Tjen v Bilic

HIS HONOUR: These proceedings involve the ownership of land and require a consideration of events and conversations that are said to have occurred as long ago as 1999 and 2000. There are also conversations said to have taken place between 2005 and 2012 upon which reliance is placed. The matter is further complicated by the fact that one of the principal participants in both the events and the conversations died prior to the commencement of the hearing. In addition, the Plaintiff gave evidence through an interpreter about the conversations that she is alleged to have had with the deceased.

Kruno Bilic (“the deceased”) died on 23 July 2014. He left surviving him his wife, Thania (a.k.a. Rita) Hambalie Tjen, who is the Plaintiff, and a step-son, David Hambalie, the only child of the Plaintiff. Each is a witness whose affidavit was read and each was cross-examined.

The deceased also left surviving him, a brother, Jakov (a.k.a. Jack) Bilic, who is the father of Mijo Victor Bilic, who is the Defendant, and of Anna Ruze Bilic. Each is a witness whose affidavit was read and each was cross-examined.

The family members were referred to in the affidavits and during the hearing by her, or his, first name. Without intending disrespect, I shall do the same. I shall, however, refer to the parties as the Plaintiff and the Defendant.

(There is no suggestion that there were any other members of the deceased’s family with whom he had a continuing familial relationship in Australia. For example, there is some evidence that the deceased had, or may have had, a son. There is also evidence that the deceased had two other brothers, and several nephews, in Croatia, with whom he kept in contact. None have played any part in the proceedings.)

The Defendant is, and has been since 14 March 2000, the registered proprietor of land situated at Winstanley Place, Mount Pritchard (“the Mount Pritchard property”). The claim by the Plaintiff relates to whether the deceased had an equitable interest in the Mount Pritchard property by virtue of a monetary contribution to the purchase price.

The proceedings were commenced by Summons filed on 23 October 2015, in which the Plaintiff sought, inter alia, the extension of a caveat lodged in relation to the Mount Pritchard property. She sought, by way of final relief, a declaration, pursuant to s 75 of the Supreme Court Act 1970 (NSW), that the Defendant’s interest in the Mount Pritchard property was held by him subject to a resulting trust in favour of the deceased.

On 28 October 2015, by agreement of the parties, the caveat was extended until further order. It remains lodged on the title to the Mount Pritchard property.

By leave of the Court granted on the same day, the Plaintiff’s Summons was amended (the amended Summons being filed on 5 November 2015) to include a prayer that the Defendant be ordered to execute a Transfer transferring the Mount Pritchard property, or such interest as the deceased was found to have therein, to his estate.

On 29 March 2016, pursuant to an order made on 17 March 2016 by the Registrar in Equity for the matter to proceed by way of pleadings (described as “Points of Claim”), the Plaintiff filed Points of Claim (a few days later than the Registrar had directed but no complaint is made about this). The relief sought by the Plaintiff in the Points of Claim was amended to include an alternative claim for equitable compensation and interest pursuant to s 100 of Civil Procedure Act 2005 (NSW). (Ultimately, counsel for the Plaintiff did not deal, at all, with the claim for equitable compensation: T157.03 – T157.12. In the circumstances, I consider that the claim for equitable compensation was abandoned by the Plaintiff and I shall not consider it further.)

There was no relief sought in the Points of Claim for the imposition of a constructive trust, or for an equitable lien, and no order was sought for the appointment of trustees for sale in the event that the Plaintiff succeeded in her claim.

The Defendant filed Points of Defence, but no Cross-Claim, on 11 April 2016. In that document, he made a number of admissions of fact but denied that the deceased had any legal, or beneficial, interest in the Mount Pritchard property, other than a life interest therein. He asserted that the amount provided to him by the deceased was a gift, subject to a condition which had been fulfilled, that the deceased be permitted to live in the Mount Pritchard property for his life. I shall refer to the facts that he admitted as part of the background facts to which I shall refer.

Shortly after the commencement of the hearing, the Court raised the likelihood, whatever the result, of further litigation between the parties, by way of proceedings, by one, or the other seeking relief under s 66G of the Conveyancing Act 1919 (NSW) if the Plaintiff was successful; and by way of proceedings, brought by the Defendant, for possession of the Mount Pritchard property, if the Plaintiff was unsuccessful. It was suggested that the parties might wish to give consideration to whether such litigation could be avoided by reaching an agreement on what would occur in either event.

On the third day of the hearing, counsel informed the Court that the only agreement that had been reached by the parties related to what orders should be made in the event that the Plaintiff was unsuccessful, namely that:

Since I have found that the Plaintiff has not established the claim that she has advanced, I shall make orders that accord with the parties’ agreement at the conclusion of these reasons.

I should mention that there is evidence that the affidavit by a number of the witnesses had been interpreted by an accredited interpreter. Importantly, there was evidence that the affidavits of the Plaintiff and David were each interpreted from the Indonesian language (described as her and his “customary language”) to the English language.

The Defendant, Jack, Anna, and Anna’s son, Marko (who had, as stated in his affidavit, acted as the correspondent for Mijo, Anna and Jack, by writing down what each had dictated to him), each gave evidence in the English language.

The deceased left a duly executed Will that he signed on 31 July 2012. In that Will, the deceased appointed the Plaintiff as the sole executrix and trustee of the Will and, after the payment of debts funeral and testamentary expenses, gave the whole of his estate to her absolutely.

The Plaintiff gave evidence, which I accept, that the deceased’s estate was of little monetary value. She says that it consisted of personal effects (clothing, furniture and household goods) and “not much” money in a bank account into which the deceased’s pension had been paid. (The Plaintiff could not remember how much money was in the deceased’s bank account at the date of death.) She also identified the deceased’s interest in the Mount Pritchard property as included in the deceased’s estate.

At the commencement of the hearing, there being no evidence of Probate of the deceased’s Will having been granted to the Plaintiff, the parties confirmed that Probate had not, in fact, been applied for by, or granted to, the Plaintiff.

In these circumstances, the Court raised the question whether the failure of the Plaintiff to have obtained a grant of Probate, or any interim grant of administration, prior to the commencement of the proceedings, rendered the proceedings a nullity.

The written submissions of neither party dealt with the question whether the Plaintiff had, or did not have, standing to bring, and/or maintain the proceedings, as there had been no grant of Probate of the deceased’s Will to her. When it was raised by the Court, it seemed as if neither counsel had given any real consideration to this aspect, or if either had, did not consider it to be of importance: T1.40 – T2.30.

Discussion then took place regarding what steps, if any, could be taken, to deal with the matter, but it was left in abeyance so that the legal representatives could consider, whether, and if so, how, the issue should be dealt with.

The question arises because from, and after, the death of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person’s estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee and Guardian (constituted under the NSW Trustee and Guardian Act 2009 (NSW), in the same manner, and to the same extent, as previously the personal estate and effects vested in the Ordinary in England: s 61 of the Probate and Administration Act 1898 (NSW). The New South Wales Trustee acts as a formal repository of title.

In Scallan v Scallan [2001] NSWSC 1129, Windeyer J considered an application by a beneficiary to set aside certain (inter vivos) transactions by the deceased on the grounds of either undue influence or unconscionable conduct, or, in the alternative, under the Contracts Review Act 1980 (NSW). The proceedings before his Honour had been instituted at a time when there were contested Probate proceedings that had not been determined and, therefore, there had been neither a grant of Probate nor a grant of administration (general or limited) in the estate of the deceased.

Windeyer J, at [9]-[12], wrote:

A similar view was expressed, more recently, by Davies J in GEL Custodians Pty Ltd v Estate of the late Geoffrey Francis Wells [2013] NSWSC 973, at [52], when he wrote:

A different, tentative, view was expressed in Anderson v Anderson (No 2) [2013] QSC 73, in which Dalton J, at [3], wrote:

In the present case, it may be accepted that the Plaintiff, as sole beneficiary of the deceased’s estate, is the only person materially interested in the due enforcement of the claim being made and would be most seriously prejudiced if it was not duly prosecuted: Ramage v Waclaw (1988) 12 NSWLR 84, at 92.

On the final day of the hearing, no question of prejudice having been suggested, and the case having been continued after the issue was raised, the Defendant indicated consent to an order being made that the Plaintiff should be appointed a representative of the deceased’s estate for the purposes of the proceedings and that she should conduct the proceedings on behalf of the estate.

Counsel for the Plaintiff confirmed that the Plaintiff consented to such an order being made.

In the circumstances, as there are no persons, other than the parties to the proceedings, who are, or who may be, affected, by the making of such an order and by the determination of the proceedings, as the Plaintiff is the only person with an interest in the deceased’s estate under the terms of his Will, and as the management of the proceedings would facilitate the overriding purpose of the Civil Procedure Act 2005 (NSW), to provide for the just, quick and cheap resolution of the real issues in the proceedings, and would permit the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings, at a cost affordable by the respective parties (ss 56 and 57 Civil Procedure Act), the Court, in the circumstances of this case, was prepared to make that order. To do otherwise, would result in delay and cost to both parties.

I next set out the facts behind the issues that require some elaboration, which I am satisfied are not the subject of any real dispute between the parties. To the extent that any of the facts to which I shall refer are in issue, the facts stated should be regarded as the findings of fact in these proceedings.

The deceased was born in October 1926 in Omis, Croatia. He came to Australia in the early 1960’s and lived here until his death. A copy of the deceased’s passport, issued in August 1994, reveals that his nationality was Australian.

By 1999, the deceased spoke, and understood, the English language well. However, English was not his first spoken language and when he conversed with Jack, they spoke in Croatian. The deceased, the Plaintiff, David, the Defendant and Anna, conversed with each other in English. It was not suggested that the deceased could not read, or understand, words written in English.

The deceased was married twice. His first marriage ended in the late 1990’s.

There may have been a property settlement between the deceased and his former wife, as a result of which the deceased received some real estate in Queensland.

For a period of time after the dissolution of his first marriage, the deceased lived, on occasion, with Jack and Jack’s family, in Dickson Street, Newtown, in Sydney. Members of the household appear to have included Jack’s wife (who died in about 2007), the Defendant, Anna, and some of her children.

In late 1993, the deceased ceased work due to ill health. It appears that he received $172,427.43, as a termination payout, on 30 November 1993. In addition, he received $11,587.35, in August 1994, as a payout from an insurer.

For the remainder of his life, the deceased suffered health problems and was sometimes hospitalised. It appears that he did not work after about 1993.

There is no evidence about any medical condition suffered by the deceased that was likely to affect his cognition in 1999 or 2000. (His Death Certificate reveals the causes of death, in 2014, to be “Cardiac failure – Days, Cardiomyopathy – Years; Chronic renal failure, atrial fibrillation, bladder cancer, mild cognitive impairment”.)

On a date not entirely clear on the evidence, but sometime in 1999, a friend of the deceased, Stretko Alavanja, introduced the deceased to Alexander Pucar, who was, then, the registered proprietor of the Mount Pritchard property. As Mr Pucar was proposing to return to Belgrade, he wished to sell the Mount Pritchard property. Mr Alavanja, who stated that he and the deceased were “inseparable” after they met, was a witness called by the Plaintiff and he was cross-examined.

Subsequently, in about November 1999, there were discussions between the deceased, Jack, the Defendant, and Anna, relating to the purchase of the Mount Pritchard property. Shortly after the deceased inspected the Mount Pritchard property, the Defendant also inspected it. He discussed its purchase with members of the family.

I shall return to the evidence of the relevant discussions, in detail, as the content of these discussions are in dispute. It is not in dispute, however, that the subject matter of some of the discussions included that the Mount Pritchard property was to be purchased as a home in which the deceased could live for the remainder of his life.

On a date that is likely to have been about 23 November 1999, Mr Anthony Bell, who appears in some way not precisely established to have been connected with the Australia and New Zealand Bank, and who is described in one of the Bank’s documents as “Manager”, and by the Defendant as “loan manager from the ANZ Bank”, attended at Jack’s home in Newtown. The deceased was likely to have been present at the time Mr Bell attended on this date.

The purpose of the meeting with Mr Bell was to discuss the steps to be taken to enable the Defendant to successfully apply to the ANZ Bank for a home loan. Again, it will be necessary to return to the conversations that are said to have occurred at the time, and to identify the contemporaneous documents that relate to the events that then occurred. (Mr Bell was not called as a witness by either party.)

Shortly thereafter, on a date not disclosed in the evidence, but likely to have been in early 2000, the Defendant entered into a Contract to purchase the Mount Pritchard property (Ex. D2). The purchase price was $170,000. The stamp duty that was payable by the purchaser was $4,444. Legal costs and disbursements of the solicitors acting for the purchaser were $1,335.

On about 14 March 2000, the Defendant was registered as the sole proprietor of the Mount Pritchard property, completion of the Contract having occurred on 9 March 2000. Simultaneously, a mortgage to the ANZ Banking Group Limited was registered on the title to the Mount Pritchard property.

Following the purchase, the deceased moved into the Mount Pritchard property with Mr Alavanja. They lived there, together, for about 18 months.

There is evidence that the Defendant has paid all of the outgoings on the Mount Pritchard property that do not relate to utilities. For example, he has paid rates, taxes and insurances. The deceased only paid “for what he used, such as electricity, water and telephone”.

There is no evidence that immediately after the purchase of the Mount Pritchard property, the deceased made any enquiries to ensure that his name was on the title. Several years later, perhaps in 2005, it appears that the deceased found out, it was not. (David gave oral evidence, to which reference will be made later, relating to the deceased’s attendance, with him, at the Marrickville branch of the ANZ Bank, and with a lawyer in Fairfield. A reference to each of the visits, and what occurred, was not included in David’s affidavit.)

The Plaintiff was born in Indonesia in June 1951. She came to Australia in late January 2002, having first arrived in Perth. She then travelled to Sydney, on holiday, where she and the deceased met in “around February 2002”. They were married on 23 March 2002. She remained married to him until his death about 12 years and four months later.

The deceased and the Plaintiff lived in the Mount Pritchard property from the time of their marriage. The Plaintiff has continued to live there, with her son, David, who had moved there in about 2006, after the death of the deceased. Thus, the deceased had lived in the Mount Pritchard property from the time of its purchase until he died.

The Plaintiff did not see the Defendant and his family very often. The contact was largely limited to Christmas visits. She says that Jack visited the Mount Pritchard property rarely. The Defendant visited the deceased even more rarely.

On 30 August 2012, a caveat on behalf of the deceased was recorded on the title to the Mount Pritchard property. (A copy of the caveat, as registered, did not form part of the evidence in the case. However, it was lodged during the lifetime of the deceased, and although the deceased asserted to Anna “he didn't know what [the Plaintiff] and the others gave him to sign. He said they made him sign it just as he got out of hospital”: T113.01-T113.02, I am satisfied that it was lodged with his acquiescence.

In about March 2015, following the death of the deceased, the Defendant demanded that the Plaintiff pay rent of $300 per week for her occupation of the Mount Pritchard property. The Plaintiff did not agree to do so and has not paid any rent, or occupation fee, to the Defendant despite her continued occupation.

On 30 September 2015, the Defendant caused a lapsing notice to be issued by the Registrar-General in respect of the caveat that had been lodged on behalf of the deceased. It was this event that prompted the commencement of the proceedings.

The Plaintiff asserted that the deceased provided the amount of $120,000 to the Defendant and that it was this amount that was used, in part, by him, to purchase the Mount Pritchard property.

The Defendant admitted that the deceased had provided $83,000 to him, by way of a bank cheque in November 1999, which he used as part of the purchase price of the Mount Pritchard property. He said that the amount provided to him was a gift made to him to enable the purchase of the Mount Pritchard property and upon the condition that the deceased would be allowed to live in the Mount Pritchard property until his death.

It follows that the questions to be determined are:

The parties agreed that if a resulting trust were established, the deceased’s interest in the Mount Pritchard property, if he had provided $83,000, would be 48.82 per cent; if he had provided $120,000, the deceased’s interest would be 70.58 per cent. (The percentages would be slightly less, in each case, if one adds the costs and expenses of purchase, including stamp duty, to the purchase price of $170,000.)

These issues raise the awkward situation in which the Court has to adjudicate the question whether a transaction was one of gift, or was otherwise, where one of the principal participants is dead, where there is an inadequate recording of the transaction involving the deceased and the Defendant, and whether what is recorded, so far as the conversations that are said to have occurred, is accurate. Whilst the fact of payment is admitted even the amount paid is in dispute.

There was really no dispute about the law. I shall set out the relevant general principles.

The Court’s findings about who holds the beneficial interest in land are made with the assistance of presumptions. The first relevant presumption is that the “prima facie position is that the beneficial ownership of real property is commensurate with the legal title”: Currie v Hamilton (1984) 1 NSWLR 687, 690, per McLelland J. Sometimes, this presumption is displaced by a presumption of a resulting trust. Where the legal title does not reflect the contributions of the persons who made them, then (at least where there is no presumption of advancement) it will be presumed that the beneficial ownership of the property is held in the proportions in which they contributed the purchase money.

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 92, at 93, “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.”

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

In Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, at 3, Gibbs CJ wrote:

Mason and Brennan JJ (in a portion of the judgment with which Deane J agreed, at 271) applied a principle referred to in Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, 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] SASCFC 57, a useful description of what is required was described as follows at [28 - 30]:

The burden of rebutting the presumption of a resulting trust falls upon the party against whom the presumption is raised (in this case, the Defendant): Ryan v Ryan [2012] NSWSC 636, per Ward J (as her Honour then was) at [57].

The presumption of resulting trust 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, Edelman J (as his Honour then was) noted, at [98], that the intention is an objective, manifest intention (not an unexpressed subjective intention).

Although a significant number of documents were annexed to affidavits or tendered, ultimately, there were not very many contemporaneous documents that are important in the case. I shall deal next with the documents. I shall endeavour to identify the documents in date order.

By letter dated 9 July 1997, addressed to a firm of solicitors acting for the deceased, the solicitors for his former wife summarised (with supporting documents) various amounts of money, totalling $261,025.36, and requested “your client clarify…why he omitted to declare his financial resources…the following entitlements he received”.

In relation to the receipt of the superannuation monies, the deceased’s solicitors by letter dated 15 September 1997, responded to the solicitors for his former wife, setting out their instructions on how the monies received had been expended:

(There is a statement of the deceased, to which reference will be made later, that is inconsistent with what appears in the Paragraph numbered (1) in the letter quoted, namely “I take the money (sic) 120000 $ to Croatia my intention to give it to my brother (Milan Bilic) but up there it turns out my brother had passed away. So I bring back the money 120000 $ to Sydney.”)

There is a bank statement relating to a passbook account in the name of the deceased, at the ANZ Bank, Fairfield Branch, which covers the period 23 February 1998 to 19 March 1998. This reveals that, as at 19 March 1998, the account balance was $919.68.

A Sales Advice, dated 30 November 1998, reveals that the deceased paid a holding deposit of $300 on a property at Canley Heights, the purchase price of which was $133,500. However, in a letter dated 11 December 1998, solicitors acting for him, informed the solicitors who were acting for the vendors of that property, that “our client no longer wishes to proceed with the purchase…”. (There are no documents evidencing the reasons why the deceased did not wish to proceed with the purchase.)

There is no documentary evidence disclosing how the deceased held the amount of $83,000, or the amount of $120,000, in late 1999. The deceased stated that he gave $120,000 in cash, yet there were no documents, for example, relating to the repatriation of the proceeds of sale of any Croatian property, or the sale of any Queensland property, then owned by the deceased.

There is next, a copy of three undated pages of notes, said to have been handwritten by Mr Bell, which were given to the Defendant. The first page of the handwritten notes is in the following terms:

Counsel for the Plaintiff submitted that the reference to “Letter from Uncle” should lead the Court to infer that the deceased had not been present at the time of the meeting. I am not prepared to draw any such inference from the fact that the deceased was not named as being the person from whom the letter was to be obtained.

There is next a document, dated 23 November 1999, in the handwriting of the Defendant, and signed by the deceased, which is in the following terms:

There is a dispute about whether this document was prepared, and signed, by the deceased during Mr Bell’s attendance at the Newtown home, the Defendant asserting that the deceased was present (corroborated by Jack and by Anna) and that he signed the document on that date (not corroborated by either Jack or Anna).

Counsel for the Plaintiff suggested to each of the Defendant, Jack and Anna, that the deceased had not been present on the occasion of the meeting with Mr Bell. Each confirmed that the deceased had been present on that occasion. Indeed, the Defendant said that he had written the date under the deceased’s signature on that document on the day it was signed by the deceased. I have no reason to reject the evidence of each of them on this topic. (No Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, submission was made by either party, concerning the failure of the other to call Mr Bell.)

Counsel for the Plaintiff also suggested to the Defendant that the document dated 23 November 1999, had not been signed by the deceased during the meeting with Mr Bell, but that it had been presented to the deceased some time later. The Defendant denied that was so, and stated that the deceased had signed the document on the date shown on it. Again, I have no reason to reject this evidence. However, even if the Defendant’s evidence is inaccurate, what was not in dispute was that the document dated 23 November 1999 had been signed by the deceased, or that it had been provided to the ANZ Bank in order to meet one of the requirements of the Bank.

Nor was it suggested to any witness called in the Defendant’s case, that the deceased would have been unable to read the document that he had signed.

The ANZ Bank issued a “Loan Certificate” dated 30 November 1999, confirming that the Defendant “would be eligible for an ANZ home loan (Consumer Loan) of an amount up to $100,000 upon formal application and subject to the following items being confirmed or provided”. The only “items” marked as requiring confirmation or production on the Loan Certificate was “Contract of Sale details”. I am satisfied that by the date of the Loan Certificate, the document dated 23 November 1999, signed by the deceased, had been provided to the Bank.

The next document is the second page of a Statement of Account in the name of the Defendant with ANZ Trustees, the date of issue being 30 November 1999. The Defendant said that he did not have page 1 of the Statement of Account, but could provide no reason for only having the second page in answers to questions from the Bench.

The page of the Statement of Account in evidence reveals that on 22 November 1999, there was a withdrawal of $16,006 and that a cheque was drawn to “ANZ B/C IFO GIRGIS COMBINED REAL ESTATE”. Importantly, the Statement reveals that prior to the withdrawal, the amount held in the account was $83,820.14.

The page of the Statement of Account also reveals that on 30 November 1999, there was a deposit of $16,000 into the account, making the account balance $83,814.14 on that date. (No questions were asked by counsel for the Plaintiff concerning this aspect.)

I infer that the amount of $16,000 is likely to have been the balance of the deposit required to be paid for the purchase of the Mount Pritchard property. (The additional $6.00 is likely to have been the amount required to be paid for the bank cheque. It would be pure speculation to say why the amount of $16,000 was re-deposited.)

There is also a copy of a document dated 25 January 2000, addressed to the Defendant from the ANZ Bank, being a letter and attached loan offer, the latter of which set out the terms and conditions of the loan.

On the third day of the hearing, the Defendant tendered some documents, without objection, from a firm of solicitors which had acted for him on the purchase of the Mount Pritchard property (Ex. D2). These documents revealed that, as stated previously, the stamp duty paid on the Contract was $4,444 and that the legal costs and disbursements of sale were $1,335. The documents also revealed that the deposit that had been paid on exchange of contracts was $18,000, leaving the balance payable on settlement to be $152,000, plus rate adjustments (which were disclosed as $153.47).

Exhibit D2 also revealed that, on settlement, the ANZ Bank had provided the finance to complete the purchase in the amount of $99,084.10 and that the Defendant had paid the balance of $53,069.37, by bank cheque.

There is next a document, in the handwriting of the Defendant, dated 28 May 2004, and signed by him, which is in the following terms:

The Defendant gave evidence that he had written, and signed, the document at the request of the deceased. He said that he “believe[d] [the deceased] intended to submit [it] to Welfare department confirming that I owned the property and that he occupies the property rent free”.

When a call was made for the document by counsel for the Plaintiff, the original was produced by the Defendant and it was then tendered (Ex. D1). Counsel suggested that having produced the original meant that the Defendant had not provided it to the deceased. It was not suggested, however, that Ex. D1 had not been written on the date that it bore.

On 30 August 2012, a caveat was recorded on the title to the Mount Pritchard property (Ex. P1/11). A copy of the caveat bearing the registration number is not in evidence. The deceased was identified as the caveator and the interest disclosed on the caveat was an “equitable estate”. The facts relied upon in the caveat were as follows:

The reference to “the caveator’s son” is clearly an error, as the Mount Pritchard property was registered in the caveator’s nephew’s name. (It is not known whether it was an error of the deceased, or an error made by the author of this version of the caveat.) However, this is the only signed copy in the proceedings: Ex. P1/10.

Interestingly, the deceased’s signature does not appear on the copy of the caveat which is in evidence. However, Sesilia Latu, described in the caveat as a “Practising Solicitor” is identified as a witness to the “Signature of declarant” who is identified as the deceased.

Part of the contents of Ms Latu’s file that had been created when she took instructions, over several meetings with, the deceased is in evidence. (I bear in mind that these documents were created in 2012, in discussions with the deceased held at that time.)

The file contains statements said to have been made by the deceased to her. Ms Latu stated in her affidavit that “Kruno’s wife did not say much at the meeting. Her English wasn’t very good. Her son explained a few things to me, although I do not have a specific recollection of any of those things now. Mostly Kruno did the talking and told me what he wanted.”

No objection was taken to the documents containing the statements said to have been made by the deceased. Even though Ms Latu was not available for cross-examination, it was not suggested that the statements said to have been made by him recorded by her in the documents had not been made.

It is clear that some of the statements said to have been made by the deceased were inconsistent with the other evidence relied upon by the Plaintiff.

Particular matters in Ms Latu’s file which relates to the caveat, which seem to be relevant to the Court’s determination of the issues are:

Also forming part of the evidence relied upon by the Plaintiff are statements made by the deceased to the Plaintiff’s son, and written down by him, as well as a statement written down by Ms Stewart, a neighbour and friend of the deceased. As no objection to these statements was taken, despite the fact that they appear to have been written when there must have been some contemplation of litigation, it is necessary to refer to the statements in detail.

There is also a series of documents, written out by David, and signed by the deceased, taken from Ex. P2. I set out the documents verbatim and in the order that they appear in the original handwritten notebook:

Regrettably, Ms Sesilia Fehoko Latu, the solicitor who had sworn an affidavit that was read in the proceedings in the Plaintiff’s case, relating to events surrounding the instructions for, and the preparation of, the caveat, was unable to attend for cross-examination, as she was said to be unwell on each of the second and third days of the hearing.

Objection was taken to the reading of her affidavit and the contents of a file, which documents had been incorporated in a bundle of documents marked Ex. P1: T 123.24 – T123.25.

I took the view that the affidavit of Ms Latu should be read (subject to any objection not made). I remained of the view, previously expressed by me in Fulton v Fulton [2014] NSWSC 619, at [111], that:

It is necessary to discount Ms Latu’s evidence because her affidavit is said to record what she says she was told by the deceased. Yet, the conversations that are said to have occurred were reported to her many years after the events, and they must, of course, involve her interpretation of what was said to her by the deceased.

Some of the documents that were said to reveal matters seriously in dispute, which were objected to by counsel for the Defendant, without opposition by counsel for the Plaintiff, were treated as having been removed from Ex. P1 (pages 22-47, 49-53, 55-59, 75 and 94-104).

The standard of proof in this case is on the balance of probabilities. Section 140 of the Evidence Act provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account (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. I have borne s 140 in mind.

Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence in a case such as this, stating:

In Evans v Braddock [2015] NSWSC 249 at [72]-[77], I wrote:

I should also refer to Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, at [34], in which Keane JA (as his Honour then was) made the observation that “the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.” This remark was cited with approval in New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47, at [56], by Leeming JA (with whom Barrett JA and Tobias AJA agreed).

In Neale v Bank of Western Australia [2014] NSWSC 315, Hammerschlag J at [198] made the following observations:

In this case, both parties to a lesser, or greater, extent, rely upon the conversations said to have taken place with the deceased.

It is clear from the uncontested evidence, that the Plaintiff was not present in Australia at the time of the events that give rise to the dispute. Naturally, she was unable to bring direct evidence to support the case being advanced. Her case depends, almost entirely, upon what she is, and others called in her case are, said to have been told by the deceased, in some instances, many years after the events that occurred.

Other than Mr Alavanja, to whose evidence I shall refer, there is no witness called in the Plaintiff’s case who was present at the time of the purchase of the Mount Pritchard property.

In relation to the Plaintiff’s evidence, I also remember that it was necessary for her to give her evidence through an interpreter. Yet the conversations she is said to have had with the deceased were in English: T30.33 – T30.38.

Ms Latu, in her affidavit, described the Plaintiff as being present at her first meeting with the deceased and wrote that the Plaintiff’s “English wasn’t very good”. It is hard to accept that the Plaintiff would be able to give some of the evidence of conversations that she gave bearing in mind that she does not speak, or apparently understand, English well.

By way of example, the Plaintiff accepted that she did not know what the reference to “his interest in the house” meant: T20.35 – T20.47. She gave specific evidence of Ms Stewart, a witness called in the Plaintiff’s case, recommending that the deceased “should speak with a lawyer about registering a caveat on the property”, and that the deceased had told her Anna asked him if he knew about the caveat.

There are also the written statements that were made, and signed, by the deceased: Ex. P2. It is likely that these statements were made by the deceased at, or about, the time the dispute between the deceased and the Defendant had already arisen. Again, these statements were made many years after the relevant events.

The statements about what the deceased said are obviously hearsay within the meaning of s 59 of the Evidence Act 1995 and, therefore, prima facie, inadmissible. They were read, and tendered, under the provisions of s 63(2)(a) of the Evidence Act.

The deceased is unavailable to give evidence about the asserted fact because he is dead. The evidence is given by witnesses who are said to have participated in the conversation and who, therefore, heard the representations being made. Because of the deceased’s unavailability to give evidence, s 67(1) of the Evidence Act requires that reasonable notice in writing should have been given to the Defendant of the Plaintiff’s intention to adduce the evidence. Section 67(3) goes on to specify what the notice must state.

Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) rule 31.5 provides that, unless the Court otherwise orders, a notice under s 67 must be served 21 days before the date upon which the Court determines the date for the hearing of the proceedings.

Neither party gave notice in the form required by s 67 within the time required by the UCPR, or at all. However, s 67(4) provides that if notice has not been given, the court may, on the application of a party, direct that one, or more of those subsections, is to apply despite the party’s failure to give notice.

In Quintano v BW Rose Pty Ltd [2008] NSWSC 1012, Brereton J, at [6], wrote:

In this case, the evidence relied upon by each party was served well before the hearing. Neither gave notice to the other of an intention to object to that evidence and at the hearing no objection was taken to the evidence.

The way in which the death of the relevant parties, or one of them, is taken into account is in the course of deciding whether, on the balance of probabilities, the claim has been made out. As well, while this is more a matter of practice than of law, the Court treats uncorroborated evidence of communications with deceased people with considerable caution, and regards as of particular significance any failure of a claimant to bring forward corroborative evidence which was, or ought to have been, available: Plunkett v Bull (1915) 19 CLR 544 at 549.

McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789. 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].

In relation to the evidence of the Plaintiff and of the Defendant, I also remember that in Richardson v Armistead [2000] VSC 551, Hansen J, at [36], stated that:

Finally, as has recently been noted by Robb J in McNamara v Nagel [2017] NSWSC 91, at [45] – [46]:

Each of the persons who could have been called by the Defendant, other than, perhaps, Mr Bell, was called, and each was cross-examined. I did not find the evidence given by him, or her, to be inherently improbable, and to some extent, the Defendant’s evidence is corroborated by contemporaneous documents.

Because of the position of the parties and the witnesses, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), which version is the more likely and plausible.

Subject to one particular matter, in relation to the Plaintiff and each of the other witnesses called by her, I am satisfied that, for the most part, each endeavoured to tell the truth, particularly in recounting what she, or he, was told by the deceased. That does not mean, however, that what the deceased said was, in fact, true. As will be demonstrated, there was much of what he is reported to have said that was inconsistent with the contemporaneous documentary evidence.

Furthermore, any statements that the deceased might have made after the purchase of the Mount Pritchard property concerning the circumstances surrounding that acquisition cannot be determinative of the existence of a trust (be it a resulting trust or a constructive trust) over that property in favour of the Plaintiff. A determination in that regard must depend upon the objective facts and circumstances surrounding the acquisition of the Mount Pritchard property at the time.

The matter to which I refer is David’s evidence that he and the deceased went together to the Marrickville branch of the Australia & New Zealand Bank to speak with an officer of the Bank and that they had also gone to a lawyer, in Fairfield, to discuss the problem: T37-T38. He later stated that he had done so in 2006 or 2007: T53.43 – T54.05. These are stark omissions from David’s affidavit.

David also added that after the meeting with the lawyer, the deceased did not discuss “the problem with me, [he] discussed the problem with Mum”. Any conversation between the deceased and the Plaintiff about the deceased visiting the Bank, or speaking with a lawyer in Fairfield, in 2006 or 2007, does not appear anywhere in the Plaintiff’s affidavit.

Next, I shall endeavour to deal with essential elements of what the deceased said or wrote.

I am satisfied that the deceased, in conversation, did refer to the Mount Pritchard property as “my house”. Indeed, Anna, when she gave her evidence also referred to it as “Kruno’s house”, but was quick to point out that this was described in that way because he was entitled to live there until his death.

I accept also that the deceased is said to have told the Plaintiff “I have lived here since I bought it in 2000. I paid Jack $120,000 towards the house and he paid the rest by getting a loan.”

Leaving aside the amount, it is clear that whilst he had lived in the Mount Pritchard property since the purchase, from the documents referred to earlier, it is equally clear that neither the deceased nor Jack was the purchaser. The Defendant was the purchaser and the recipient of correspondence relating to its purchase.

It is also clear that Jack did not pay the balance of the purchase price by getting a loan; the Defendant did. The amount he borrowed was $100,000.

I am also not satisfied that what the deceased said to the Plaintiff and to others about the amount that he had provided to Jack or to the Defendant, namely $120,000, was true. I reach this conclusion for the following reasons.

Firstly, the amount stated by the deceased is inconsistent with the document, dated 23 November 1999, signed by him, which document specifically referred to the amount of $83,000. Secondly, the amount of $120,000 was inconsistent with the Defendant’s bank record which reveals the amount of $83,820.14 having been the account balance as at 22 November 1999. Thirdly, it was not put to the Defendant that there was any logical reason for not depositing all of the amount provided by the deceased, but only depositing the amount stated by him as having been provided by the deceased. It would be a remarkable coincidence that the amount in the account was so close to the amount said to have been provided by the deceased. Fourthly, Mr Alavanja gave evidence that at the time he drove the deceased to the Newtown home (which I infer was in November 1999), the deceased told him that he had already given “them” $100,000 in cash, and that the bank cheque (which Mr Alavanja saw and believed was for $60,000 or $65,000) “will be the last part of the payment”. This conversation with the deceased would mean that the deceased provided $160,000, or $165,000, to the Defendant. There was no claim made in these proceedings suggesting that either of those amounts was provided by the deceased. Fifthly, there is simply no evidence at all that the deceased, in November 1999, had $120,000 available to provide to the Defendant. I have referred to the only bank statement in the deceased’s name which reveals an amount held of less than $1,000. (Of course, there was also no evidence that the deceased had $83,000, which amount the Defendant accepted had been provided in November 1999 to him.)

I have not forgotten the evidence given that the deceased is said to have sold property in Queensland, or in Croatia, to amass the amount that he provided to the Defendant. However, there is simply no corroborative evidence. One might have thought that a vendor’s property search, in relation to any Queensland property that had been sold, could have been carried out, which search would have revealed the title details of any property in the name of the deceased that had been sold by him. A copy of the Transfer relevant to the sale of that property that the deceased had sold in Queensland could also have been obtained. The Transfer would have revealed the date of sale and the consideration provided by the purchasers.

The statement that he sold a property in Croatia is, in any event, inconsistent with the deceased’s statement that appears in the document written by David, that “I take the money (sic) 120000 $ to Croatia my intention to give it to my brother (Milan Bilic) but up there it turns out my brother had passed away. So I bring back the money 120000 $ to Sydney” (Ex. P2).

It is also inconsistent with a passage from the same entry, namely that “….from my hardwork I got money superannuation from company I worked a total 120000 $” (Ex. P2).

The Plaintiff also asserts that the deceased insisted that no contribution could have been made by the Defendant, or by Jack, to the purchase price of the Mount Pritchard property, as “Jack didn’t work and [the Defendant’s] income was not enough”. He also said: “Where would [the Defendant] have gotten the money to pay for the house. He didn’t have any money and neither did Jack.”

In her oral evidence, the Plaintiff repeated that the deceased had told her that the Defendant “hadn’t paid anything at all”: T21.31.

The statements by the deceased are inconsistent with the statement made by him to the Plaintiff referred to above, namely that the deceased had paid Jack $120,000 towards the house and that Jack had paid the rest by getting a loan.

They are also inconsistent with a conversation that Ms Stewart is said to have had with the deceased not long after he had moved into the Mount Pritchard property, in which the deceased said: “My nephew had to borrow $40,000 to cover the difference. But the rest was my money. I paid $120,000 for this house.”

The statements are also inconsistent with the deceased’s statement made to Mr Alavanja, which was to the effect that the deceased owned three-quarters of the Mount Pritchard property and the Defendant owned one quarter and to the statement made to Ms Latu that “my brother purchased the house but I paid for most of it”.

The statement that the deceased gave the money to Jack is inconsistent with Mr Alavanja’s evidence that he saw the deceased hand a cheque for either $60,000 or $65,000 to Anna: T70.12 – T70.17. Also, of concern is Mr Alavanja’s statement in his affidavit (para 11) that he “saw [the deceased] hand the cheque to the defendant” (although Anna was said to be present).

It is clear from the contemporaneous documents, that the Defendant borrowed $100,000 and that almost all of it was advanced on the settlement of the contract for the purchase of the Mount Pritchard property.

Despite the deceased’s apparent knowledge of the Defendant’s interest in the Mount Pritchard property, the Plaintiff stated that she could not recall “at any time” when the deceased spoke directly to the Defendant about the Mount Pritchard property: T33.03 – T33.05.

Furthermore, even though the original document is dated 28 May 2004, it is difficult to reject the Defendant’s evidence, on this topic. In this regard, I note that there was no evidence that the Plaintiff had made any request to the Department of Social Security to have any documents relating to the deceased produced. In this regard, subject to obtaining Probate, the Plaintiff was the legal personal representative of the deceased. The Defendant’s evidence in this regard does not seem inherently improbable.

If, as was put to the Defendant, the document had not been prepared on the date it bears, the request to the Department, and the production of any documents in any file that was produced, may have resolved the issue.

There were aspects of David’s evidence that I do not accept. The first is that “The Defendant and his family, on numerous occasions, told Mum, Dad and I to leave the house.” In cross-examination, David said that he could not remember any occasion when the Defendant had made such a threat and then said that "this conversation was between Dad when he spoke on the phone, Dad just told Mum and me that his nephew and family threatened to kick us out”: T49.31 – T49.46. Later, he seemed to accept that he had never heard the Defendant threaten the deceased or his family with eviction: T51.41 – T51.48.

There is simply no other evidence to support that assertion and it would be inconsistent, at least so far as the deceased was concerned, with what the Defendant, Jack and Anna, each acknowledged, which was the deceased’s right to remain in the Mount Pritchard property for the whole of his life.

Another aspect of David’s evidence that I find disturbing relates to the documents he said that he prepared with the deceased. There is a reference in the document said to have been written on 12 September 2012 to “I ask the Court to overcome this issue”. (It appears as well, in another place in this document.) Why those statements appear is not explicable in circumstances where David denied that Ms Latu had asked the deceased and David to have that document prepared: T46.15 – T46.39.

Whilst there is some evidence from Ms Stewart that she was present at a conversation in which Anna said that if the deceased kept pushing the issue of not being named on title, “I’ll kick you out”, there is no evidence that the Defendant was present. The deceased’s response to Anna is said to have been that she could not kick him out “I own this house. I paid for it.” (Each of these statements, on any view, is exaggerated.)

Interestingly, Ms Stewart, whilst somewhat hesitant about having been told by the deceased about any condition having been attached to the payment provided by the deceased, ultimately did seem to agree that her “understanding was that he was to reside there [the Mount Pritchard property] until the day he passed”: T57.09 – T57.12.

Ms Latu deposed that the deceased had said words to the effect that “my brother and I agreed that my wife and her son can stay in the house after I die, but I’m worried that after I die they will try and kick her out”. There is simply no evidence at all about any such agreement with Jack or, more importantly, with the Defendant. To the contrary, the evidence from the Plaintiff, and from David, referred to above is that there were numerous threats to have all of them removed from the Mount Pritchard property.

The Plaintiff gave evidence that it was Jack who had “pressured him to sign a document”. However, no suggestion was made to Jack in cross-examination, that he had done so. Indeed, there was not one question asked of Jack about any document that the deceased had signed. (David gave evidence of his conversation with the deceased to the effect that “they made me sign some papers and I don’t know what the papers said and I’m worried it is a big mistake” (my emphasis).

Much more consistent with contemporaneous documents and some other evidence called in the Plaintiff’s case, is the evidence of the Defendant who stated that the deceased, whilst visiting, had said that “he wanted a place to live and that his friend Pucar was selling his house. He suggested that if I am interested in buying the house he would assist me with the purchase by making a non-refundable gift of $83,000, in return for him to live in the property as long as he was without paying rent”.

My task in this case is to weigh the conflicting testimonial and documentary evidence. Overall, I prefer the evidence of the Defendant as to the events that occurred at or about the time of the purchase of the Mount Pritchard property. As stated earlier, the deceased, according to the evidence of the witnesses who stated what he had said to each, appeared to give a number of inconsistent accounts about matters that, one would think, would have been important to him.

As stated, also, there is no dispute that the deceased provided (to use a neutral word) some money to the Defendant, which money was used by him as part of the purchase price of the Mount Pritchard property. The amount contributed is in dispute, but on the Plaintiff’s case, it was $120,000, whilst on the Defendant’s case, it was $83,000.

On the Defendant’s case, the amount of money, whatever it was, was provided to him as a gift, upon the basis that the deceased would be able to live in the Mount Pritchard property for as long as he wished to do so. There is no dispute that the deceased did live there continuously from shortly after its purchase to the date of his death.

On the Plaintiff’s case, as framed, the amount of money, whatever it was, was provided by the deceased to the Defendant upon the basis that he would have a legal interest in the Mount Pritchard property – that is, that the deceased would be one of two registered proprietors and that the money would be used to acquire a joint interest in the Mount Pritchard property. Of course, that is not what was pleaded, which was simply that “the deceased understood that he would be a registered proprietor of the property as tenant in common with Jack Bilic” (Paragraph 12 of the Points of Claim) and that “the deceased understood that his registered interest in the Property would be approximately 70% and that Jack Bilic’s interest registered interest in the Property would be approximately 30%” (Paragraph 13 of the Points of Claim).

The difficulty with these assertions is that based upon the documents that I have read, the deceased could not have reasonably understood that his brother, Jack, was to be a registered proprietor of the Mount Pritchard property. There was never any suggestion that anyone of the family, other than the Defendant, was the borrower of $100,000 which would be used in order to assist in the purchase of the Mount Pritchard property.

In answer to the first issue, namely, whether the amount provided by the deceased to the Defendant in November 1999, and used by him to purchase the Mount Pritchard property, was $120,000, or $83,000, the Plaintiff has not established to my satisfaction that it was $120,000. It seems to me more probable, bearing in mind the contemporaneous documents, that the deceased provided the amount of $83,000.

In relation to the second issue, namely was the amount provided to the Defendant, whether $120,000 or $83,000, intended by the deceased to be a gift (the entitlement to live in the Mount Pritchard property is not an issue), I am satisfied that it was so intended. Again, the contemporaneous document signed by the deceased in November 1999 is relevant.

Even without the document, I am of the view that it is more probable that a gift to the Defendant was intended, particularly, as there was a condition to be attached, namely, that the deceased would be permitted to reside in the Mount Pritchard property for his life. In this regard, it is to be remembered that prior to the events that occurred, the deceased had been looking for a home in which he could be accommodated. At that time, he had no wife, or other close family, who was, or were, dependent upon him. Indeed, his closest family was Jack and his family.

It follows that I am satisfied that the Defendant has rebutted the presumption of a resulting trust.

Accordingly, the Court:

When the orders are entered, the title reference to the Mount Pritchard property and the caveat number will be inserted.