”, wishing to have the matter transferred to the “Administrative Decisions Tribunal”, and stating that “Should you wish to discuss this with me any further, I am contactable” and provided a mobile telephone number. Finally, she thanked the barrister “for your help, it is very appreciated by both my father and I [sic]”. She maintained that the barrister had been acting for the deceased, not for her: T62.06 – T62.10.

I should mention that in her affidavit in reply sworn in June 2017, Stephanie had written that she “now [recalled] that my parents also ran a shop selling fresh chicken. I think it was in about 2002 and that they probably had the business for a year.” When she gave her oral evidence, she made no mention of Tran’s involvement in the business. (Stephanie did not call Tran to give evidence corroborating her version of the events.)

Because it is relevant to the submissions made in relation to the claim for $30,000 (which was the amount by way of adjustment in respect of the Guildford property to which reference will be made), I refer to Stephanie’s evidence regarding Vinh having provided Stephanie with a credit card. In her first affidavit, she wrote that Vinh said:

She also said that Vinh had provided the credit card “which I used when I needed to”. Despite the reference to the above conversation, Stephanie asserted that Vinh “did not ever say that I would have to repay any amount in relation to credit card charges until 2011, when it was mentioned in a letter from his solicitors.”

One might have thought that referring to “we can sort it out later” would have suggested that some repayment was going to be required, or at least some set-off was going to have to be given, for charges made by her on the credit card which Vinh had paid, or was going to pay.

Stephanie asserted in her first affidavit that “I did not receive any payment for the transfer of my interest in the [Guildford] property”. Yet, the mortgage debt of $270,202.69 was paid by Vinh which relieved her of the continuing obligations under the Mortgage.

As stated, Stephanie maintained that she had not known about the transfer to the deceased and Vinh of the Guildford property. I have referred to the email sent by Vinh on 16 April 2009, the receipt of which Stephanie acknowledged. In relation to the email, she did not assert that she had not read it, but rather that “it did not register with me that the home was no longer mine. I did [not] pay attention to his use of the words ‘because you have sold the house’”. This is highly unlikely, particularly as in the document sent to the Commonwealth Bank in March 2009, there was a reference to the sale of the Guildford property.

Even if what she asserted is true, in my view, her inattention to the contents of Vinh’s email is unlikely to have been caused by anything other than her understanding of the transaction which she and Vinh had discussed, namely that he would pay out her mortgage debt, and give her $30,000, and that the Guildford property would be transferred out of her name.

I find it inherently improbable that Stephanie and Vinh would have discussed any arrangement under which he would refinance a large amount to repay her mortgage debt and that they would not discuss, and that she would not understand, the need to transfer title to the Guildford home when he paid out her mortgage debt and obtained the discharge of that mortgage. I am more than satisfied that the Guildford property was transferred out of the name of Stephanie with her knowledge and concurrence.

It is also inherently improbable that Vinh would have done what he did without having reached agreement with Stephanie about the consequences of what he was to do. Whilst I have not accepted much of Stephanie’s evidence, I have accepted that the arrangement made was that Vinh would pay her $30,000, as part of the transaction (albeit subject to “sorting out” what payments he made, or that he would make in the future, to her, or on her behalf.)

Stephanie asserted that “I did not ever lose sight of the fact that [the deceased] was my father and was entitled to be respected.” Yet, when she was informed, by Jessie’s husband, Marcus, by email, in November 2015, about the deceased being in palliative care, she acknowledged receipt of the email, saying “It has been a long time since our contact & it’s so hard to know what to say”. She did not do anything else.

The other aspect of Stephanie’s evidence relates to the loan of $30,000 made in August 2009, its repayment by the end of the same year it was made, and payment of interest on the loan. She and Vinh were in agreement that Vinh had promised to pay her $5,000 in interest as well. Her evidence of the conversation referred to interest being paid at 6 per cent (the rate of interest she was receiving from Rabodirect). Of course, at that rate of interest, which equates to $1,800 per annum, Vinh would not have had to pay her anything like $5,000 within a few months. Indeed, he would have had to pay her $600, if he had been asked to at that rate, and if he had repaid the loan by the end of the year (4 months after the amount was loaned to him).

Despite her evidence that the interest of $5,000 was to be paid when the amount was repaid at the end of 2009, in none of the correspondence written by Stephanie’s solicitors in June and July 2011, was there any claim for additional interest. All that was sought was the amount of $30,000 and the amount of $5,000 for interest.

Whilst I found Vinh, mostly, to be endeavouring to answer the questions asked of him truthfully, there was one aspect of his conduct, in 2009, which, in my view, was dishonest. That conduct relates to the cheque of “nearly $8,000” which was the subject of his conversation with Stephanie in about May 2009 (which I have earlier accepted occurred).

In cross-examination, Vinh accepted that the amount to which he had referred in his conversation with Stephanie, was actually $7,669.21, which had been referred to, in the settlement letter of 5 May 2009, as “balance paid to you on settlement”.

He also agreed that the cheque had been made payable to Stephanie; that it had come into his hands following settlement of the transfer of the Guildford property; and that he had attempted to negotiate the cheque into his own name. He admitted that it was his handwriting on the cheque, but denied that he had signed Stephanie’s name under the handwriting. He said he did not know how the signature came to be placed on the cheque. I do not believe his evidence in this regard.

His dishonest conduct was not ameliorated by what followed. He then asked Stephanie to loan him $8,000, which she did, by netbank transfer, on about 2 June 2009. Then, on 9 June 2009, he paid into her account $7,700.21, which he admitted was made up of a cheque for $7,669.21 and $31 in cash: T171.13 – T172.28. On 11 June 2009, he deposited a further $300, making the total repayment of $8,000.21. This was so that the amount advanced to him by Stephanie appeared to have been repaid by him to her.

Despite his denials, I am satisfied that he took these steps dishonestly, and inconsistently with what he had told Stephanie, namely that the deceased wanted her to have “nearly $8,000”. In the end result, Stephanie did not receive any part of the amount of the cheque for $7,779.21, as this cheque was used by Vinh to repay the money she had advanced to him. Therefore, because Stephanie advanced $8,000 to him, the majority of which he retained, Vinh received, in effect, the value of the cheque: T174 – T175.

Yet, overall, and despite the matters referred to above, I consider that his evidence was more consistent with the undisputed facts and the documentary evidence to which I have referred. I also remember that the delay in the matter was brought about by Stephanie not commencing the proceedings in or about 2011, or at any time thereafter, whilst the deceased was alive. In relation to not producing some documents, he could not be blamed, entirely, for not doing so. From his point of view, the matter was concluded when he responded, through his solicitors, in the way that he had.

Neither Mr Nicolau nor Ms Audisho was cross-examined. I accept the evidence given by each of them.

On 8 August 2016, a notice of intended application for Probate of the deceased’s Will was filed in the Online Registry of the Supreme Court on behalf of Jessie.

By letter dated 21 September 2016, Stephanie’s then solicitors wrote to Jessie referring to the fact that Stephanie was an eligible person under the Act and requested “a copy of all wills made by the deceased”, “a list of assets and liabilities”, and “if Probate has been applied for, a copy of same”.

By letter dated 8 November 2016, Stephanie’s solicitor wrote, again, stating “[a]part from a family provision action which is being considered, as your client is aware our client claims an equitable interest in the property”. A complaint was also made that a response to the letter of 21 September 2016 had not been received.

On about 14 November 2016, shortly prior to the commencement of these proceedings, Stephanie’s solicitor filed a caveat on the title to the Guildford property. In the caveat, she claimed an “equitable interest” by virtue of the following facts:

This appears to have been the first occasion when any such assertion was made by Stephanie. Importantly, it was quite wrong to assert that “the caveator has received no consideration for the Transfer”. The debt secured by Mortgage had been paid off, completely, and, as I have found, an agreement was reached that Vinh would pay Stephanie an additional $30,000 to reimburse her for some of her payments towards the reduction of the principal and the payment of interest during the period that she had been registered as the sole owner of the Guildford property. That was the consideration for the transfer of the Guildford property out of Stephanie’s name.

The parties’ written submissions on the trust claim can be set out verbatim because they were so short. The Plaintiff submitted:

It can be seen that whilst “fraud” was referred to, there was no consideration given to the question whether the deceased and/or Vinh really had it in mind to mislead the Registrar-General in a material respect and thereby influence the Registrar-General to do something materially different from what otherwise would have been done, or whether the behaviour of the deceased had the element of dishonesty, or moral turpitude, sometimes said to be necessary for fraud: Davis v Williams [2003] NSWCA 371, per Hodgson JA, at [24].

The Defendants’ written submissions were equally brief:

These submissions did not deal with the question of whether the deceased intended that his action in requesting the attesting witness to sign the Transfer was one taken in order to deprive Stephanie of her interest in the Guildford property or whether the deceased simply took what he wrongly thought was a permissible short cut to achieving the task that Stephanie had herself wished to achieve. Nor did they deal with the fact that Stephanie obtained a benefit from the transaction, namely the discharge of the mortgage that was registered on the Guildford property and the consequential discharge of her liability to repay the debt secured by that mortgage. Nor did they deal with the argument that the event of witnessing the signature on the Transfer had no effect on the underlying agreement to transfer the Guildford property, to have the mortgage thereon discharged, which agreement truly existed.

Having identified the relevant factual matrix, the Court’s findings about who holds the beneficial interest in land will be made with the assistance of presumptions. It will be necessary to consider the position as at the time of the purchase of the Guildford property in 2005, and then again, in 2009, when it was transferred out of Stephanie’s name into the name of the deceased and Vinh.

The first relevant presumption is that the prima facie position is the “beneficial ownership of real property is commensurate with the legal title”: Currie v Hamilton (1984) 1 NSWLR 687, 690, per McLelland J. Using this presumption alone, Stephanie was the sole registered proprietor after the property was purchased in 2005, and, therefore, her beneficial interest was commensurate with the legal title.

Sometimes, the presumption referred to above is displaced by a presumption of a resulting trust. That presumption involves a “legal presumption”, in that there is a presumption of a trust (see Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) at [12-10]; W Swadling, “Explaining Resulting Trusts” (2008) 124 Law Quarterly Review 72), referred to, with approval, by Ward CJ in Eq., in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495, at [162]. This type of trust is also called a “presumed resulting trust” or a “purchase money resulting trust “because the catalyst for its creation is the acquisition of property”: Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413, at [391].

Where the legal title does not reflect the contributions of the persons who made them, then (at least where there are no countervailing facts, for example, of advancement, or when the presumption is rebutted, or qualified, by evidence of the intention of the party paying the purchase price, or of the common intention of the parties who contribute that price), it will be presumed that the parties take a beneficial interest in the property as tenants in common in shares that are proportionate to their respective financial contributions to the purchase price. In other words, and relevant to the facts of the present case, where two or more persons make unequal financial contributions to the purchase price, but the property is conveyed into the name of only one of them, there is a presumption that the persons take a beneficial interest in the property as tenants in common in shares that are proportionate to their respective financial contributions to the purchase price: Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, at 246–7 (Gibbs CJ), 258, 262 (Mason and Brennan JJ), 266–7, 269–70 (Deane J).

Thus, the beneficial interests under a resulting trust are ascertained by the process of identifying the person, or persons, who provided the purchase money to acquire the property and, if more than one person is identified as having done so, by ascertaining the respective amounts provided.

As held in Dyer v Dyer (1788) 2 Cox Eq Cas 92, at 93; 30 ER 42 at 43, “the trust of a legal estate … results to the man who advances the purchase-money … It is the established doctrine of a Court of equity, that this resulting trust may be rebutted by circumstances in evidence.”

Mason and Brennan JJ, in Calverley v Green, at 262, (in a portion of the judgment with which Gibbs CJ agreed, at 251, and Deane J agreed, at 269) applied a principle referred to in Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28, at 365, to identify the evidence that can rebut the presumption of a resulting trust:

In Shepherd v Doolan [2005] NSWSC 42, White J (as his Honour then was), at [23]), noted:

In Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; (2013) 304 ALR 651; [2013] SASCFC 57, a useful description of what is required was described as follows at [28] – [30]:

In Amit Laundry Pty Ltd v Jain, Ward CJ in Eq, added, at [163] – [168]:

(The presumption of advancement, which, in some circumstances, may be relevant, does not apply in the present case, and it may be ignored.)

The onus of establishing the presumption of a resulting trust lies on the person who is asserting the existence of the resulting trust. When the presumption arises, “it performs a similar function to the civil onus of proof by requiring the person against whom the presumption applies to adduce evidence, or to point to other evidence in the case, that rebuts the presumption”: Vlahos Pty Ltd v Vlahos [2017] VSCA 166, at 58, in reference to Muschinski v Dodds (1985) 160 CLR 583, at 612; [1985] HCA 78.

As stated, the burden of rebutting the presumption of a resulting trust falls upon the party against whom the presumption is raised (in this case, Stephanie): Ryan v Ryan [2012] NSWSC 636, per Ward J (as her Honour then was) at [57]. The presumption may be rebutted by evidence as to the objective intentions of the parties at the time of the acquisition of the property: Ryan v Ryan, at [75]. In Anderson v McPherson (No 2) [2012] WASC 19; (2012) 8 ASTLR 321, Edelman J (as his Honour then was) noted, at [98], that the intention is an objective, manifest intention (not an unexpressed subjective intention). Evidence of subsequent statements or conduct, as distinct from those which are contemporaneous with the relevant transaction, will only be admissible as admissions against interest: Muschinski v Dodds at 590 (per Gibbs CJ).

A notable example of a case where the presumption would be rebutted is where the transaction is found to be one of gift or loan. There is no suggestion, by Stephanie, that the amounts paid by Vinh towards the purchase price, in 2005, was a gift, or a loan, to her. Nor is there any suggestion that in paying off the whole of the balance of the mortgage debt in 2009, that he intended to provide a gift to her of that amount.

As to the proof of each party's contributions, in Cetojevic v Cetejovic [2006] NSWSC 431, when considering whether there was a resulting trust, Campbell J (as his Honour then was), wrote, at [36]:

In this case, during the submissions, the parties appeared to be prepared to take a broad brush and holistic approach.

As stated, Stephanie contributed to the purchase price by paying the money borrowed by her from the Commonwealth Bank, towards the purchase price of the Guildford property, which borrowing she had an obligation to repay. In addition, she contributed the First Home Owner’s Grant amount that she received ($7,000). Accordingly, her contribution to the purchase price ($430,000) was $287,000 or 66.74 per cent. (The parties during submissions seemed to be prepared to omit from calculation, the fees, disbursements and other incidental costs of completing the purchase.)

Absent agreement between Stephanie and Vinh, the beneficial interest arising under such a resulting trust would not change by later contributions to the repayment of the mortgage debt or otherwise in respect of the Guildford property. However, Vinh’s contribution, in paying out Stephanie’s mortgage debt can be taken into account in determining his beneficial interest in 2009.

As has recently been written by Sackville AJA in Lucas v Lucas [2018] NSWSC 962, at [159]:

There was simply no evidence from which the shared intention of each of Stephanie and Vinh could be discerned that her and his respective interests in the Guildford property would be determined by the contribution, not just to the purchase price, but also by way of repayment of the mortgage debt.

On the authorities set out above, in determining the beneficial interests in the Guildford property, at the time of its purchase in 2005, it is not necessary to, and I do not, take into account the contributions by each to the monthly mortgage repayments after its purchase. They do not constitute direct financial contributions to the purchase price of the Guildford property.

I have earlier concluded that Vinh contributed the balance of the purchase price of about $153,000. I estimate his beneficial interest in the Guildford property to be 33.26 per cent.

The legal title came to be registered in Stephanie’s sole name, which did not reflect only what she had contributed to the purchase price. In my view, this is a classic illustration of the creation of a resulting trust upon the basis that the inference is that Vinh intended Stephanie to hold the Guildford property in trust in a proportion corresponding to the proportion of the purchase price which was contributed by him.

During submissions, the above matters were raised and it appears that counsel accepted the mathematical calculations to which I have referred: T217.46 – T218.11; T220.06 – T220.09.

There was virtually no evidence of the value of the Guildford property at the time of its transfer, in 2009. It seems to have been accepted that it should be taken to have a value of $430,000: T218.

Accordingly, at the time of the transfer in April 2009, Stephanie’s entitlement, assuming the Guildford property had been sold for that amount, and that there had been no deductions from the gross sale price, would have been to receive $287,000. In fact, she received, at least indirectly, because the debt secured by the mortgage was repaid, the amount of $270,202.69.

I am satisfied that Stephanie and Vinh came to a consensus, in early 2009, that Vinh would pay out the mortgage debt and, subject to working out what he had paid on her behalf, would pay to Stephanie the amount of $30,000 to reimburse her, in part, for the payments she had made towards the repayment of the mortgage debt.

Yet, but for that agreement between her and Vinh regarding the reimbursement of $30,000, she would not have been entitled to any reimbursement of her contributions to the mortgage repayments. She would, however, have been entitled to receive close to $17,000. If she had been paid the amount of $30,000, she would have received more than that to which she was entitled. But she did not receive that amount.

It was not contended that the payment of $30,000 amounted to a condition upon, and subject to, which the Transfer would take place. Nor was it submitted that Vinh, having accepted the Transfer, was bound by a personal equity, falling short of a charge on property, which he was bound to satisfy.

Perhaps, those contentions were not relied upon because the above calculations did not include taking into account the repayments of $42,000 that Vinh had made by paying various amounts into Stephanie’s account over the period of her ownership of the Guildford property. There was no evidence that Vinh intended to make a gift to her of the amounts that he paid into her account. Nor do the calculations include the other payments, made on credit cards that Vinh made on Stephanie’s behalf.

As stated earlier, Stephanie wrote that Vinh had said:

There is the evidence of the payments made by Vinh for, or on behalf of, Stephanie: Ex. VTC1 (Annexure F), which payments were, as mentioned, accepted by counsel for Stephanie (T228.23 – T229.16).

Bearing in mind that Stephanie accepted that there was discussion between her and Vinh to the effect that his payments would be “sorted out later”, it seems to me that I should offset the payments made to Stephanie’s accounts (which far exceeded $30,000) and treat those amounts in satisfaction of the payment of the amount to reimburse her for her contributions to the repayment of the mortgage instalments. To do otherwise would not be giving effect to what Stephanie and Vinh had discussed and agreed upon.

There was no satisfactory evidence of the deceased having made any contributions at all to the initial purchase price in 2005, or to the borrowing which enabled Stephanie’s debt to be repaid in 2009. It follows that any interest that the deceased held in the Guildford property when it was transferred into his name, in 2009, was held on resulting trust for Vinh.

Jessie, as the executrix to whom Probate was granted, did not dispute that this result followed.

Section 41(1) of the Real Property Act 1900 (NSW) provides, in part, that upon registration of a dealing, "the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions and contingencies set forth and specified in such dealing ...".

Section 42(1) provides in part:

The “fraud” spoken of has been described as “statutory fraud”.

Section 118 provides that:

The Real Property Act does not define “fraud”. So far as the Real Property Act is concerned, the only assistance that can be derived is from s 43(1) which provides that notice is expressly excluded from the statutory concept. The provision provides, in substance, that a registered transferee of an interest in land is not to be affected by actual or constructive notice of any pre-existing unregistered interest or trust.

It is well settled, however, that the “fraud” spoken of in s 42 is actual fraud, not constructive or equitable fraud, where there is no dishonesty or intention to cheat. The statutory fraud exception arises where there is dishonest conduct on the part of the registered proprietor, or his agent, whose title is challenged. It includes “dishonesty on the part of the registered proprietor in securing his registration as proprietor”: Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614; [1988] HCA 16 (Mason CJ and Dawson J).

In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 at 106 – 107, Lord Buckmaster, in delivering the judgment of the Privy Council, wrote:

In Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202 at 221, Powell JA wrote:

In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, at [192], the requirement that there be actual fraud or moral turpitude was confirmed.

Thus, the critical elements of statutory fraud are dishonesty, moral turpitude, a want of probity, and a wilful and conscious seeking to defeat or disregard another’s rights.

Of course, as was held by the High Court in Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248; [1998] HCA 12, at [10] – [11]:

I turn next to the concept “fraud against the registrar” as a subcategory of statutory fraud. If registration of a document is obtained by a fraud practised on the Registrar-General, that will be fraud for the purposes of s 42 of the Real Property Act which may be sufficient to deprive the registered proprietor of the advantage of registration: Australian Guarantee Corporation Ltd v De Jager [1984] VR 483; National Commercial Banking Corporation of Australia Ltd v Hedley (1984) 3 BPR 9477; Westpac Banking Corporation v Sansom (1994) 6 BPR 13790; Sansom v Westpac Banking Corporation (1996) 7 BPR 14615. Yet, the “fraud” must be “practised with the aim either of depriving someone of an interest in land or of deceiving the Registrar-General”: P Butt, Land Law (6th ed, 2010, Thomson Reuters) at [20-73].

I set out some of the above principles in Anderson v Anderson (2016) 18 BPR 36253; [2016] NSWSC 1204, at [363] – [374]. An appeal from this decision was heard and dismissed: Anderson v Anderson [2017] NSWCA 131.

About this type of fraud, Natalie Skead and Penny Carruthers, in "Fraud against the Registrar - An Unnecessary, Unhelpful and Perhaps, No Longer Relevant Complication in the Law on Fraud under the Torrens System" (2014) 40(3) Monash University Law Review 821, at 822, wrote:

In Australian Guarantee Corporation Ltd v De Jager, Tadgell J considered the effect of a mortgage that was caused to be registered, in which the Plaintiff, a mortgagee, through its employees, had knowledge that a signature on the relevant mortgage instrument was not duly attested. In finding there had been a statutory fraud, his Honour rejected that an attesting signature was “no more than a formality”, by pointing to the dependency of Torrens title on “the good faith of those presenting instruments for registration”: at 496 – 497.

His Honour, then, stated, at 498:

Of interest is the decision of Bryson J in Hickey v Powershift Tractors Pty Ltd (1998) 9 BPR 17,339, as, similar to the present case, it involved an untrue attestation, but the Transfer was actually executed by relevant parties.

His Honour stated, at 17,344:

Also apt to the circumstances of the present case, in Russo v Bendigo Bank Ltd [1999] 3 VR 376; [1999] VSCA 108, the Court of Appeal in Victoria considered the false attestation by a clerk, employed by a solicitor, who, by virtue of signing the relevant attestation clause, indicated that she had witnessed the mortgagor’s signature on the relevant mortgage document. Ormiston JA held (with Winneke P agreeing), at [36] – [38] that although the clerk had made a false statement, there was no direct evidence of a critical element of fraud, that is dishonesty of moral turpitude.

His Honour also considered, at [40], that as a clerk of limited experience and training, she may have been “unaware of the difference her attestation made in the process leading to registration” and, as such, this process was “seen by her as no more than a formal step in the requisite legal chain of procedures”. On the evidence available to the Court, although the clerk had made a false statement, this in itself did not show that she had been dishonest: at [41]. (Indeed, Ormiston JA refused to draw the inference that she knew that she was putting the mortgage forward on the path of registration.)

Ormiston JA, then, stated, at [42]:

Although it was a case that considered the alteration of a document presented to the Registrar-General, in respect of which the same principles apply, in Davis v Williams (2003) 11 BPR 21,313; [2003] NSWCA 371, Young CJ in Eq, stated at [110]:

He also wrote at [140] and [142]:

Hodgson JA, at [25] considered the fact that the registration clerk had not affected a “material misrepresentation, which was such as to influence the Registrar-General to act in a way materially different from what otherwise would have been done, rather than being a mere formality”, meant that the registration clerk was not attempting to affect any person’s property interests; she was simply making what she thought was a short cut in the registration process.

On the issue of the requirement of moral turpitude, Hodgson JA went on to write, at [26]:

(It bears mentioning that in Davis v Williams, at [253], Gzell J in reaching a differing view, considered that the “false lodgement of the altered document was … enough to constitute fraud. That finding did not depend upon direct evidence that might have been given by the registration clerk as to her state of mind.”)

Relevantly, also, in Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548, Sackar J stated, at [95]:

Indeed, what should be drawn from these authorities is fraud practised on the Registrar-General, such is the case with a falsely attested instrument, will constitute fraud in respect of s 42 in circumstances that involve moral turpitude, or intention of depriving a person of an interest in land through a dishonest act, by the person obtaining registration. When it is known to a party to the transaction that his, or her, own dishonesty in obtaining the relevant property interest will directly lead to the other party losing her, or his, interest, it is relatively easy to conclude that moral turpitude has been established. If the other party is not being deprived of her or his interest at the expense of the dishonest party, then it would be much harder to do so.

It is more likely than not that it was the deceased, rather than Vinh, who caused the signature of Yu Hua Mo to be placed, as the witness to Stephanie’s signature, on the Transfer. She was, after all, the deceased’s friend, not a friend of Vinh. (Furthermore, it was not put to Vinh, that he had orchestrated the signature of the witness on the Transfer.)

I am satisfied that this is not a case of the forgery of Stephanie’s signature that has been wrongly attested, since I have not accepted her evidence that she did not sign the Transfer. The present case is somewhat unusual in that the attestation was untrue but the Transfer, as I have found, was, in fact, executed by Stephanie as purportedly attested.

The question that arises is whether what occurred involved a consciousness that what was being done was wrong, or that to take advantage of the relevant situation involved wrongdoing. Without in any way condoning the conduct, it is unlikely, on the facts of the present case, that the deceased, was conscious of any wrongdoing. After all, Stephanie wanted to be relieved of the burden of the mortgage and the mortgage repayments; she, as I have found, signed the Transfer, in Brisbane, and returned it, without her signature thereon having been witnessed; and the way forward, so far as substituting mortgagees, was to transfer the Guildford property out of Stephanie’s name. It is likely that the deceased, in asking the witness to attest Stephanie’s signature was simply avoiding the trouble and delay in having the Transfer sent back to Stephanie, to have it re-signed by her and her signature thereon witnessed, and having her return the re-executed Transfer for lodgement with the incoming mortgagee.

Furthermore, in having the witness sign the Transfer, neither the deceased nor Vinh, was seeking to deprive Stephanie of her interest in the Guildford property. On my findings, she had agreed to have the Guildford property transferred out of her name, this being the way in which her liability under the registered mortgage would be discharged. She was well aware that Vinh was going to arrange finance to repay the debt secured by the mortgage that was registered in her name.

Also, although the Transfer was presented to the Registrar-General with a false attestation, there is limited evidence from which to draw a conclusion that the deceased and/or Vinh was aware of the significance of the attestation in the process in registration. Nor am I able to infer that the statement, although false, was known to be false in a material respect, so that the Registrar-General would be induced by the representation to act in a way materially different from what otherwise would have been done.

In this regard, I consider that to infer such a finding of actual dishonesty, without this allegation having been put to Vinh, and bearing in mind the limited evidence surrounding the circumstances of the false attestation and the lodgement of the Transfer, should not occur.

Consequently, I cannot find that there was dishonesty in respect of the deceased and/or Vinh because there is significant doubt as to whether either had an appreciation of the significance of the attestation of the Transfer document, and by extension, an appreciation of the representation that such attestation has made on the Registrar General, when remembering the critical fact that Stephanie had signed the Transfer.

Instead, it seems more likely than not, that any false statement was made in the absence of moral turpitude and in the absence of intent to deprive a person of an interest through a dishonest act. In the circumstances, I am satisfied that the false attestation, in the mind of those involved, was executed in order achieve what was believed to be a practical short cut in respect of what was seen as a formality.

Furthermore, even if the Transfer were set aside and the Guildford property were held as it was prior to its registration, and it was held solely for Stephanie, she would hold the Guildford property on resulting trust for Vinh. I have dealt with Vinh’s obligation to repay the amount of $30,000, which he had agreed to pay to her as part of the transaction.

In the circumstances, there would be no utility in setting aside the Transfer. As it happens, I am not satisfied that there was fraud in the relevant sense required to have the Transfer set aside.

No submissions, written or oral, were made on the claim for damages made in the Statement of Claim and nothing was put as to the basis of such a claim. I have assumed that the claim for damages was not pressed.

A loan is ordinarily understood to be an “advance of money coupled with a contract for its repayment”: Potter v Potter [2003] 3 NZLR 145, at [13]. The intention of the parties to such a loan, usually, is that ownership in the funds passes to the borrower and the lender is left with an in personam right, secured or unsecured, of repayment: Ying v Song [2010] NSWSC 1500 at [32].

I am satisfied that, despite the close familial relationship that existed in 2009 between Stephanie and Vinh, there was a contractual intention created by the discussion between them pursuant to which Stephanie advanced $30,000 to Vinh, and pursuant to which, he agreed to repay her that amount and interest of $5,000.

Put another way, I am satisfied that the usual presumption, that agreements made in a family are not intended to have legal force, was rebutted, and the parties regarded their arrangement to have legal consequences: Ashton v Pratt (No 2), at [32].

There is little doubt that the debt created was one which was repayable no earlier than the end of 2009. At any time thereafter, Stephanie could have commenced proceedings to recover the debt. A cause of action accrues when all the facts have occurred which give rise to a right to sue: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17, at 245. In this case, it accrued once the date for repayment passed and the debt had not been repaid.

Alternatively, even if the debt was one repayable on demand, the cause of action for the repayment arose immediately the loan was made, that is, in August 2009, not when the first demand was made for repayment, in December 2009: Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51, at 566; Ogilvie v Adams [1981] VR 1041, at 1043; Haller v Ayre [2005] 2 Qd R 410, at [2] (per de Jersey CJ), [20] – [26] (per Keane JA).

Vinh, in accordance with s 68A(1) of the Limitation Act 1969 (NSW) did plead that Stephanie’s right or title to claim the debt had been extinguished: Paragraph 28 of the Fourth Amended Defence.

Section 14(1)(a) of the Limitation Act, which is in the following terms, is relevant in either case:

(In this case, Stephanie’s cause of action was in debt, grounded upon a contract made with Vinh.)

Section 63 of the Limitation Act provides:

Section 63(2) is not applicable in the circumstances of this case.

Since the claim was made only upon the filing of the Statement of Claim on 9 February 2017, and since that is more than six years after 31 December 2009, Stephanie’s claim is defeated, and the cause of action would, by virtue of s 63(1) of the Limitation Act, be extinguished.

As was pointed out by Pembroke J in McEvoy v McEvoy [2012] NSWSC 1494, at [43]:

It is clear that the onus of establishing a limitation defence is on the party setting that defence up, in this case, Vinh.

Stephanie did not file a reply to the defence, or make any submissions, suggesting that the bar to obtaining relief was postponed by reason of s 54 of the Limitation Act as a result of Vinh having confirmed the cause of action. However, I shall deal with that possibility in light of the fact that an opportunity was not given to file an amended Defence to the Cross-Claim.

Section 54 provides:

The onus is on Stephanie to establish the alleged confirmation: St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961, Parker J, at [58].

In Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233, Newnes JA summarised some of the relevant principles at [36] - [39], although his Honour was dealing the Limitation Act 1935 (WA), as follows:

There is no doubt that if what was done by Vinh, through his solicitors, in 2011, was confirmation of the debt, within the meaning of s 54, then it was made prior to the expiry of the limitation period: Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71, per Brennan J, at 569 – 570. In addition, although the correspondence was not written to Stephanie, it was written to her solicitors, who were her agents, for the purpose of being communicated to Stephanie. Vinh did not make the acknowledgement himself, or sign the correspondence in which the acknowledgement was made. However, there was no suggestion by him that his solicitors did not have express authority to do so.

But, in about July 2011, Vinh’s solicitors, whilst stating to Stephanie’s solicitors, in writing, that Stephanie had loaned Vinh the amount of $30,000, and that he had agreed to pay it back, with interest of $5,000, also wrote that Vinh was not required to repay the amount that Stephanie claimed.

It is also important to remember what Gibbs CJ wrote in his dissenting judgment in Stage Club Ltd v Millers Hotels Pty Ltd, at 544:

Thus, whilst Vinh, by his solicitors, had acknowledged the undisputed relationship of lender and borrower that had existed in 2009, he did not admit, or recognise, the then present existence of the debt in mid-2011. The response was not one that he was unable, for financial reasons, to pay the debt (which had been his response in late 2009, and then again, in 2010), but that he denied any liability to repay. Indeed, he stated that if proceedings were commenced to recover the debt, those proceedings would be defended.

In my opinion, the evidence for Stephanie fails to discharge the onus which lay on her to show that a confirmation occurred after December 31, 2009. The result is that her claim for the $30,000 and $5,000 fails.

In the circumstances, as I have concluded that the whole of the beneficial interest in the Guildford property lies with Vinh, there is no estate, or notional estate, out of which a family provision order can be made. Accordingly, that claim for relief brought by Stephanie must also fail.

It is unnecessary to do no more than note that each of Vinh and Jessie stated that in the event that Stephanie’s proceedings were unsuccessful there should be no order as to made against her for their costs. An order to that effect will be made.

The Court: