Sweeney v He

WARD P: In this matter, by a further amended notice of appeal dated 13 February 2023 (the fourth iteration of the notice of appeal), the filing of which was only the subject of leave belatedly sought at the outset of the hearing of the appeal itself, the appellant (Michael Sweeney) appeals from the dismissal by the primary judge of his claim that a property at Bomaderry (the Bomaderry Property) registered in the name of the second respondent (Yu Xiang Wang, known as Kevin) was held on constructive trust for himself and his former wife, the first respondent (Ying He), in equal shares (see Sweeney v He [2022] NSWSC 655). The first respondent is the mother of the second respondent, he being the son of a previous marriage.

The appellant’s constructive trust claim was put in a variety of ways: as a joint endeavour constructive trust; as a common intention constructive trust; and by invocation of the principles of proprietary estoppel. The primary judge found that each of those bases failed.

In summarising why the appellant had failed to establish his case, the primary judge noted the following six matters (see the primary judgment at [11]). First, that the conversations that supposedly formed the basis of the agreement between the parties attributed language to the first respondent (for whom English is a second language) that was not credible (a finding made with the benefit of observing the first respondent give her evidence). Second, that the agreement was never reduced to writing despite qualified solicitors allegedly being aware of the arrangement (and, on the appellant’s case, the solicitors did not ever suggest to him that it should be put in writing – something regarded by his Honour as “so unlikely” that he found there was no such arrangement). Third, that the costs of the Bomaderry Property borne by each party accorded with an arrangement in which the appellant resided as tenant only (he paying utilities and making some alterations but contributing nothing to the council rates and home insurance, which were exclusively borne by the second respondent). Fourth, that all of the costs associated with the purchase of the Bomaderry Property were paid by the second respondent and the appellant acted only as an intermediary in the purchase process. Fifth, that, while the first respondent’s fortnightly payments were sufficient to cover the mortgage repayments, these payments were for the purpose of rent (his Honour seeing this as an example of a common situation of owners applying rental payments to meet mortgage obligations). Sixth, that the respondents gave consistent accounts of the critical matters (particularly that the property was to be held in the second respondent’s name and for his benefit, the payment of rent and other contributions supposedly made by the appellant) whereas the appellant’s account suffered from a degree of implausibility and his Honour considered that inconsistencies with prior evidence he gave in Local Court proceedings about mortgage repayments (a “mistake” that the appellant says he acknowledged) reflected poorly on his credit.

On this appeal, the appellant seeks that the primary judgment and costs judgment (see Sweeney v He (No 2) [2022] NSWSC 854) be set aside and that the declarations and orders sought by him at first instance now be made. Alternatively, if the appellant succeeds only on his adequacy of reasons or procedural unfairness grounds (grounds 7-8 and 9, respectively), then the appellant seeks that the matter be remitted for a new trial before a different judge.

The background to the present dispute between the parties is set out in the primary judgment and can be summarised as follows.

The appellant and the first respondent met in China and were married there in 2003. In 2005, the first respondent immigrated with her son (the second respondent) to Australia. The family lived in a number of rental properties in the period from 2005 to 2014, during which time the first respondent claimed and received rental assistance and other benefits from Centrelink. The first respondent’s evidence in cross-examination, about which the appellant takes issue, was to the effect that the appellant had financial control and was responsible for the rental assistance claimed until their separation.

In mid to late 2013, the appellant and the first respondent inspected a number of properties for sale in Nowra. The second respondent cavils with the proposition by the appellant that he (the second respondent) had nothing to do with the house-hunting and says that there was also evidence that he (the second respondent) searched the internet and specified Nowra, near the train station, as his desired location. The second respondent says that it was common ground that the property was not intended to provide accommodation for the second respondent and that multiple properties were considered by all the parties prior to reaching an agreement about the subject property.

There was in evidence a copy of a pre-inspection report dated 19 July 2013 for a property at Park Road Nowra, which listed the appellant as the client and the second respondent as the intended purchaser of the property. The primary judge found that this was with a view to the second respondent purchasing a property in his name (see at [19]).

The appellant alleged that there was an oral agreement in June 2013 that the second respondent would make a loan application for the purpose of a property as the appellant could not obtain a loan due to his illness and age and the first respondent was on Centrelink benefits (see at [38]-[39]). The respondents denied this allegation and the primary judge did not accept that there was such an agreement (see at [36]; [46]).

The appellant also alleged that the second respondent began employment as a subcontractor to the appellant’s business (Zang Technologies), earning about $2,000 per month paid in cash (and that this was part of the joint endeavour to obtain the loan to purchase the Bomaderry Property). This was denied by the second respondent and the respondents say that there is no objective contemporaneous evidence to support this.

The appellant alleged that in July 2013 there was a further oral agreement to the effect that the second respondent would obtain a loan; the appellant would help with the procedure to purchase a property, along with paying utilities, mobile phones, food and improvements; and the first respondent would pay the mortgage (see at [40] of the primary judgment). This was again denied by the respondents, who claimed that at all times the agreement was that the first respondent would pay rent to the second respondent. (The appellant maintains that in February 2018 the second respondent contradicted this position in evidence that he gave in other proceedings at the NSW Civil and Administrative Tribunal (NCAT) – see below.)

On 9 September 2013, the second respondent obtained a home loan from Suncorp for $248,977.35. There seems to have been no evidence of any loan application in relation to the Suncorp loan. Those funds were used to fund the purchase of the Bomaderry Property for consideration in the sum of $272,000. There were also disputes at hearing about the contributions each party made to the purchase price and associated expenses.

The purchase of the Bomaderry Property completed on 31 October 2013. The second respondent was registered as the owner. The appellant had arranged for solicitors who had previously been his client to act on the conveyance. An invoice dated 31 October 2013 for their fees was addressed to the second respondent. The primary judge noted that there was a dispute as to whether the appellant or the second respondent paid the invoice (at [21]).

There was also a dispute as to a conversation that the appellant claimed to have taken place with the solicitor acting on the conveyance at the time the second respondent signed the contract for sale of the Bomaderry Property, to the effect that the property would be held in trust for “you guys” (being the appellant and the first respondent). The primary judge did not accept that the appellant ever had any such conversation (at [136]) pointing to the implausibility that solicitors retained for the purpose of providing advice on a property transfer would fail to recommend that any trust agreement should be recorded in writing.

In December 2013, the appellant and the first respondent moved into the Bomaderry Property. There was no written tenancy agreement at that time.

ANZ bank statements from the first respondent’s account showed regular transfers of $700 each fortnight between 2014 and 2017 to the second respondent’s Suncorp Everyday Options account. Those fortnightly transfers appear to have occurred the day after the first respondent received payments (of around that amount) from Centrelink. (The appellant says, but the first respondent appears to dispute, that the first respondent received a carer’s pension as the appellant’s carer. However, the primary judge seems to have accepted that the first respondent was in receipt of a carer’s pension, see at [152], when recording that he found the appellant’s characterisation of the carer’s pension as being for his benefit was a “troubling and inaccurate characterisation”.)

The fortnightly payments received from the first respondent were debited from the second respondent’s Suncorp Everyday Options account into his Suncorp Investment Loan account in repayment of the mortgage repayments. Suncorp bank account statements in the second respondent’s name showed that mortgage repayments were initially paid at a rate of $1,271.84 per month from that account. The primary judge noted that it was hotly contested between the parties as to whether the fortnightly payments by the first respondent to the second respondent represented rent or mortgage repayments (at [2]).

The appellant’s bank account records deductions for mobile phone bills, water and other utilities (which he maintains is consistent with the alleged July 2013 oral agreement). The appellant also tendered evidence as to work performed by him or expenses paid by him in relation to the Bomaderry Property (which was the subject of dispute between the parties). The primary judge made findings as to the appellant’s alleged contributions at [143], describing his financial contributions and the improvements to the property as minimal (see at [138]; [144]).

The Centrelink customer record for the first respondent showed that she claimed rental assistance from 7 August 2006 up until 4 February 2014 for various rental properties and that from 4 February 2014 (thus, shortly after the purchase of the Bomaderry Property), the first respondent ceased obtaining rental assistance from Centrelink.

In August 2015, the appellant had a liver transplant and in his submissions he identifies that, after this, his relationship with the first respondent began to deteriorate. The appellant says that, by then, he could not work, and he began claiming the disability support pension in September 2015. The appellant’s health apparently continued to deteriorate in April 2016.

Two tenancy agreements (the authenticity of which was disputed by the appellant) each dated 1 April 2016 were in evidence, both stating that the second respondent was the landlord and that the appellant and first respondent were the tenants. In cross-examination, the first respondent said that the appellant had forced her to create the document(s) (see T 158.18-24).

The Centrelink records relating to the first respondent indicate that rental assistance was claimed again from 1 April 2016 (this being the date of the disputed residential tenancy agreements).

The primary judge found that, around October 2016, the second respondent’s Suncorp bank statements began to show an increase in the mortgage repayments to $1,771 per month (see at [26]).

In May 2017, the relationship between the appellant and the first respondent broke down; and the first respondent moved into crisis accommodation (see at [2] of the primary judgment). The appellant remained in the Bomaderry Property at that stage.

The second respondent then brought an application against the appellant in NCAT to terminate the appellant’s tenancy of the Bomaderry Property. An eviction notice was served on 19 May 2017. The appellant denied that there was any lease agreement to be terminated. There was a hearing at NCAT on 4 July 2017 in the appellant’s absence and orders were made to terminate the appellant’s tenancy. The appellant sought unsuccessfully to set aside NCAT’s orders. A warrant for possession was issued on 19 August 2017 and the appellant subsequently vacated the Bomaderry Property in September 2017. The first respondent then resumed occupation of the premises.

The primary judge found that “in mid-2017”, after the appellant had vacated the Bomaderry Property and the first respondent became the sole occupant, the payments from the first respondent to the second respondent began to increase, varying in amount from $1,000 up to $2,000 per transfer (at [27]).

Further proceedings ensued between the parties, including an application by the second respondent against the appellant (to which the first respondent was joined also as a respondent) for the recovery of amounts claimed as unpaid rent for the period from May to September 2017. (In his appeal submissions, the second respondent points to the fact that in the NCAT proceedings the appellant had marked his documents as “tenant”.)

Tendered at the hearing before the primary judge was a transcript of proceedings in NCAT on 15 February 2018 relating to the claim for unpaid rent. The appellant places much weight on the following evidence given by the second respondent on that occasion:

The appellant commenced proceedings in the Supreme Court by statement of claim filed on 3 March 2020, claiming amongst other relief a declaration that the Bomaderry Property was held on trust for him in the proportion of 50% or such other amount that the Court might determine. The amended statement of claim filed on 14 August 2020 amended the declaratory relief claimed to a declaration that the second respondent held the property on constructive trust for the appellant and the first respondent in equal shares. The appellant sought an account to be taken as to amounts paid and received by the parties with respect to the property; an order as to payment by way of contribution following that account; and an order for a trustee for sale to be appointed to the property. In the alternative, the appellant sought an order that the respondents pay him the sum of $41,428.66 by way of restitution plus interest and costs on that amount.

As noted earlier, the appellant’s claim was put in various ways: a joint endeavour constructive trust, a common intention constructive trust or a constructive trust arising pursuant to proprietary estoppel. The appellant claimed that a verbal agreement had been made by the parties that the second respondent was to hold the property on trust for the appellant and the first respondent. Both respondents denied the claim and asserted that the Bomaderry Property was purchased as an investment for the second respondent and to assist his mother in having stable long term accommodation.

Having considered the evidence and made findings as to the credit of the witnesses (see at [34]-[36], [74], [93]), the primary judge found that the alleged conversations that were central to the appellant’s case had not occurred (at [129]).

As to the alleged common intention trust, the primary judge did not accept that any common intention existed between the parties that the second respondent would hold the Bomaderry Property on trust, noting that there was no documentary evidence of such an agreement; and saying that the oral and circumstantial evidence did not support such an agreement (at [132]). His Honour considered it implausible that the first respondent would have used the words attributed to her by the appellant; was not satisfied (as noted above) that the appellant had had the conversation with the solicitor on which he had relied; and accepted the second respondent’s explanation that the Bomaderry Property was his investment but that he had a concurrent motivation to provide comfortable secure accommodation for his mother (see [133]-[138]). His Honour concluded that the actual state of affairs that existed at the time of purchase of the Bomaderry Property was one in which the second respondent was intended to obtain absolute ownership of both the legal and beneficial interest (at [139]).

As to the alleged joint endeavour trust, his Honour concluded that the appellant’s contributions to the property were minimal (at [138]; [143]-[145]), observing that the appellant had a tendency to exaggerate his contributions, crediting to himself payments for which he was not responsible and tending to minimise the contributions of others (at [142]).

The primary judge concluded that the appellant had not made out any quantifiable entitlement to reimbursement for any financial contributions and that his other contributions in the form of labour were on a small scale and did not rise to a level that corroborated a joint intention that the appellant have any proprietary interest in the property (at [144]). His Honour also considered that even if the appellant were entitled to reimbursement for his contributions those debts could be offset against moneys that he owed the second respondent (at [146]).

The primary judge concluded that the purpose of the payments made by the first respondent to the second respondent was rent (at [154]), accepting the evidence of the respondents that the payments were rent and not mortgage repayments (at [156]). In this context, his Honour considered that the absence of any claim by the first respondent for rental assistance from Centrelink was easily explicable on the basis put forward by the second respondent (which his Honour expressly accepted) that rental assistance was not claimed because the tenancy agreement at the time was of an informal nature (at [155]), and rejected the appellant’s contention that the increase in fortnightly payments corresponded to an increase in the mortgage repayments in 2017 (accepting that evidence of additional purchases by the first respondent with moneys from the second respondent’s Suncorp bank account accorded with an understanding that the first respondent was paying savings into that account in addition to her rent (at [157])).

Thus, his Honour was not satisfied that a joint endeavour existed in the terms alleged by the appellant. Rather, the primary judge restated his earlier finding that the Bomaderry Property was purchased as an investment property for the second respondent with the added intention of providing secure rental accommodation for his mother (at [159]).

Finally, as to the claim based on proprietary estoppel, this failed on the basis of his Honour’s findings that: there was no agreement that the appellant was ever going to obtain an interest in the Bomaderry Property beyond that of a tenant; the contributions made by the appellant were not of so significant a nature that they would give rise to an estoppel; to the extent that works were undertaken with the second respondent’s knowledge or permission this did not indicate an understanding by the second respondent that the appellant expected to hold a proprietary interest (rather, in the absence of any prior representation or agreement, the works were largely within the realm of what a tenant might reasonably do – especially one whom the landlord had an interest in appeasing given their familial connection); and that the payments made by the first respondent were for the purpose of rent, not mortgage repayments, although they incidentally covered the mortgage repayments until those repayments increased (at [162]-[165]).

Of the grounds set out in his further amended notice of appeal, the appellant presses the following grounds:

Before turning to the particular appeal grounds pressed by the appellant, it may be noted that in the course of oral submissions, considerable emphasis was placed by the appellant on three pieces of evidence: first, the Centrelink record indicating that rental assistance was claimed by the first respondent for a number of rental properties up until the purchase of the Bomaderry Property and then ceased; second, the bank statements evidencing the $700 fortnightly payments made by the first respondent to the second respondent’s bank account and subsequent increase in those payments at around the time that mortgage repayments increased; and, third, the evidence given by the second respondent in the February 2018 NCAT proceedings (extracted above) to the effect that the first respondent helped him “to accommodate the mortgage payment[s]”. Those pieces of evidence were relied upon by the appellant as contemporaneous and objective evidence said to support his case (contrary to the conclusions reached by the primary judge). There is no challenge to the finding by his Honour that the alleged conversations on which the appellant relied did not occur.

Grounds 1 and 2 were addressed together in the appellant’s written submissions, the second ground (error in the findings that there was no common intention or joint endeavour that the appellant should hold a 50% interest in the Bomaderry Property) being predicated on the first (namely, the alleged error in finding that the payments made by the first respondent to the second respondent were in the nature of rent and not mortgage repayments). Grounds 4-6, though separate grounds, were largely covered in the appellant’s submissions in relation to grounds 1 and 2. Therefore, it is convenient to consider all of these grounds together.

The appellant emphasises that the appeal before this Court is by way of re-hearing and maintains his submissions at first instance as to the applicable principles giving rise to the claimed constructive trust. The appellant contends that if grounds 1-2 and 4 succeed then there should be a verdict in his favour.

The appellant maintains that the impugned findings (see the appeal grounds reproduced above) were glaringly improbable (invoking the principles articulated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) and, in his submissions in reply, referring to this as indicating that assessments of credibility based on observations and demeanour are the exception rather than the rule). In particular, the appellant submits that it is glaringly improbable (on the evidence as a whole) that the Bomaderry Property was purchased for the benefit of the second respondent only and that the arrangement up until April 2016 was one of “informal landlord and tenant”.

In this regard, the appellant says that: he and the first respondent “house hunted” and chose the property together, and that the second respondent did not choose the Bomaderry Property; the second respondent merely “rubber stamped” the purchase (in the sense that the decisions to purchase the property were made by him and the first respondent); he (the appellant) dealt with the lawyers on the purchase; the second respondent was a university student; and the second respondent never contributed any of his salary towards the mortgage, it was always “covered” by the payments made by the first respondent. It should be noted that the respondents challenge many of the factual assertions made by the appellant in his submissions (see at [4]-[5] of the first respondent’s submissions; [13]ff of the second respondent’s submissions) to which the appellant has responded in his submissions in reply at [2].

The appellant argues in his submissions in reply that it is very common in “family type relationships” that the parties do not record their dealings on records like trust deeds (citing Kirby P (as his Honour then was) in Baumgartner v Baumgartner (1985) 2 NSWLR 406 at 417 in this context).

As to the nature of the arrangement in relation to the occupation of the Bomaderry Property after its purchase in late 2013, the appellant argues that the fact that the first respondent ceased claiming rental assistance from Centrelink from the time of the purchase (without, he argues, any financial incentive to do so) is inconsistent with any allegation of an informal lease; and places weight on the regular payments made by the first respondent that had the effect of covering the mortgage (maintaining his assertion that the later increase in payments was linked to the increase in the mortgage repayments). As noted above, at the hearing the appellant disputed the authenticity of the April 2016 residential tenancy agreement but, in any event, the appellant points out that rental assistance recommenced in April 2016 and he points to the cessation of the $700 fortnightly payments after he was evicted from the Bomaderry Property.

As noted above, much weight is placed by the appellant on the evidence given by the second respondent in the February 2018 NCAT proceedings which the appellant says amounts to an admission that the payments in question were mortgage payments (not rent) (see as extracted above). The appellant says that, had the second respondent there been referring to an informal lease, then the “matter” before the tribunal in 2018 would have been “the same” as the matter in 2013 (rather than, as I understand the appellant’s submission here to be, the matter before the tribunal being, according to the second respondent’s evidence, about what happened during 2017). The appellant argues that “what happened” in 2013 must have been that the payments made by the first respondent were for the mortgage (and points to his evidence in that same hearing as to an oral agreement that the first respondent pay “the mortgage”).

The appellant submits that answers given by the respondents to questions concerning the core issues in the case were illogical and inconsistent when faced with cross-examination on contemporaneous evidence; and hence contends that the primary judge’s finding that the Bomaderry Property was purchased for the sole benefit of the second respondent is glaringly improbable.

In his submissions in reply, the appellant refers in this regard to what he maintains is glaringly improbable evidence given by the first respondent on the three so-called key pieces of evidence referred to above, and complains that there was no cross-examination of him about any allegation that he had falsely prepared documents in relation to the rental assistance claim or applied pressure on the first respondent to do so. The appellant also says that the first respondent’s evidence of the bank statements was inconsistent (in that she said that the extra amounts were, on the one hand, savings and, on the other hand, an attempt to support her son financially). In this regard, the appellant goes so far as to say that this evidence comprised inventions concocted well after the events in question both in her affidavit evidence and in cross-examination.

As to ground 5 of the grounds of appeal (which relates to the finding that the second respondent’s earlier evidence at the NCAT proceedings in 2018 “only stated that his mother’s rent had assisted him to pay the mortgage, not that his mother was making mortgage payments”), the appellant maintains that the primary judge here drew the wrong inference of fact and says that the inference that the primary judge drew was not available to the court. Indeed, the appellant says that the central point of his appeal is that the inferences drawn by his Honour in relation to this evidence were not available to him (see [47] of the appellant’s submissions) and that the only correct inference is that the payments made by the first respondent to the second respondent were for the mortgage, not for rent.

The appellant says that the unfairness occasioned to him by the fact that he was never cross-examined on the first respondent’s evidence that the appellant essentially did all the dealings with Centrelink, including the rental assistance payments (which he maintains was a recent invention by the first respondent), forms a central part of this appeal.

In his submissions in reply, the appellant maintains this contention (referring, as he did more than once in oral submissions, to the three pieces of evidence on which reliance is placed, namely, bank statements, the Centrelink records and what he contends were the admissions made by the second respondent in the NCAT proceedings).

Appeal ground 6 challenges the finding that the absence of any claim for rental assistance from Centrelink during the period 2014 to 2016 was “explicable on the basis put forward by the second respondent”, being that the tenancy agreement at the time was of an informal nature.

In this regard the appellant complains that the second respondent was not in a position to give such an explanation (and that such an explanation could only have come from the appellant or the first respondent) because the second respondent was not responsible for giving “those instructions” (i.e., claiming rental assistance) or “creating the document” (i.e., the documents lodged with Centrelink). Further, the appellant complains that the first respondent’s evidence (that the appellant was responsible for preparing the documents lodged with Centrelink) was at odds with the finding by his Honour (that the cessation of rental assistance was expressly on the basis put forward by the second respondent) and that the matters relating to this were not put to him in cross-examination.

The appellant relies on the Macquarie Dictionary definitions of “accommodate” noting that the word “assist” does not appear in those definitions (I pause here to note that the first of those definitions – “to do a kindness or a favour to; oblige” – would surely encompass the notion of assistance and, in any event, the use of dictionary definitions here seems to me to be quite unhelpful).

The appellant says that it must be inferred that the first respondent’s evidence that he directed her to obtain the Centrelink benefit (which was not in her affidavit) was a recent invention. In any event, the appellant says that the fact that the parties themselves did not obtain a Centrelink benefit appears illogical given their entitlement to claim one had there been any type of informal lease.

Insofar as the respondents maintain in their submissions that there was no obligation to cross-examine the appellant on particular issues, the appellant submits that this misstates the principle in Browne v Dunn (1893) 6 R 67 (Browne v Dunn), noting that in R v JAE [2021] QCA 287 (R v JAE), McMurdo JA stated to the effect that there is non-compliance with the said rule of practice where a party fails to challenge the evidence of a witness on some point but later makes assertions or calls evidence to show that the witness should not be believed. The appellant emphasises that he was never cross-examined on any allegation that he prepared or applied pressure to the first respondent to create the Centrelink records and that the allegation that there was never an informal lease was never put to the appellant as a reason for the contents of the document. The appellant further maintains that the second respondent could not have been responsible for creating the Centrelink records and says that the second respondent was thus not in a position to comment on any reason for its creation.

Although the respondents were separately represented on appeal, it is convenient to consider their submissions together.

The respondents submit that it was not glaringly improbable that the Bomaderry Property was purchased for the benefit of the second respondent only. In this regard, both respondents cavil with the submissions of the appellant (at [61] of his submissions) to the effect that the appellant and the first respondent “house hunted” and chose the property together and the second respondent did not choose the property; that the second respondent merely “rubber stamped” the purchase; that the appellant dealt with the lawyers on the purchase; and that the second respondent never contributed any of his salary to the mortgage and it was always “covered” by the payments made by the first respondent.

I have noted above the second respondent’s reference to evidence that he had searched for properties on the internet and had nominated Nowra as a desired location. As to the assertion that he “rubber stamped” the purchase, the second respondent points to the inaptness of that expression in relation to the purchase process. It is accepted that the appellant nominated the solicitor who acted on the purchase (said to be a long-term acquaintance of the appellant) but the second respondent points to his own evidence that he was busy with work at the time (and in any event says that it is clear that the solicitor invoiced the second respondent in relation to the retainer).

Most relevantly, given the emphasis placed by the appellant on the fortnightly payments made by the first respondent, the respondents say that the payments made by the first respondent did not have the effect of “fully covering the mortgage” because the payments varied from month to month from the commencement of the mortgage term; and that the bank statements do not support a consistently correlating change between the payments made and the amount of the mortgage repayments. The respondents contend that a common sense reading of the objective and contemporaneous material supports their evidence that the Bomaderry Property was purchased by the second respondent as an investment property in which his mother and the appellant (and later just his mother) could live and pay rent; and that the fact that he was a university student is irrelevant to whether he could purchase a property for another’s benefit.

As to the appellant’s glaring improbability submission, the first respondent says that there were no counter factual circumstances for consideration by the primary judge; that the evidence produced by the appellant relating to the NCAT proceedings and the Centrelink records did not advance the appellant’s case; nor did the bank statements. It is noted that there was specific evidence before the primary judge demonstrating how the second respondent purchased the Bomaderry Property (including evidence as to the initial contribution by him to the purchase); and that the second respondent gave evidence that the rent received assisted with each of the mortgage payments.

As to appeal ground 5, the first respondent submits that the primary judge was not required to draw an inference that the payments made by the first respondent to the second respondent were for the mortgage, and not rent, because the objective, contemporaneous evidence demonstrated that the property was purchased by the second respondent in his name; he was responsible for his own mortgage payments and there was no legally enforceable instrument or agreement demonstrating that the appellant and the first respondent were to have shared ownership in the Bomaderry Property.

As to the reliance placed by the appellant on the second respondent’s evidence in the NCAT proceedings as an admission which supports the appellant’s case, the respondents maintain that the expression “to accommodate” in this context is a reference to the first respondent’s payment of rent assisting the second respondent to pay the mortgage (the second respondent arguing that it is not uncommon that an investment property can be relied on to pay for itself). The second respondent says that his evidence in the NCAT proceedings is to be understood as being that the situation in 2013 was irrelevant to the 2017 claim for unpaid rent as the latter was made in reliance on a formal residential tenancy agreement.

As to the April 2016 residential tenancy documents, the respondents note that the second respondent’s evidence was that when the appellant realised that no rental assistance was being paid, he demanded that the second respondent enter into a formal residential tenancy agreement, as this paperwork was required by Centrelink to reinstate the payment. The primary judge noted at [114] that the appellant’s Centrelink statement dated 23 May 2017 showed that he was in receipt of rental assistance at that time.

The respondents thus maintain that the inference that the primary judge drew as to the payments made by the first respondent was both an available inference and correct.

As to appeal ground 6, the first respondent points to her evidence (in cross-examination) that the appellant was largely in control of her Centrelink forms and finances. It is submitted that a claim for rent assistance during the time periods specified in the pleading does not advance the appellant’s case in relation to ownership of the Bomaderry Property. Reference is made to the first respondent’s evidence that the rent assistance claims were made by the appellant and stopped when she left the property and went to a women’s refuge, the staff there taking her to Centrelink to stop the payments.

Finally, the first respondent says that her counsel was not required to cross-examine the appellant in relation to Centrelink rent assistance because the matter was not relevant to her defence. Further, it is said that there is no evidence to support the appellant’s submission (at [76], which cavils with the finding that the absence of a claim for rental assistance was explicable on the basis put forward by the second respondent that the tenancy agreement was of an informal nature at that time); there being no evidence that the tenancy agreement between the respondents, after the departure of the appellant, was anything other than of an informal nature (reference being made to [112] of the primary judgment).

At the outset, it may be noted that the circumstances in which findings based on credibility assessments may be found to be erroneous are well established (Fox v Percy at [28] per Gleeson CJ, Gummow and Kirby JJ; as further explained by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [19]-[21]). To the extent that the primary judge’s findings have been affected by impressions about the credibility and reliability of witnesses formed by his Honour having seen and heard them give their evidence, those findings may be overturned where there are incontrovertible facts or compelling inferences to the contrary, or where it is clear that the primary judge has palpably misused his advantage (see Fox v Percy at [130] per Callinan J, citing Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 at 479). It should also be noted that in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785, Nettle and Gordon JJ at [119] endorsed the observations by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, and noted that “at least where the trial judge’s decision might be affected by his or her impression about the credibility of the witness, whom the trial judge sees and hears but the appellate court does not, the appellate court must respect the attendant advantages of the trial judge”.

That said, the challenge as to the finding that the payments by the first respondent to the second respondent were properly to be characterised as rent, not mortgage payments (ground 1), which the appellant identifies as the central issue on the appeal, strictly speaking is a challenge as to the legal effect of the arrangements between the parties (not a credibility finding per se though the factual findings on which it was based may have been informed by the credit findings made in respect of the witnesses).

Each of grounds 1 and 4 (and ground 2 since it is predicated on ground 1) invokes Fox v Percy principles, expressed by reference to findings being said to be glaringly improbable. Ground 5 is a complaint that a particular inference drawn by the primary judge was wrongly drawn and not available to him. Ground 6 impugns a particular finding including on the basis that the matters referred to in ground 6(c) were not put to the appellant in cross-examination. I deal with them in turn.

As to grounds 1 and 4, the appellant places weight on the three key pieces of evidence referred to above (those being the matters referred to in grounds 1(a)-(c)), namely, the so-called NCAT admissions; the Centrelink records showing that rental assistance was not claimed from shortly after the purchase of the Bomaderry Property; and the Suncorp bank statements.

As to the evidence given in the February 2018 NCAT proceedings, reliance on dictionary definitions as to the meaning of “accommodate” does not assist the appellant (no matter how proficient in English and educated the second respondent is). That is because the answer that was given can readily be understood as a statement that the payments made by the first respondent assisted the second respondent to meet (or cover) the mortgage repayments he was obliged to make and for which he had the legal responsibility.

As to the Centrelink records, it does not seem to me that there is only one available inference that can be drawn from the fact that the claims for rental assistance ceased shortly after the purchase of the property (irrespective of who may have been responsible for the claiming of those payments) since the objective fact is that at that stage there was no written rental agreement in existence. The fact that rental assistance was not claimed does not make it more or less likely that the payments made by the first respondent to the second respondent had the character of mortgage payments.

As to the Suncorp bank statements relied upon at the hearing by the appellant, they do no more than establish that the fortnightly payments were made (and that they corresponded roughly with the amount payable by way of mortgage repayments – though, as the respondents note, the latter were variable and the former was in a constant amount); and that they increased at a later stage (though his Honour did not accept that this corresponded to the increase in mortgage repayments).

As to the other matters raised by ground 1, (d) is no more than a submission (and ignores the contribution that was found to be made by the second respondent to the purchase price through gift or assistance from Chinese family members or savings); (e) is equally consistent with the second respondent being interested in acquiring an investment property in which his mother and the appellant could live but retaining the legal ownership of the property and the second respondent’s evidence was that he left the process to the appellant as he (the second respondent) was busy at the time; (f) takes the matter nowhere as it is consistent with the second respondent treating this as an investment property to be funded through rental or assistance from others; and (g) calls in aid an oral agreement (dependent on the appellant’s evidence) that his Honour found (for cogent reasons) was not established.

Nothing in those matters, taken individually or collectively, makes glaringly improbable the finding that the first respondent’s payments were for rent, not mortgage repayments; nor is such a finding inconsistent with incontrovertible facts. The difficulty that the appellant faces is that the factual matters on which he relies either were not established to his Honour’s satisfaction on the balance of probabilities or are consistent with the respondents’ evidence as to what occurred. The fact that the matters the appellant relies upon, if accepted, would be consistent with an agreement of the kind alleged does not make them probative of such an agreement.

Ground 1 (and hence ground 2 also) is not made good.

As to ground 4, there is nothing in the circumstances itemised at 4(a)-(c) that to my mind makes it glaringly improbable that the Bomaderry Property was purchased for the benefit only of the second respondent. Again, the difficulty here is that the scenario put forward on the appellant’s case is by no means the only plausible explanation for the title to the Bomaderry Property being intended to be in the second respondent’s name for his sole benefit.

As to ground 5, as discussed already, the so-called NCAT admissions do not support the appellant’s proposition that there was no available inference open to his Honour that the payments made by the first respondent were in the nature of rent.

Finally, as to ground 6, insofar as the complaint is that the second respondent was not in a position to give evidence as to the purpose of the claimed rental assistance (because he was not responsible for making those claims), this seems to me to involve a misreading of his Honour’s reasons. His Honour was not treating the second respondent as being in a position to give direct evidence of the purpose of the Centrelink payments claimed by someone else; rather, I read this as being that (the second respondent having been asked in cross-examination as to the claimed assistance and having proffered an explanation that seemed to his Honour to be logical), his Honour was in effect treating this as a submission and stating his own view that the informal nature of the tenancy arrangements was a logical explanation for the fact that rental assistance was not claimed after the property was purchased (until the claims were reinstated in April 2016 at the time of the disputed formal residential tenancy agreements); and hence the reliance placed on the Centrelink records by the appellant was misplaced in that it did not permit only of a conclusion that the payments made by the first respondent were mortgage payments. That is so, notwithstanding that the first respondent’s payments were used by the second respondent to cover his mortgage payments. As to the appellant’s complaint that this finding was made in circumstances where he was not cross-examined on any allegation that he prepared or applied pressure to the first respondent to create the Centrelink records, and that the allegation that there was an informal lease was never put to the appellant as a reason for the contents of the document (citing the rule in Browne v Dunn as stated by McMurdo JA in R v JAE at [45] as “a general rule of practice by which a cross-examiner should put to an opponent’s witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course”).

The appellant further cites Mkari v Meza [2005] NSWCA 136. In that case, there were some topics at trial, upon which there was no cross-examination, where the evidence of the appellant (Mkari) was rejected. Moreover, in relation to the appellant’s witnesses, the respondent’s counsel cross-examined them, generally probing, but tacitly accepting much of their evidence, without challenging unfavourable responses. Brownie AJA (with whom Handley and McColl JJA agreed) said as to the rule in Browne v Dunn at [71]-[73]:

In Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937, Kiefel CJ, Keane and Gleeson JJ (with whom Gageler J agreed) made the following observations about the rule in Browne v Dunn at [26]-[27]:

In Scott v Scott [2022] NSWCA 182 (Scott), Meagher JA said at [64]-[66] (with whom Kirk JA and I agreed):

The proposition articulated by Hunt J was referred to in White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806; (1998) 156 ALR 169 by Goldberg J, who said at 217-8:

Similarly, in Yebdoo v Holmewood [2021] NSWCA 119, Macfarlan JA (with whom Gleeson JA agreed on this issue) said at [57]:

In Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; [2007] NSWCA 75 (cited with approval in Day v SAS Trustee Corporation [2021] NSWCA 71), Spigelman CJ said at [61]:

In accordance with these principles, and as Meagher JA noted in Scott, this ground directs attention not only to the matters put to the appellant in cross-examination but also to the issues as they were raised by pleadings and in the parties’ submissions. It is also relevant to consider the respects in which the appellant’s credibility and reliability as a witness was called into question and how those matters were dealt with by findings of the primary judge which are challenged as not open to be made.

As to whether it ought to have been put to the appellant in cross-examination that he prepared the Centrelink applications, during the cross-examination of the appellant by counsel for the first respondent, it was put to the appellant that he controlled the first respondent’s finances during their relationship. For example, at T 34.34-50:

Similarly, at T 45.09-16:

True it is that the appellant was not cross-examined as to his responsibility for the Centrelink records specifically. Nevertheless, the appellant was cross-examined as to his control over the first respondent’s “financial affairs”, a broad term which arguably encompasses financial aid, such as rent assistance applications to Centrelink. Accordingly, the appellant and his counsel could have been under no misapprehension as to the direction which was taken in cross-examination by the first respondent at trial. The assertion that the appellant rather than the first respondent prepared any Centrelink documentation was entirely consistent with this line of cross-examination and subsumed within it.

In any event, the primary judge did not make a finding accepting that the appellant in fact controlled the first respondent’s financial affairs or was responsible for the Centrelink records. Nor did the first respondent’s evidence as to the control of the appellant shape or colour the primary judge’s impugned finding at [155]. Thus, this submission does not assist the appellant in establishing appellable error.

As to whether it ought to have been put to the appellant in cross-examination that there was an informal lease, the appellant had notice of the respondents’ contention that there was an informal lease before giving evidence on the matter at issue. At [14] of the respondents’ joint submissions filed on 19 November 2021 prior to the commencement of the trial, the following defence was outlined in respect of the first respondent:

Similarly, at [18] it was submitted on behalf of the second respondent:

The respondents’ submissions further noted at [15] that a written tenancy agreement was only entered into and signed by the parties in April 2016.

Although the respondents did not put to the appellant in cross-examination that the informality of the arrangement was the reason that no Centrelink rental assistance applications were made between December 2013 and 2016, the point upon which the appellant was impeached (being his interpretation of the Centrelink records as demonstrating that no rent was in fact paid between 2013 and 2016) was “so manifest” that it was not necessary to waste time in putting questions to the appellant upon it. It was open to the primary judge to accept the respondents’ explanation as to why rental assistance was not claimed by Centrelink because notice of the respondents’ case as to the informal tenancy agreement was distinctly and unmistakably given to the appellant.

It was also made clear to the appellant and his counsel that the appellant’s credibility and reliability was in issue. The counsel for the first respondent drew attention to the issue of credibility in her opening submissions at first instance at T 14.16-23:

Ground 6 is not made good.

The complaint made by these grounds (as affirmed in the appellant’s submissions in reply) is that the primary judge did not adequately provide reasons for the finding that the respondents were reliable and consistent witnesses. Complaint is made that his Honour addressed the inconsistencies in the appellant’s evidence but not the respondents’ evidence in the same way. In particular, complaint is made that there was no reference in the primary judge’s reasons as to the numerous credit issues raised by the appellant’s counsel in relation to the respondents’ evidence. In the grounds of appeal, there does not appear to be a challenge to the credit findings themselves (although the submissions make numerous complaints as to inconsistencies and alleged illogical evidence with reference to the respondents’ evidence); simply as to the adequacy of the reasons.

The appellant accepts that reasons need not necessarily be lengthy or elaborate but says that in the present case it is impossible for him to understand why the respondents were held to be reliable witnesses given the numerous issues with their evidence, the inconsistencies exposed and the submissions made on his behalf. The appellant submits that the inadequacy of reasons of the primary judge was such as to lead to a miscarriage of justice (citing Pettitt v Dunkley [1971] NSWLR 376) and argues that, although it was open for his Honour to find against the appellant on credit, “the proper procedure should have been followed”, so that he could understand that his reasons had been received and considered by the Court.

As to the first respondent, the appellant maintains that the credit issues and inconsistencies with respect to the first respondent’s evidence were substantial; that her evidence was unreliable, unsatisfactory, inconsistent and illogical. The appellant submitted to the primary judge that the first respondent was evasive and had a selective memory when her answers did not suit her case.

The appellant says that the first respondent attempted to minimise or downplay any suggestion of conversations alleged to have been had with the appellant or second respondent prior to the purchase of the Bomaderry Property and that this was at odds with the objective evidence which the appellant says disclosed a plan which would have required forethought by all three parties in its execution.

The appellant points to the following inconsistencies or contradictions in the first respondent’s evidence.

First, that the first respondent alleged that she never talked to her son about the Bomaderry Property at all then admitted that she talked to her son about building a shed on the premises; that she first alleged that her son searched for a property, then when taken to her affidavit said that she and the appellant started looking at properties in Nowra; and that she gave evidence that she spoke to her son about the Bomaderry Property only after her son bought it but admitted that there was a lot of organisation to do to purchase the property. The appellant says that it is not believable that the first respondent only spoke to the second respondent about the Bomaderry Property after it was purchased, when it is said that she also admitted that she chose the property herself and the second respondent was just a “rubber stamp”. (The respondents cavil with the proposition that the first respondent stated that the second respondent was just a “rubber stamp”.)

Second, reference is made to the first respondent’s evidence as to financial matters. The appellant says that the first respondent deposed in her affidavit evidence that she started getting Centrelink payments on 7 February 2006 and for the next ten years the appellant kept her bankcard and controlled her finances; and that in cross-examination she alleged she did not have access to any money as at February 2006 and said that the appellant just kept her ANZ bankcard. The appellant points out that the first respondent then said that it was incorrect that from 7 February 2006 and onwards the appellant kept her bankcard. As to the allegation that the appellant was transferring the $700 payments from her ANZ account, it is noted that at [21] of her affidavit the first respondent stated that “Michael and I moved into the home in December 2013 and each fortnight I transferred $700 into Kevin’s bank account for rent”, and that the first respondent then alleged that the appellant had set up an automatic payment (having said nothing of this automated arrangement in her affidavit). The appellant says that the evidence given by the first respondent as to why that was not mentioned in her affidavit (“because is [the appellant] who told me that”) is illogical.

The appellant also refers to the first respondent’s evidence that the whole time she was married to the appellant it was not possible to go to the bank and get money out; and that the only bank account that she had at the time of 5 April 2017 was the ANZ account; and that when it was put to her that the moneys flowing into the second respondent’s bank account did not appear to be coming into the ANZ account, the first respondent then admitted that she opened another bank account in May. The appellant says that the first respondent’s evidence about not having access to money is “questionable” (and complains that there was no reference to this in his Honour’s reasons).

The appellant says that the first respondent’s evidence with respect to the appellant’s alleged financial control was also “questionable”. The appellant says that the first respondent had no explanation as to why she did not keep the “old financial arrangement” after May 2017 of transferring $700 per fortnight in a separate transaction to her son’s account; and that the first respondent’s evidence that she needed to purchase furniture and cars and spend legal fees does not explain the need for a change in the financial arrangement of transferring a separate transaction of $700 per fortnight (noting that her evidence was that this was an automated arrangement). It is noted that the first respondent could only say she did not think much of it at the time. Complaint is made that none of this was mentioned in the reasons.

Reference is also made in this context to the first respondent’s evidence that the extra $1,000 payments made to the second respondent were for “savings”, whereas in her affidavit the first respondent had stated the amounts were to support the second respondent financially.

As to the alleged residential tenancy agreement allegedly signed in April 2016, the appellant points out that the first respondent had no explanation for there appearing to be two separate residential tenancy agreements signed on separate occasions; and that the first respondent (when it was suggested to her that she created the documents without the appellant being involved in creating the document) said that she was forced to do it by the appellant. It is said that this evidence is entirely inconsistent with the objective evidence that the respondents relied on both residential tenancy agreements at the NCAT proceedings and made submissions that they were validly created. The appellant says that the validity of the NCAT leases was a central issue in these proceedings and complains that there was no reference to these matters in the primary judge’s reasons.

Complaint is made in this context that the first respondent in cross-examination “suddenly remembered” that the residential tenancy document had been signed at the Bomaderry Post Office, whereas previously the response from the respondents’ solicitor had been that the respondents did not recall where the letter was signed. It is said that this “completely deprived” the appellant of the opportunity to investigate the circumstances in which the document was signed. The appellant characterises the first respondent’s answer to the suggestion that she could not remember matters that she could remember as non-responsive and says that the respondents’ allegations of a valid residential tenancy agreement after April 2016 were questionable. Complaint is made that these matters raised by the appellant in submissions were not addressed by his Honour. In his submissions in reply, the appellant maintains that there was a deliberate strategy designed to prevent him from attempting to locate the witness on the document (“R Zinke”). In any event, the appellant says that if there is doubt over the validity of the written residential tenancy agreement it is not necessary to determine the issue as the question for the Court to determine was the agreement in 2013, not April 2016.

Thus, it is submitted that the first respondent’s evidence was wholly unsatisfactory; and that none of the appellant’s submissions was addressed in his Honour’s reasons, leading to error. The appellant submits that his Honour palpably misused his advantage with respect to the credibility findings with respect to the first respondent.

As to the reference by the respondents to the difficulties experienced by the first respondent giving her evidence, the appellant notes that: the first respondent had the assistance of the interpreter during the whole of her evidence; the second respondent’s solicitor indicated that instructions had been taken in English; and the primary judge indicated (at T 92.13-26) that if the first respondent did not understand the question it would be interpreted for her or if she did not feel capable of answering in English then she could give evidence in whichever language (being either Cantonese or Mandarin) with which she was comfortable. The appellant then makes the somewhat extraordinary submission that in those circumstances the first respondent “must take responsibility of the contents of her evidence and for the contents of the transcript”. As to the example given by the second respondent as to the difficulties the first respondent experienced, the appellant says that the questions were simple questions designed purely to test whether the first respondent had a requisite command of English in order to give cogent evidence and that this occupied a very short time during the hearing.

Similarly, the appellant complains that submissions made by him as to the second respondent’s credit were not addressed in the primary judge’s reasons. The appellant raises the following matters in that context.

First, the appellant points to the second respondent’s assertion that $7,000 paid on 14 October 2013 into his Suncorp bank account came from his own savings which was contributed towards the Bomaderry Property but that the second respondent did not mention that sum in his affidavit as a contribution to the property (and it is noted that the first respondent alleged that all the money initially contributed to the Bomaderry Property was gift money). Again, the complaint is that this evidence was never included in the second respondent’s affidavit and that these matters were never put to the appellant in cross-examination; and it is submitted that it must be inferred that the second respondent never instructed his lawyers “in this matter” (i.e., as to this evidence) and that such evidence was a recent invention.

Second, the appellant says that the second respondent’s evidence in cross-examination that the $7,000 was contributed towards the monthly repayment of the mortgage was inconsistent with the evidence he later gave that none of the moneys that he received from his salary actually went towards paying off any loan repayments for a three-year period from 2013 to 2016, apart from a first payment on 4 December 2013 of $700.

Third, the appellant says that the second respondent exaggerated the amount of money he earned as a part time private tutor in his evidence in cross-examination, not having mentioned in his affidavit that he had any job in 2013 as a private tutor. (The appellant sees an inconsistency here with the evidence from the first respondent that the second respondent was a part time private tutor in 2013.) The appellant says that the second respondent’s evidence of his timetable in 2013 adds up to between 60-70 hours per week (taking into account university contact hours, self-study and work as a private tutor) and that on that evidence the second respondent would have been earning around $50,000 per annum (based on 10-20 hours per week at $50 per hour). It is noted that no tax documentation was adduced by the second respondent, nor any letters of offer or any bank documentation showing that he obtained a loan on this basis.

The appellant also points to the second respondent’s evidence in cross-examination that the only job he had at the time in 2014 was the job he had obtained at the Australian National University in December 2014 but then that he also had a job as a private tutor in 2014-2015. The appellant says that the evidence given by the second respondent as to the hours he worked at the university (30-40 hours per week), which was not mentioned in his affidavit, is implausible, noting that the second respondent also gave evidence that in the period 3 December 2014 to March 2015 he worked as a private maths tutor for around 10-20 hours per week (and was still at university at the time) and that the second respondent’s bank statements showed receipt of only $200 per fortnight from the university (which was in addition to the $500 per week said to be paid for accommodation at college which was covered by the university).

Thus, the appellant submits that it is glaringly improbable that the second respondent was the sole property investor earning $216 per fortnight after clearing accommodation. In this context, the appellant again refers to the evidence of the second respondent in the NCAT proceedings that his mother helped him to “accommodate” the mortgage payment(s).

The appellant complains that there is no reasoning process in the judgment as to how the second respondent obtained the loan without assistance of the appellant. The appellant says that it is illogical that, if the second respondent’s godmother gave the second respondent $5,000 to spend at his discretion, it would have been spent on the Bomaderry Property for a shed to be used in the appellant’s business; that it is far more likely that this money would have been spent on something for the second respondent; and that the second respondent had no logical answer to this.

As to the payment of the solicitors’ fees, the appellant says that there was no logical reason given why they should have been reimbursed in cash by the second respondent when it would have just been easier to transfer the money to the appellant.

Finally, it is noted that there was no mention in the second respondent’s affidavit (despite evidence of other contributions made to the Bomaderry Property) of the second amount of $5,000 transferred on 18 September 2013 into the second respondent’s Westpac bank account which the second respondent said in cross-examination was a payment for home loan banking related fees.

The appellant complains that it was submitted to the primary judge that the evidence of the second respondent was wholly unreliable but that none of the matters relevant to the credit of the second respondent was addressed in the primary judge’s reasons.

In his submissions in reply, the appellant argues that the issue of the second respondent’s job as a private tutor is relevant as the appellant gave evidence that the second respondent obtained the loan to purchase the property due to him being paid $2,000 per month in cash from the appellant’s business (evidence relied on by the appellant as evidence of a joint venture). Complaint is made that the second respondent offered no alternative explanation as to how he got the loan and again it is said that he sought to exaggerate his earnings. The appellant says that none of these matters was put to the appellant in cross-examination and that, given the importance of this issue to the facts in dispute, it was incumbent on the primary judge to give reasons as to why the appellant’s evidence was to be accepted or rejected (and that, as he was not cross-examined on this, the primary judge was bound to accept the evidence of the appellant).

The appellant maintains that it was glaringly improbable that the second respondent (the submissions say first respondent but this must be a typographical error) had no money of his own, had no explanation as to how he got the loan, allowed the appellant significantly to modify the property to the appellant’s needs without requiring any permission, and then alleged that he purchased the property for his sole benefit.

As to the criticism made of the first respondent’s evidence (ground 7), the respondents maintain that there is no evidence that the first respondent gave inconsistent illogical evidence or was evasive in questioning when the answers did not suit her case; nor that she had a selective memory. It is noted that the cross-examination of the first respondent was lengthy and the respondents point to difficulties that the first respondent had in understanding the questions put to her in English and in answering them in English (by way of example, reference being made to questioning as to the bathroom vanity at T 96.24-27). It is said that the first respondent was visibly confused at times (a submission that this Court cannot test, not having seen the witness give her evidence).

The respondents submit that the first respondent’s evidence was consistent with the available objective contemporaneous evidence, her evidence being that the second respondent bought the Bomaderry Property for himself as an investment.

Insofar as the appellant argues that the first respondent was involved with mortgage payments after the departure of the appellant from the Bomaderry Property in May 2017, the respondents refer to an aide memoire provided to the primary judge (“Summary of Payments between the First and Second Defendants from 30/10/17 to 28/2/20”).. The respondents also refer to the first respondent’s evidence (about which it should be noted that the appellant complains that this was not put to him in cross-examination) that the appellant controlled her finances prior to their separation (see T 118.43); and her evidence that, after their separation, she needed to purchase furniture, a car and spend money on legal fees and that the second respondent assisted her with all of these purchases when she moved back to the Bomaderry Property from the women’s refuge in 2017 (see T 132.48-133.22). They submit that none of this evidence is inconsistent with the objective, contemporaneous evidence.

As to the criticisms made by the appellant of the second respondent’s evidence (ground 8), the respondents characterise the second respondent’s evidence as being considered (not exaggerated). They refer to the specificity of the second respondent’s evidence (referring to T 189.44ff; and the primary judgment at [93]-[125]) and say that there was no obligation on the second respondent to provide evidence of the “private tutor job” by way of affidavit evidence rather than at hearing (referring to T 193.29-35) and that the fact that certain evidence was not included in his affidavit does not make him an unreliable witness.

The respondents maintain that it is not glaringly improbable that the second respondent was the sole property investor, pointing to his evidence (as supported by the bank statements produced to court) that he purchased the investment property with the significant assistance of family members both in China and Australia (see at [103]), and with the assistance of his income which increased over time given his academic expertise. It is noted that the primary judge addressed the second respondent’s financial situation in 2013 (see at [100]-[104]). The first respondent says that the Schedule of Transactions (see at T 63.41ff) and aide memoire documents (referring to T 63.41-40; 212.01-10) were accepted by the appellant at the hearing and that he was cross-examined in relation to these documents, as a result of which the first respondent says that the true nature of the financial relationship between the parties was disclosed.

Further, the first respondent says that the appellant was “caught out” under cross-examination when he was questioned in relation to the statement at [23] of his affidavit that he “understood that the money was to go through the bank accounts of the second defendant so he would ‘look good’ and have a better chance of obtaining the loan”, although the date of the transaction in question was almost a month after the mortgage had been approved. It is noted that the appellant still would not concede that the second respondent did not need his help to obtain a mortgage (see T 46.37-45).

As to the criticism of the adequacy of his Honour’s reasons for the credibility findings, it is noted that the primary judge assessed the evidence of each witness in relation to: the purchase of the Bomaderry Property; the payments made by the first respondent (said to be rent by the respondents and mortgage by the appellant); and the improvements to the Bomaderry Property, in the context of which the credit findings were made; and then provided further consideration as to the three bases upon which the appellant argued that a constructive trust had arisen.

As made clear in the submissions in reply, these two grounds are complaints as to the adequacy of the reasons given by the primary judge for the credibility findings in respect of the two respondents.

In Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 at [102], this Court has recently considered the duty of judicial officers to give reason for their decisions, that being a manifestation of the principle that not only must justice be done, but it must also be seen to be done. It is not necessary here to restate in any detail what was there said.

Suffice to note that in the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but, rather, the minimum acceptable standard; and that the standard is not one of perfection.

The appellant here accepts, as I understand his submissions, that the duty to give reasons does not require an elaborate or lengthy exercise. His complaint, however, is that there was not an adequate description of the process of reasoning in order to expose the primary judge’s reasons for making the credit findings in relation to the respective respondents so as to permit him to see that his submissions were received and understood. (This complaint follows the reasoning in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA (as his Honour then was) at 279, it being there said that the purpose for the giving of adequate reasons is to enable the parties to see the extent to which their arguments have been understood and accepted, as well as the basis for the relevant decision.)

More recently, in Alexandria Landfill Pty Ltd v Transport for New South Wales (2020) 103 NSWLR 479; [2020] NSWCA 165 at [29], this Court said that:

In my opinion, the complaint as to the adequacy of the reasons given for the credibility findings in respect of the respondents must fail. I consider that the reasons were sufficient to meet the standard required for judicial reasons. True it is that the primary judge did not separately set out the appellant’s submissions as to particular aspects of the respondents’ evidence. However, his Honour did address the basis on which he accepted the respondents’ evidence on the critical issues (in particular, the alleged conversations as to the acquisition of the property and the basis on which the appellant contended that the payments made by the first respondent should be characterised as mortgage repayments not rent). As to the latter, it can be seen that this was on the basis of the objective contemporaneous evidence (that title to the property was in the second respondent’s name and he had assumed responsibility for the mortgage and expenses related to his ownership of the property; and that this was supported by the bank statements in evidence).

While his Honour’s stated reason for accepting the first respondent as a witness of truth (at [74]) seems to have been based on the consistency of her evidence that she never intended to have any interest in the property because it belonged to her son (see also at [79]), his Honour went on to consider the matters put to the first respondent in cross-examination, including the proposition denied by the first respondent that what she was actually doing was attempting to divest her assets in anticipation of family law proceedings (a proposition the relevance of which his Honour clearly considered to be moot – see at [86]), and inconsistencies as to aspects of her evidence (see for example at [83]; [157]). His Honour also noted aspects of the evidence (such as the second respondent’s bank statements from mid to late 2017 that he considered supported the first respondent’s version of events (at [85])).

As to the second respondent, the primary judge described him as a careful and precise witness who gave deference to documentary evidence wherever possible and who appeared to be doing his best to give truthful evidence (see at [93]), observations that the primary judge was well placed to make, having seen the second respondent in the witness box.

His Honour’s conclusions as to matters such as the disputed conversations did not rest on demeanour findings but on matters such as the implausibility of the statements in English attributed to the first respondent by the appellant and inherent unlikelihood of an experienced solicitor not giving advice to document a trust transaction if that was indeed the purpose of the transaction (see [11]).

To my mind, it was sufficient for the primary judge to provide, as he did, cogent reasons for rejecting the appellant’s evidence as to the disputed conversations and for rejecting the contention that the moneys paid by the first respondent were mortgage repayments (having noted and addressed the key pieces of evidence relied upon by the appellant in that regard) to dispose of the joint endeavour and common intention constructive trust claims.

I consider that his Honour also adequately addressed the proprietary estoppel claim based on the alleged improvements and contributions to the property. The complaint by the appellant is that the description by his Honour of these contributions as de minimis was not adequate. I do not accept this. For example, to complain of inadequate reasons for his Honour’s conclusion as to the discrepancy about the purpose of the additional funds transferred to the second respondent after 2017 (i.e., whether they were for the purpose of assisting the second respondent or were for her own savings) ignores that his Honour held (at [157]); that the transactions recorded in the aide memoire to which he was there referring (supported by receipts for the purposes) showed that the purchases “fell comfortably within the range of additional funds” that had been transferred and that there was not a sufficient discrepancy in the use of the funds to call into question the first respondent’s understanding that she was paying funds into the second respondent’s Suncorp bank account in addition to her rent.

The litany of complaints by the appellant as to an inability to see that the primary judge had received and understood his submissions has the hallmarks of a formulaic complaint that there was appellable error in relation to each submission not separately recorded and addressed by the primary judge. His Honour made clear the basis on which he rejected the appellant’s claim and it was not necessary in my opinion for his Honour to give a line by line account of the submissions made by the appellant in order to do so (though to pre-empt a similar such complaint I have set those out in some detail in these reasons).

I note that, in Baira v RHG Mortgage Corporation Ltd [2012] NSWCA 387; (2012) 297 ALR 416, at [173]-[175] this Court noted that it is insufficient to demonstrate (on appellate review of factual findings) that a primary judge has failed to deal with some evidence. The evidence in question must have the “quality which seriously calls into question the integrity of a finding of fact” (see also Lemongrove Services Pty Ltd v Rilroll Pty Ltd [2019] NSWCA 174 at [32] per Payne JA). A similar point may be made here. The critical issue (dispositive of the appellant’s claim) turned on the alleged conversations on which the appellant relied. It was the appellant’s credibility that was in issue here; his Honour gave comprehensive reasons for the findings as to those conversations.

These grounds of appeal are not made good.

The final appeal ground appears to be a complaint as to denial of procedural fairness (although in submissions the appellant goes so far as to suggest that the intervention by the primary judge in the conduct of the hearing created an apprehension of bias on the part of the primary judge).

The appellant cites the well-known passage of Lord Denning in Jones v National Coal Board [1957] 2 QB 55 (National Coal Board) at 64 as to when a judge “drops the mantle of a judge and assumes the robe of an advocate”; and refers to Galea v Galea (1990) 19 NSWLR 263 (Galea).

Although in his written submissions, the appellant invited this Court to look at the whole of the way the trial was conducted (in context of the numerous credibility issues raised by the appellant, which he complains were not referred to in the primary judge’s reasons), in oral submissions the appellant could point only to one passage in the course of the first respondent’s cross-examination about which complaint was made, that being as follows (in which the questions were asked by his Honour):

In his submissions in reply, the appellant expands on this ground of appeal, invoking the principle of open justice and asserting that the intervention came at a crucial time in the cross-examination (where counsel was seeking to put to the first respondent that she had stopped the $700 payments in May 2017 because she had finally ousted the appellant from the Bomaderry Property and saw herself as the owner for all intents and purposes).

The appellant says that given the importance of these issues to the main question in the case (which he characterises as being whether the payments made by the first respondent were mortgage or rent), there has been a miscarriage of justice (by reason of the intervention) such that the judgment should be set aside.

The respondents maintain that the transcripts demonstrate that the questions from his Honour were not excessive and were reasonable; that, during the proceedings his Honour intervened to ask questions either when it was clear that counsel was confusing the witnesses or on points that his Honour needed to clarify in order better to understand an issue in the case, and that the transcript shows no bias toward any party’s case.

In Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 (Nguyen), this Court had occasion to consider whether the trial judge had there descended into the arena (or the fray) and had adopted the mantle or robe of an advocate or had stood in the advocate’s shoes (to adopt various of the metaphors commonly used in cases where there is said to have been excessive judicial intervention). It is not necessary here to repeat the analysis there set out as to the respective roles of judge and counsel (see Yuill v Yuill [1945] P 15; [1945] 1 All ER 183 per Lord Greene MR at 20 and the observations to which the appellant has here referred that were made by Lord Denning in National Coal Board at 63-64). I also there noted the summary of guidelines set out in Galea, to which the appellant has also referred, by Kirby ACJ (with whom Meagher JA agreed) in relation to complaints of excessive judicial interference (at 281-282), the first of those being that the test to be applied is “whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair” (his Honour there referring to E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146).

Relevantly, in Galea, Kirby ACJ noted that greater latitude in questioning will be accepted where a judge is sitting alone and that, where a complaint is made of excessive questioning, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and “into the perils of self-persuasion” (his Honour there citing Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; and also referring to U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95-96 and cases there cited). In this regard, his Honour noted that the matters to be considered include the context of the whole trial, the number, length, terms and circumstances of the interventions and the point at which they occur (see the principles set out at 4 and 5 of his Honour’s reasons at 281).

The principles articulated in Galea were considered in the Full Court of the Supreme Court of South Australia in R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3 by Kourakis CJ, where his Honour (in a case involving intervention by a judge sitting without a jury in a criminal trial), identified the following three basic grounds on which excessive judicial intervention would give rise to a miscarriage of the trial, those being (see [38]): (i) where the questioning unfairly undermines the proper presentation of a party’s case; (ii) where the questioning gives an appearance of bias; and (iii) where the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (this being referred to as the “dust of conflict” ground). They were considered in the Court of Criminal Appeal in Ellis v R [2015] NSWCCA 262 (Ellis) at [65] (Bathurst CJ; R A Hulme and Garling JJ), where the Court emphasised that the ultimate question is always whether the intervention was unjustifiable and resulted in a miscarriage of justice.

It is also relevant to note that in Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879, Lord Brown, delivering advice of the Privy Council, acknowledged that a judicial officer can properly “clear up ambiguities” and “clarify the answers being given” but said (at [34]) that:

In the present case, the intervention about which complaint was made came directly after the interpreter had said “Sorry, I don’t – I’m not fully understand” and the witness had added in English “You really confused me. Sorry” (see at T 151). The question preceding this was recorded in the transcript as being “Do you agree that you could still pay your legal fees while keeping the $700 payment going every two weeks. Yes. Do you agree that you could pay for your legal fees while still keeping a $700 payment every two weeks arrangement”. This was the culmination of a line of questioning in which it was suggested that the only reason why the financial arrangement changed was that the appellant had been evicted from the Bomadery Property (see from T 149.25ff), a proposition put to the first respondent three times on my reckoning and which the first respondent at least twice denied (see T 149.28; T 212.50; T 214.2).

In those circumstances the primary judge was clearly seeking to clarify the evidence that had been given and remove any room for confusion in that regard given the first respondent’s expression of confusion; and the question “is that what you’re telling …” must be understood in that context (T 152.31).

It is telling that the appellant ultimately identified only one intervention about which complaint was made. Apart from this one intervention, the appellant (quite properly) did not complain as to questions being put by the primary judge to the first respondent in order to remove doubt as to her understanding of what she was being asked by counsel or as to what the witness meant by particular answers. That such an approach by the primary judge was not inappropriate is obvious when one considers that the witness was not giving evidence in her native language and his Honour was satisfied that her evidence was given in what he described as “broken English” (see [72]). The fact that the first respondent had the assistance of an interpreter (though only if she was unable to understand the questions she was asked or to answer them in English) does not mean that his Honour erred in seeking to make sure from time to time that the first respondent did understand the question or that his Honour understood the import of her answer. (The suggestion that the first respondent, because she had given instructions for her affidavit in English or otherwise, in some way bore responsibility for the contents of the transcript is unsustainable; nor should she be penalised for having the language difficulties under which his Honour was satisfied she was suffering during the giving of her oral evidence.)

A review of the transcript as a whole makes it clear that this was nothing like a case of excessive judicial intervention (such as was the case in Nguyen, for example) nor did the primary judge become “impacted” by the “dust of conflict”. There can be no suggestion, having reviewed the whole of the transcript, that the primary judge had exhibited either hostility or partiality to any witness.

Nor am I persuaded that the appellant was prevented from properly presenting his case (the third circumstance in which it was contemplated in Ellis that procedural unfairness not of itself amounting to apprehended bias could cause a hearing to miscarry) by reason of the one intervention with which the appellant now takes issue. I do not accept that his Honour had improperly suggested the witness’ answer to her (and I cannot read her response as an admission that his Honour had done so – indeed, if counsel considered at the time that this was the case it is surprising that there was no cross-examination to that effect). Cross-examination then proceeded with a question from counsel for the appellant as to why the first respondent had not commenced a new financial arrangement from her Westpac account if the carer’s pension had been stopped from the ANZ account (see T 152.36ff), thus at least briefly continuing to explore the circumstances in which the fortnightly payments had stopped after the appellant was evicted from the Bomaderry Property (the line of questioning that the appellant in effect now says was thwarted by his Honour’s intervention). The proposition that the payments had stopped because of the eviction (from which the appellant apparently seeks to argue that there was some plan to deprive him of his interest in the Bomaderry Property and that thereafter the first respondent treated the property as her own) were put to the first respondent (as noted above) and her very clear response was to reject that proposition. The first respondent consistently said that she did not think much at that time (presumably meaning about the payments) and then when counsel for the appellant continued the cross-examination at T 152.36, the first respondent explained that after the domestic violence happened she was distressed and the womens’ refuge officer had taken her to Centrelink to stop the payments.

Finally, insofar as the complaint was made in submissions (but not in the grounds of appeal as such) that the judicial intervention created an apprehension of bias (a serious criticism to be levelled at a judicial officer and one that should have been raised as a proper ground of appeal were it to have been sought to be pressed), the applicable test is well known (see the judgment of the plurality in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]), confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31]), namely whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.

This requires, first, the identification of what it is said might lead the judge not to bring an impartial mind to the relevant question and, second, an assessment of the reasonableness of the asserted logical connection between that matter and the possibility of departure from impartial decision making (see Ebner at [8]). The appellant did not attempt to identify either of those things (other than submitting that the intervention came at the point where the cross-examination was as to an “absolutely crucial” matter on the appellant’s case).

All the relevant circumstances of the particular case may be taken into account in applying the test, though only such knowledge of matters of legal or other specialist practice and process as can reasonably be attributed to the lay observer (including, perhaps, matters of which the observer would inform him or herself before reasonably forming any firm apprehension) will be taken into account (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 584-585 per Toohey J; Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Clarke JA. See also Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 at 47 per Mason CJ and McHugh J; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at 541 per Kirby J). It should also be noted that the hypothetical observer for the purpose of such a test is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.

I am not persuaded that anything in the transcript supports the assertion that the reasonable hypothetical observer might fairly have formed an apprehension of bias on the part of his Honour. As Campbell JA observed in Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83 at [95] in the context of a claim of apparent bias:

Appellable error (if there be appellable error) is not of itself grounds for an apprehension of bias, as was made clear in Michael Wilson, where the suggestion that the making of an erroneous finding might be evidence of the “thing” that might be said to lead the Court into error was seen as involving fallacious reasoning (see at [67] per Gummow ACJ, Hayne, Crennan and Bell JJ).

Ground 9 (whether it be treated as a complaint as to undue judicial intervention or as an unarticulated apprehension of bias ground) is not made good.

Pausing here, had (contrary to my conclusion on grounds 7-9) a remittal been warranted then, despite the fact that the power to remit a matter to a different judicial officer is recognised as one to be exercised sparingly, I would have concluded that the adverse credit findings warranted this in the present case (see Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 per Quinlan CJ at [154], noting that the “interests of justice” relevant to this exercise include the appearance of justice (see McKay v Commissioner of Main Roads [2013] WASCA 135 at [362] per Murphy JA, Martin CJ and Buss JA, as his Honour then was, agreeing)). As it is, that issue does not arise.

For the above reasons, I propose the following order:

BRERETON JA: An appeal such as the present to this Court, governed by Supreme Court Act 1970 (NSW), s 75A, is by way of rehearing. On such an appeal, this Court has the powers and duties, including powers and duties concerning the drawing of inferences and the making of findings of fact, of the court of first instance. As the High Court explained in Lee v Lee (“Lee”): [1]

Thus in this appeal, notwithstanding the numerous and elaborate grounds of appeal, the essential issue is whether on reviewing the evidence this Court is persuaded, as the appellant contends and contrary to the conclusion of the primary judge, that the second respondent held the Bomaderry Property upon trust for the appellant and the first respondent, whether pursuant to a joint endeavour constructive trust, a common intention constructive trust, or a proprietary estoppel.

I have had the benefit of reading in draft the judgment to be delivered by the President, in which the facts and issues, the grounds of appeal, and the competing submissions of the parties, are comprehensively stated. I agree that the appeal must be dismissed with costs, and with her Honour’s reasons. My following supplementary observations assume familiarity with her Honour’s judgment, and adopt the same abbreviations.

The appellant bore the onus of proving his case, which involved proving that the beneficial interest in the Bomaderry Property did not reflect the legal title. To establish that case, the appellant relied on conversations which he claimed to have had at and around the time of the purchase of the property with the respondents the alleged effect of which was that the appellant and first respondent would be the beneficial owners, and on inferences to be drawn from (1) Centrelink records which showed that the first respondent ceased to claim rental assistance when she and the appellant commenced to occupy the property, (2) bank statements of the first respondent and the second respondent which evidenced the making of periodical payments by the first respondent to the second respondent, which in turn funded payments by the second respondent to the mortgagee, and (3) evidence given by the second respondent in proceedings in NCAT that “there was an agreement between myself and [the first respondent] that says she will pay me a certain amount because we are mother and son, so she helped me to accommodate the mortgage payment” (emphasis added).

The primary judge did not accept the appellant as a reliable witness and did not accept his evidence on any contentious matter unless it was against interest, corroborated by contemporaneous records or was inherently likely. [2] Although the appellant complained that his Honour’s reasons for accepting the evidence of the respondents were inadequate, there was no such complaint about the reasons for rejecting the appellant’s evidence, and where the appellant bore the onus, his evidence not being believed was fatal to his case insofar as it was based on the alleged conversations, because it meant that the alleged conversations that were central to the appellant’s case were not proven. [3] That was so, even if one were to give no weight to the respondents’ contrary evidence.

In those circumstances, before us the appellant understandably focussed on the three matters identified above from which an inference that he and the first respondent were intended to be the beneficial owners was said to arise. When it comes to drawing inferences from those matters, this Court is in no inferior position to the primary judge. Thus the appellant contended that it was “glaringly improbable” that the fortnightly payments made by the first respondent to the second respondent were rent and not mortgage payments (Ground 1), and that it was “glaringly improbable” that the property was purchased for the benefit of the second respondent only (Ground 4). The test of “glaring improbability” was embraced by the appellant, consistently with the passage in Lee cited above, because although the impugned findings were of secondary facts, those findings depended on a combination of impressions about the credibility and reliability of witnesses (each of the appellant, the first respondent and the second respondent) formed by the trial judge as a result of seeing and hearing them give their evidence, and other inferences from primary facts (chiefly, the three matters identified above).

To my mind, the important and somewhat under-emphasised starting point for considering whether it was established that the beneficial interest differed from the legal title is the uncontroversial fact that the second respondent contributed the whole of the purchase money for the property, including the amount borrowed on mortgage loan, for the repayment of which he alone is legally responsible to the mortgagee; in those circumstances, the borrowed funds are treated as his contribution. [4] It matters not that how he was able to obtain a loan was unexplained; what matters is that the loan is in his name, and that he alone is liable for its repayment. Thus he is regarded as having contributed the whole of the purchase money. Moreover, it was the second respondent alone who paid the rates and insurance, which are incidents of ownership. On the other hand, the appellant’s payment of the telephone account and utilities is no more than would be expected of a tenant, and their other expenditure, to the extent that any way accepted by the primary judge, was also consistent with the minor and/or removeable fittings and fixtures that tenants might make for their better enjoyment of their occupancy. In my opinion, those objective matters point, and point very strongly, to the second respondent exclusively having the beneficial interest, and the appellant and first respondent being no more than lessees or licensees.

The appellant’s fundamental contention, that the periodical payments made by the first respondent to the second respondent were “for the mortgage”, and not rent, is problematic in multiple respects. First, the payments were not “for the mortgage”, in that they were not paid to the mortgagee. They were paid to the owner, the second respondent, who subsequently made payments to the mortgagee out of the account into which the payments were deposited. Moreover, payments to the mortgagee were not the only payments made from the second respondent’s account into which the first respondent’s payments were deposited, so it was not an account maintained exclusively for receipt and on-payment of “mortgage payments”, and the fortnightly payments received into it were not treated as being solely referable to the mortgage.

Secondly, the real question is whether there was an intention, agreement or representation that the appellant and first respondent would have a beneficial interest; whether the parties described the payments as “rent” or “for the mortgage” is at best tangential. As the respondents submitted, it is commonplace (and tax effective) for landlords to apply rent received from a property to service the mortgage loan which funded its acquisition, but that does not mean that the tenant is intended to have any beneficial interest, or acquires such an interest by “paying off” the mortgage on behalf of the landlord. This is so, even if there is some relationship between the amount of rent and the mortgage payments, and increases in them: that the rent is increased to cover an increase in mortgage instalments does not mean that the rental payments are payments of the mortgage. It is manifest that the second respondent in his then financial position, was not going to be able to service the mortgage out of his other income, and it would be entirely uncommercial for him to acquire the property and incur liability to make the mortgage repayments without receiving some offsetting benefit from the property. It is plain enough that he would at least have to be on an even footing financially, receiving a benefit sufficient to offset his liability. In those circumstances, it is far from glaringly improbable that one purchasing a property to provide accommodation for his mother and her partner would insist, "You'll need to pay me enough that I can cover the mortgage I'm taking out."

Thus, even if the payments were described as “for the mortgage”, or to “cover the mortgage”, that is at best an ambiguous and amorphous description: it is at least equally capable of referring to an arrangement in which in consideration for being permitted to reside in the property the occupant agrees to pay by way of rent of license fee an amount which will assist the owner to cover his mortgage payments, as it is to the notion of the occupants directly assuming responsibility for the mortgage in such a way as might give rise to any equitable interest in the property.

I accept that the cessation of claims for rental assistance could found an inference that the appellant and first respondent no longer thought they were paying rent. However, even in the absence of explanation, it is a faint inference, because people do not always claim every benefit to which they might be entitled. It was all the fainter in the context of the rational explanation advanced on behalf of the respondents that assistance was not claimed because the arrangement was not a lease at arm’s length under a formal tenancy, but an informal arrangement.

The bank statements evidencing the periodic payments by the first respondent to the second respondent are at best equivocal. They are at least as consistent with the payments being rent, applied by the lessor to his mortgage, as they are with being on account of the mortgage; indeed the circumstance that they were occasionally applied to other purposes tips the balance in favour of the view that they were in the nature of rent or an occupation fee – albeit that the intention was that they would enable the second respondent to service his mortgage payments.

The second respondent’s evidence in NCAT is also at least as consistent with the payments being rent. It depends on what she meant by “she helped me to accommodate the mortgage”. The notion of “helping me with the mortgage payments” is not the same as making the mortgage payments as if principally liable, and indeed tends the other way.

Accordingly, the three matters on which the appellant relies for the proposition that the periodical payments must have been “for the mortgage” – especially in the context of the second respondent alone having contributed the purchase money and paid the rates and insurance – are not more probably than not explained by an intention, agreement or expectation that the appellant and the first respondent had or would have a beneficial interest; to the contrary, the more probable explanation is that they were intended to make payments in the nature of rent or an occupation fee which would assist the second respondent to meet his mortgage obligations, he retaining the entire beneficial interest. In my opinion therefore, the impugned findings were not only not glaringly improbable; they were correct.

As to the adequacy of the reasons given for his Honour’s credit findings concerning the respondents (Grounds 7 and 8), grounds of appeal which complain of an alleged inadequacy of reasons must be determined by reference to the issues that arose at the trial, the nature of the evidence, the scope of the appeal and other relevant circumstances, against the background that the general scope of the duty to give reasons is to explain the decision, and not to write an exhaustive treatise on every aspect of the trial. [5] Generally, findings as to credit do not demand elaborate reasons. In particular, where the question is one of accepting and rejecting the evidence of a witness on demeanour-based grounds, little may be required, and there is no requirement for a judge to give a detailed explanation for a decision to prefer the evidence of one witness against that of another. As McHugh JA (as he then was) observed in Soulemezis v Dudley (Holdings) Pty Ltd: [6]

The relevant context in this case included that it was the appellant who bore the onus of proof on the contentious factual issues, and his evidence had been disbelieved. Moreover, although the appellant complained that his Honour’s reasons for accepting the evidence of the respondents were inadequate, there was no such complaint about the reasons for rejecting the appellant’s evidence. Where the appellant bore the onus, and his evidence was not believed, it was of only minor if any import whether the respondents were or were not found to be credible. In those circumstances, his Honour’s reasons for finding the respondents to be credible witnesses were not inadequate.

As to the complaint of undue interference on the part of the primary judge (Ground 9), I have nothing to add to the President’s reasons for rejecting that untenable proposition.

I agree with the order proposed by the President.

MITCHELMORE JA: I agree with Ward P.