Oliver v Renwick Street Pty Ltd; Scahill v Parker

1. [1]

   This dispute principally concerns the ownership of residential property at Wedderburn in southwestern Sydney. The registered proprietor of the property is Mr Anthony Parker. There is also a dispute in relation to a loan taken out to acquire the property.

The parties and their claims

1. [2]

   The parties to the proceedings and their various claims to an interest in the property are as follows.

2. [3]

   Ms Siobhan Oliver was formerly Mr Parker’s de facto partner. She claims to be entitled to one half of the property pursuant to the terms of an express trust declared by Mr Parker at the time of purchase. Alternatively, she claims that Mr Parker is estopped from denying that he holds one half of the property for her by reason of her reliance on clear statements to that effect made at the time of purchase. Her reliance was constituted, she says, by her contribution of almost half the purchase price. In the further alternative, she claims that Mr Parker holds the property subject to a purchase price resulting trust having regard to her contribution to the purchase price. Lastly, she seeks to be subrogated to the position of the first mortgagee of the property in relation to payments made by her in partial discharge of that mortgage.

3. [4]

   Ms Oliver and Mr Parker are represented by the same solicitors and counsel in these proceedings. Mr Parker and Ms Oliver separated very shortly before the commencement of the hearing, but he does not resist any aspect of the relief sought by Ms Oliver.

4. [5]

   Renwick Street Pty Ltd (Renwick Street) is a company associated with Mr Philip Scahill. Renwick Street obtained a judgment against Mr Parker in the District Court in relation to some moneys said to be owing under an agreement relating to the construction of a house on the Wedderburn property. Renwick Street contends that Ms Oliver’s claim to have an equitable interest in the Wedderburn property and Mr Parker’s acquiescence in that claim are recent inventions designed to stymy Renwick Street’s ability to execute a writ against the property in satisfaction of its District Court judgment.

5. [6]

   Mr Scahill separately seeks judgment against Mr Parker or alternatively Ms Oliver in the sum of $200,000 plus interest. Mr Scahill lent the sum of $200,000 to either Mr Parker or Ms Scahill in order to allow the Wedderburn property to be purchased. Mr Parker subsequently gave Mr Scahill a bag containing $200,000 in cash in repayment of that loan. About a year later, the Australian Federal Police (AFP) seized cash in that amount from Mr Scahill. Mr Scahill contends that the loan therefore again became due and payable (regardless of whether the loan was to Mr Parker or Ms Oliver) and seeks judgment. It is also relevant to note his primary contention that the loan was made to Mr Parker, not Ms Oliver. If he is right about that primary contention, then a large part of the cash which Ms Oliver claims to have contributed to the purchase price was not her cash at all – it was cash lent to Mr Parker.

6. [7]

   There are two proceedings before the Court which I shall refer to as the 2021 proceedings and the 2022 proceedings.

7. [8]

   Ms Oliver is the plaintiff in the 2021 proceedings. Renwick Street is the first defendant and Mr Parker is the second defendant. The substantive relief sought in those proceedings by Ms Oliver is as follows:

   1. (1)

      A declaration that Mr Parker holds the Wedderburn property on express trust for himself and Ms Oliver, as tenants in common in equal shares.

   2. (2)

      In the alternative, declarations that:

   3. (3)

      An order that Mr Parker forthwith transfer 50% of the Wedderburn property to Ms Oliver.

8. [9]

   Renwick Street has brought a cross-claim in the 2021 proceedings by which it seeks the following relief:

   1. (1)

      In the event that the Court finds that Mr Parker holds the Wedderburn property or any part of it on trust for Ms Oliver, a declaration that such alienation is void under section 37A of the Conveyancing Act 1919 (NSW) (the Conveyancing Act).

   2. (2)

      An order that the caveat of Ms Oliver be removed from the title to the Wedderburn property.

9. [10]

   Mr Scahill is the plaintiff in the 2022 proceedings. He seeks the following relief.

   1. (1)

      Judgment against Mr Parker for the amount of $200,000.

   2. (2)

      In the alternative, judgment against Ms Oliver for the amount of $200,000.

   3. (3)

      Interest.

   4. (4)

      Costs.

10. [11]

    On 20 May 2022, Darke J ordered that evidence in one proceeding be evidence in the other.

Facts

1. [12]

   Mr Parker was a technician who worked on baggage carousels and conveyer belts at Sydney International Airport. In July 2014, Mr Parker was arrested and charged with serious offences relating to the importation of commercial quantities of illicit drugs into Australia via the airport. Mr Parker was convicted and is currently serving a very lengthy full time custodial sentence. The charges of which he was convicted were gravely serious drug importation offences and offences relating to dealing with the proceeds of crime.

2. [13]

   The Wedderburn property was acquired in early 2013 in circumstances I describe in more detail below. At that time, Mr Parker and Ms Oliver were in a de facto relationship.

3. [14]

   At the time he commenced the relationship with Ms Oliver, Mr Parker was separated from his wife but they were not yet divorced. During 2012 and early 2013, there were quite bitter divorce and child support proceedings between the two of them. They were in dispute about Mr Parker’s child support obligations and about the extent of his financial disclosure.

4. [15]

   Ms Oliver had previously been in a relationship with a man who had drug and alcohol problems as well as a gambling problem. The two of them had a joint bank account with an associated credit card. He ran up very substantial debts on the credit card which neither he nor Ms Oliver was able to service. As a result of this, Ms Oliver had an adverse credit rating in 2012 and 2013.

5. [16]

   In early 2013, Mr Parker and Ms Oliver (whom I will for convenience but a little inaccurately describe as the plaintiffs; I recognise that Mr Parker does not seek any relief in either proceedings) were living in a property at Bradbury owned by Mr Parker. That property was registered in Mr Parker’s name but Ms Oliver considered it to be her home.

6. [17]

   In 2012 and 2013, Ms Oliver was working at two recruiting firms, APS Group and Rush Recruitment, which shared premises with the accounting firm of Mr Scahill. Mr Scahill spent as much time in the offices occupied by Ms Oliver as he did in his own office. Ms Oliver introduced Mr Parker to Mr Scahill very late in 2012. Following this introduction, Mr Scahill assisted Mr Parker with his financial affairs from time to time. There was evidence that they had commercial dealings but the evidence was not very clear.

7. [18]

   Much of what the plaintiffs said about how they came to acquire the Wedderburn property was disputed. Mr Scahill and Renwick Street (whom I will for convenience but, again, a little inaccurately call the defendants) contend that the plaintiffs’ evidence about this matter was, essentially, recent invention.

8. [19]

   At least some aspects of the purchase were not in dispute. A contract to purchase the land was entered into by Mr Parker in early 2013. Settlement occurred on 22 March 2013. Mr Parker became the registered owner. The total purchase price was $630,000.

9. [20]

   Mr Parker obtained finance from Members Equity who took a mortgage over the property. The amount borrowed from Members Equity was $317,000. Mr Parker was the only mortgagor. The balance of the funds required at settlement were paid by bank cheques obtained by Ms Oliver using cash withdrawn from her ANZ cheque account.

10. [21]

    However, how that cash found its way into her account and most of the rest of what occurred in early 2013 is disputed by the defendants. Because the defendants’ case relies at least to some extent on the way the plaintiffs’ accounts are said to have changed over time, it is appropriate that I set some of their evidence out in full.

11. [22]

    In his affidavits sworn on 20 September 2021, Mr Parker said:

12. [23]

    In her affidavit sworn 20 September 2021, Ms Oliver referred to the contract for the purchase of the property and said:

13. [24]

    Ms Oliver also gave evidence as to the source of funds which she claimed to have contributed to the purchase of the property. She said:

14. [25]

    One of the things that was readily apparent during the course of her evidence was that Ms Oliver was not at all fluent with financial concepts, such as the difference between a deposit and the funds paid at settlement.

15. [26]

    Ms Oliver then said, according to her affidavit:

16. [27]

    According to Ms Scahill, Mr Parker then said:

17. [28]

    Ms Oliver’s evidence about what happened next was as follows:

18. [29]

    Her evidence was that she contributed this $200,000 to the purchase of the property, together with an additional $100,000. As to that $100,000, her evidence was that $30,000 was savings from her salary, which at the time was around $75,000 per year, and the balance of $70,000 was deposited by Mr Parker into her account.

19. [30]

    In relation to the $70,000 deposited by Mr Parker, her evidence was that she had a vague recollection of him saying:

20. [31]

    After describing how Mr Parker arranged finance from Members Equity, and some other detail, Ms Oliver then said:

21. [32]

    At the time the proceedings were commenced and the abovementioned affidavits were sworn, both of the plaintiffs were in custody. Mr Parker was serving the sentence I have already referred to. Ms Oliver had in the meantime been convicted of charges relating to dealing with the proceeds of crime.

22. [33]

    By the time she came to swear her affidavit of 15 February 2022, Ms Oliver was no longer in detention and was living again at the Bradbury property. She had discovered some additional correspondence, including a letter dated 31 January 2013 from Elders Real Estate, who acted as agents on the purchase, together with a “Sales Detail Sheet” attached to that letter. The 31 January letter was addressed to Mr Parker and Ms Oliver and congratulated the two of them on their purchase. The Sales Detail Sheet described the purchasers as the two of them.

23. [34]

    These documents prompted Ms Oliver to recall that before the conversation to which she had deposed in paragraph 6 of her earlier affidavit, she had also had the following discussion with Mr Parker:

24. [35]

    This affidavit also contained additional detail concerning her earlier reference to problems with her credit rating. In this affidavit, she explained the misgivings which those problems had given rise to. She said:

25. [36]

    Shortly prior to the hearing, Ms Oliver came into possession of further documents from around the time of purchase. These documents were obtained from the possession of the Australian Federal Police They included the following:

    1. (1)

       A copy of an executed first page of a contract for sale of the Wedderburn property dated 31 January 2013, with both Mr Parker and Ms Oliver as purchasers and executed by the both of them.

    2. (2)

       A copy of an internal business record created by a representative or agent of Members Equity in February 2013, evidently at or shortly after the meeting otherwise described in the plaintiffs’ evidence. It records under “Customer Objective and Loan Purpose”:

26. [37]

    These documents prompted some additional recollections on the part of Ms Oliver, namely:

27. [38]

    Mr Scahill gave a different account of how the $200,000 loan was made. I note at the outset that all parties accepted that Mr Scahill caused $200,000 to be deposited into Ms Oliver’s account in early 2013. It is also not in dispute that these were funds which Mr Scahill loaned to someone. The only question was: to whom?

28. [39]

    In an affidavit sworn on 25 January 2022 while Mr Scahill was also serving a term of imprisonment for offences relating to receiving the proceeds of crime, he deposed as follows:

29. [40]

    I allowed the evidence in paragraph 4 on the limited basis that it could only be used as evidence of Mr Scahill’s understanding of the agreement: s 136 Evidence Act 1995 (NSW).

30. [41]

    Mr Scahill expressly rejected Ms Oliver’s evidence that she had had some discussion with him about the loan. All of this was, in turn, emphatically refuted by Mr Parker.

31. [42]

    Mr Scahill did not keep any formal record of the loan. Nor was there any contemporaneous correspondence or note in relation to it. There was however some additional evidence that bears on the question of whether the loan was to Mr Parker or Ms Oliver.

32. [43]

    The plaintiff tendered a document containing a handwritten note apparently referring to the loan. Mr Scahill accepted that this document was in his handwriting and that it had been prepared by him at the time of making the loan. It was headed “Siobhan Oliver - $200k transfer”. It contained Ms Oliver’s name and bank account details. It then said:

33. [44]

    It also contained a number of entries about payments from and to the Scahill & Co trust account. Mr Scahill said that these entries reflected that the $200,000 was paid out of his trust account from funds paid in by other clients but that no client was left short as a result of the transfers.

34. [45]

    Mr Scahill was also shown extracts from a record of interview with the Australian Federal Police on 8 September 2014. He accepted that he had given that interview and that he had reviewed the transcript of it at the time. The record of interview contained the following:

35. [46]

    I comment on Mr Scahill’s evidence in relation to the record of interview later in these reasons.

36. [47]

    The court also received evidence of a letter dated 28 August 2013 written by a solicitor on behalf of the Registrar General, Land & Property Information. The letter was addressed to Mr Scahill and referred to “dealings that you [ie, Mr Scahill] lodged…requesting the Registrar General to, in relation to [the Wedderburn property], record a claim by the caveator, Phil John Scahill…and a claim by the caveator, Siobhan Oliver….”.

37. [48]

    It also separately noted that Mr Parker “lodged both of the caveats” and that he had attended at the offices (presumably at Queens Square, Sydney) and presented his driver’s licence with the dealings.

38. [49]

    The letter said:

39. [50]

    Mr Parker was emphatic that he most certainly did not know about these caveats and that he had not lodged them and had not presented his driver’s licence to anyone at any time in connection with this matter.

40. [51]

    At the same time, Mr Scahill strongly refuted that he had any knowledge of the caveats or the correspondence, from him, to which the letter referred.

41. [52]

    In the circumstances, I am wary of placing much reliance on this evidence. I do not have the dealings or correspondence to which it refers. I also do not know when those dealings were purportedly lodged or what else they say.

42. [53]

    Account statements for Ms Oliver, together with her affidavit evidence, demonstrate that she withdrew funds from her account and contributed them towards the purchase of the Wedderburn property. This occurred in two stages. First, she withdrew $61,435 on 27 February 2013 which I infer was used for the deposit of $63,000. Next, she withdrew $291,959.36 on 22 March 2013 in circumstances I describe in slightly more detail below, for the balance of the purchase price and other settlement costs.

43. [54]

    The balance of the purchase price was paid by Mr Parker using the proceeds of the loan from Members Equity, who took a mortgage as security.

44. [55]

    In the time between the purchase of the property and Mr Parker’s arrest, he made the mortgage payments on both the Wedderburn property and the Bradbury property, where they were living. Ms Oliver paid day to day living expenses such as groceries. They each saw themselves as being in a domestic partnership in which they more or less equally shared their overall costs.

45. [56]

    Once Mr Parker was arrested in the middle of 2014, Ms Oliver began to pay the mortgage payments. An account reconciliation showed that her total contribution towards the mortgage on the Wedderburn property was $87,470.21. The evidence showed that she received some money from Mr Parker’s family and from some other sources which she was able to use to service the mortgages. These amounts were approximately as follows:

    1. (1)

       $40,000 given to her by Mr Parker’s step-father.

    2. (2)

       $30,000 which she received as the proceeds of an insurance claim relating to a car accident.

    3. (3)

       $16,000 which seems to have been from her own savings.

46. [57]

    In April or May of 2013 Mr Parker made an unannounced visit to Mr Scahill at his office and produced cash totalling $200,000. Mr Scahill accepted that this was, in his words, “in repayment of the loan”. Mr Parker and Mr Scahill counted the money out, then Mr Scahill lodged it in a safety deposit box at his bank.

47. [58]

    Mr Parker’s evidence about the repayment was very similar to Mr Scahill’s account, save that he said that the cash was to repay Ms Oliver’s loan and that he said so at the time. He also said that he paid $220,000 in cash, not $200,000.

48. [59]

    On 25 July 2014, the cash was confiscated from Mr Scahill’s possession. Mr Scahill’s evidence was that he believed the cash was confiscated as proceeds of a crime committed by Mr Parker.

49. [60]

    It is Mr Scahill’s case that the amount of the loan became due and payable (again) when the cash used to repay it in 2013 was seized from his possession by the AFP in 2014.

50. [61]

    While Mr Parker was in prison, Renwick Street commenced proceedings against him in the District Court by way of statement of liquidated claim. Those proceedings resulted in a default judgment in the sum of $517,729.99 inclusive of costs. The basis of that claim was very like the basis of the claim now brought by Mr Scahill in the 2022 proceedings. It seems that cash totalling $473,350.75 that had been used by Mr Parker to pay Mr Scahill for other services was seized from Mr Scahill’s trust account in 2014. Renwick Street obtained default judgment but without first pleading or otherwise mentioning to the District Court that payment had actually been received in 2013 and that the claim was brought in circumstances where that cash was subsequently seized.

51. [62]

    There was an application to have that default judgment set aside, which was unsuccessful.

52. [63]

    Default judgment was entered in favour of Mr Scahill against Mr Parker by the District Court on 9 November 2017. On 28 November 2017 Mr Scahill filed a writ for the levy of property as judgment creditor against the Wedderburn property (the First Writ).

53. [64]

    Mr Scahill then went about trying to enforce the First Writ through the District Court. Administrative errors resulted in the First Writ expiring on 28 November 2019 without any enforcement having taken place.

54. [65]

    On 29 November 2019 Mr Scahill filed another writ against the Wedderburn Property and had the operation of that writ extended to 29 November 2021 by order of the District Court dated 4 November 2020.

55. [66]

    On 30 August 2021, Mr Scahill served a lapsing notice on Ms Oliver in relation to a caveat which she had placed on the Wedderburn property. In response to that lapsing notice Ms Oliver commenced the 2021 proceedings by way of summons filed 16 September 2021 to extend the operation of her caveat and to seek the final relief that is the concern of this judgment. An amended summons was filed on 2 February 2022.

56. [67]

    The 2022 proceedings were commenced separately by Mr Scahill by way of statement of claim filed 22 February 2022.

Issues for determination

1. [68]

   There are two sets of slightly overlapping issues for determination.

2. [69]

   In the 2021 proceedings, it is necessary to determine the following:

   1. (1)

      Did Mr Parker hold the Wedderburn property on the terms of an express trust for Ms Oliver? In determining this issue, it is necessary to decide whether the evidence which each of Mr Parker and Ms Oliver has given is reliable or, as the defendants say, whether it must be rejected as recent invention. It is also necessary to determine whether any declaration of express trust was effective having regard to the terms of section 23C of the Conveyancing Act.

   2. (2)

      Alternatively, is Mr Parker estopped from denying the existence of Ms Oliver’s interest in the property?

   3. (3)

      In the further alternative, is the Wedderburn property held subject to a purchase price resulting trust reflecting Ms Oliver’s financial contribution to the purchase price? For reasons given below, it is appropriate to determine this issue prior to the previously mentioned issue concerning estoppel.

   4. (4)

      Is Ms Oliver entitled to be subrogated to the position of Members Equity to the extent she made payments to discharge the mortgage?

   5. (5)

      Does section 37A of the Conveyancing Act apply to defeat any dealing in the Wedderburn property?

3. [70]

   In the 2022 proceedings, two main issues arise:

   1. (1)

      To whom did Mr Scahill lend $200,000?

   2. (2)

      Is Mr Scahill entitled to judgment from either Mr Parker or Ms Oliver notwithstanding the receipt of cash from Mr Parker referred to in paragraph [57] above?

Express Trust

1. [71]

   The express trust over the Wedderburn property for which Ms Oliver contends was not evidenced by any contemporaneous written document. Instead, Ms Oliver relies on an “implied” declaration of trust by Mr Parker. I will deal with the writing requirement in due course.

2. [72]

   Ms Oliver invited me to determine the question of whether there was a declaration of trust by determining whether such a declaration could be implied. She particularly relied on what was said by French CJ in Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62; [2015] HCA 6 at [3] where his Honour said:

3. [73]

   I do not however understand French CJ to have been saying that a declaration of trust may be found provided only that the Court is satisfied that the purported settlor had an intention to create a trust. That, after all, was not quite the issue in dispute in that case. The question there was whether the requisite intention could be discerned from the commercial contract between the parties. In this regard, his Honour referred with approval to the decision of Heydon and Crennan JJ in Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 at [103]. Of particular relevance for the present case is what was said by their Honours at [105]:

4. [74]

   See also Heydon and Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) (Jacobs’ Law of Trusts) at [5-02].

5. [75]

   The question of whether Mr Parker declared an express trust therefore cannot be resolved in favour of Ms Oliver by finding merely that Mr Parker intended to create one. Although there is no requirement as to the particular form of words or writing to be used, there is nonetheless a requirement that the intention somehow be expressed. I will therefore first address the question of what was actually said at the time.

6. [76]

   I have already set out the evidence on which Ms Oliver relies on this issue. It consists of the accounts given by her and by Mr Parker. The real issue here is whether I accept the evidence on which Ms Oliver relies.

7. [77]

   The reliability of that evidence was challenged by Renwick Street, largely on the basis that it was a recent invention designed to defeat its attempts to obtain satisfaction of its District Court judgment. To some extent, that argument depended on the fact that the plaintiffs’ respective accounts of what was said and done in early 2013 had become more complete and somewhat more definitive during the course of the litigation. To some extent, the argument also depended on the proposition that the claim was one that was only ever made belatedly, after Renwick Street had first attempted to execute a writ against the property. The defendants also submitted that the evidence of both Mr Parker and Ms Oliver should be rejected as being generally unreliable.

8. [78]

   As to the notion that the plaintiffs’ accounts had changed in some meaningful way during the course of the litigation, it is relevant to note that each of them was in custody at the time of swearing their first affidavits. Nonetheless, each made their position quite clear in those affidavits in ways that have not really changed in the meantime. The events in question occurred in early 2013. The first affidavits were not sworn until late 2021. In fairness to both Mr Parker and Ms Oliver, neither purported to have a terribly extensive or detailed recollection of any conversation from 2013. Each candidly explained where their recollection was vague or uncertain.

9. [79]

   The further documents that have become available over time have corroborated rather than contradicted the plaintiffs’ initial recollections. For example, Ms Oliver’s very general early (September 2021) recollection as to whether the property would be purchased in their joint names and as to why it was eventually purchased in Mr Parker’s name alone has been confirmed, in stages, by material produced over time. By February 2022 she had obtained access to the correspondence from the real estate agent to which I referred above. This letter is some limited evidence that there may well have been some discussion at the time about the two of them purchasing the property together. The real estate agent, at least, considered them to have purchased the property together. That evidence is of course not relevant to the ultimate question of whether an express trust was created, but it does tend to bolster my perception of Ms Oliver’s reliability as a witness.

10. [80]

    In her affidavit of February 2022, Ms Oliver said that the real estate agent’s letter had assisted her recollection of what was said at the time, namely that they initially told the real estate agent that they wished to purchase the property together. Although this was a “new” recollection as at February 2022, it is one that has now been strongly corroborated by the documents produced by the AFP shortly prior to the hearing in early 2024. Those documents revealed that both Mr Parker and Ms Oliver had, in fact, initially signed a contract to purchase the Wedderburn property jointly. This is a fact which both Mr Parker and Ms Oliver had forgotten and therefore cannot have had in mind when they recorded their recollections in their earlier affidavits. Yet it is a fact which strongly corroborates their recollections. This further bolsters my perception of the reliability of Ms Oliver’s and Mr Parker’s affidavit evidence. Ms Oliver’s February 2022 affidavit evidence about this matter may have been “recent”, but it was hardly “invention”.

11. [81]

    Ms Oliver’s February 2022 affidavit evidence about the attempts to take out a joint mortgage is in the same category. In her September 2021 affidavit, Ms Oliver said that she didn’t recall the discussions about who was going to be the borrower but that she always assumed it would be Mr Parker “because of the credit difficulties” to which she had referred.

12. [82]

    In her February 2022 affidavit, Ms Oliver said that she was prompted by the additional documents to recall in more detail their attempts to obtain a joint mortgage. I have set this evidence out above. This evidence was also said to be recent invention. It is true that it was “new” in that she had not been able to recall it earlier. But this evidence has also been strongly corroborated by documents produced shortly prior to the hearing by the AFP. As noted at paragraph [36] above, those documents included a business record created by a representative or agent of Members Equity on 21 February 2013 which corroborates both Ms Oliver’s and Mr Parker’s evidence about the basis on which they were purchasing the land and the reason why they did not purchase it in both names. The document records that “[Mr Parker is] going to purchase the land with his new domestic partner (Siobhan) but due to adverse CRAA [ie, credit assessment] on Siobhan” the loan would be in his name only.

13. [83]

    This document provides good independent support for important aspects of Ms Oliver’s and Mr Parker’s evidence that are said to have been “invented” or otherwise unreliable. These circumstances give me additional confidence that the affidavit accounts which both Mr Parker and Ms Oliver have given about how the Wedderburn property came to be purchased are generally reliable. They are not recent inventions.

14. [84]

    Next, it was argued that the timing of the plaintiffs’ claim about the existence of a trust was suspicious in that it was not mentioned until the defendants started to press their own claims against the Wedderburn property.

15. [85]

    I do not find it very surprising that Mr Parker and Ms Oliver did not take any steps to prove their position in relation to this matter until 2021. The evidence shows that on 16 November 2018 the NSW Crime Commission obtained an order pursuant to s 10A of the Criminal Assets Recovery Act 1990 preventing Mr Parker from disposing of or otherwise dealing with both the Wedderburn property and the Bradbury property.

16. [86]

    The NSW Crime Commission lodged a caveat to protect the statutory charge which the s 10A order created. Both Ms Oliver and Mr Parker stated that they were aggrieved by the lodgement of the caveat. But the caveat would not have been a reason for them to seek to have their respective interests in the property determined in Court. Both he and Ms Oliver were required to be examined in relation to their interests in the Wedderburn property (and other property) pursuant to an order made under s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 (NSW). The evidence does not show whether that occurred and, if it did, what they said.

17. [87]

    The first time it seems that the existence of Ms Oliver’s claimed interest seems really to have required resolution by the Court was when the defendants started to press their own claims in relation to the Wedderburn property.

18. [88]

    I note that the plaintiffs did not otherwise seek to memorialise their position at the time of purchase, but I do not find that fact alone to be a sufficient basis to reject their otherwise quite reliable accounts of those events.

19. [89]

    In all of these circumstances, I am not prepared to reject the evidence of Ms Oliver or Mr Parker as being unreliable. Rather, I find that their evidence about the circumstances at the time of purchase is generally reliable. I find that Mr Parker did say the words which he claims to have said in his 20 September 2021 affidavit. I also find that he said the words attributed to him by Ms Oliver in her 20 September 2021 affidavit.

20. [90]

    The question of whether Mr Parker intended to create a trust in relation to the Wedderburn property must be resolved by construing the words he used at the time, in the context in which those words were spoken.

21. [91]

    Before considering the words used, I draw the following conclusions about the immediate context.

22. [92]

    At some point in late 2012 or early 2013, the plaintiffs decided that they would purchase the Wedderburn property. They intended that they would purchase the property together, by which I mean they would both enter into the contract to purchase the property and would both become registered proprietors. Their purpose, which did not change in the course of January and February 2013, was that they would build a home together at the Wedderburn property.

23. [93]

    On 31 January 2013, they entered into a contract to purchase the property. It would not have been possible for the plaintiffs to complete that contract without obtaining finance. The need to obtain finance was apparent to both of them from the very outset. Ms Oliver had misgivings about whether she would be able to obtain finance because of the credit difficulties she had, namely those I described at paragraph [15] above.

24. [94]

    At the same time, Mr Parker wanted Ms Oliver to contribute to the property. His evidence, which I accept, was to the effect that he was very motivated by the unpleasantness of the dispute with his ex-wife (which was happening at the same time as the purchase of the property) to ensure that Ms Oliver made a contribution to the purchase of the property and that her contribution was clear. He did not wish to end up in a dispute with either Ms Oliver or his ex-wife about whether and to what extent Ms Oliver was entitled to an interest in the Wedderburn property.

25. [95]

    Both Mr Parker and Ms Oliver spoke to a representative or agent of Members Equity about obtaining finance to complete the purchase of the property. This seems to have involved a refinancing of the mortgage over the Bradbury property, but nothing really turns on this. When they spoke with the bank in February 2013, they (but most probably Mr Parker having regard to the terms of the document) made it clear that they wished to purchase the property together and that they also wished to borrow funds jointly for that purpose.

26. [96]

    However, Ms Oliver’s misgivings about obtaining finance were justified. The bank told them that the loan would not be approved or that it was unlikely to be approved while ever she was nominated as a borrower. This was because of her credit rating, as she had feared.

27. [97]

    Nonetheless, each of Mr Parker and Ms Oliver still wished to purchase the property. It was in this context that Mr Parker said:

28. [98]

    At some point, likely in the second half of February 2013 after the discussions with Members Equity, Mr Parker entered into a new contract to purchase the property in his name alone.

29. [99]

    It was in this context that, shortly after completion, Mr Parker said to Ms Oliver:

30. [100]

    I am satisfied that Mr Parker intended for Ms Oliver to have a 50% interest in the property and that he expressed this intention when he spoke the words just mentioned. His intention for Ms Oliver to have a 50% interest was formed well prior to the purchase and did not subsequently change. Ms Oliver well understood that this was his intention.

31. [101]

    This was also his intention regardless of any other conclusion that might be reached about whether Ms Oliver did or did not borrow $200,000 from Mr Scahill and regardless of whether she contributed 50% or some other proportion of the purchase price. So far as the loan from Scahill is concerned, the possibilities are these: either (a) Mr Parker borrowed from Mr Scahill but directed him to pay the money to Ms Oliver so that would look to all the world as though it were her contribution; or (b) Ms Oliver took out the loan and contributed $200,000 to the purchase price on her own account. So far as the additional cash contributed by Ms Oliver towards the purchase price is concerned, the possibilities are broadly the same: either (a) Mr Scahill put money into her account so that she could contribute to the purchase price, or (b) he put money into her account so that it would look to all the world as if she had contributed to the purchase price. On any view, Mr Parker’s actions are consistent with an intention on his part for Ms Oliver to have a 50% interest in the property.

32. [102]

    I am therefore satisfied that Mr Parker made a declaration of trust in relation to the Wedderburn property in favour of Ms Oliver, and that her interest under that trust was as an equitable tenant in common as to 50%. The declaration was made at about the time of purchase.

33. [103]

    Mr Parker did not make any written record of his declaration of trust in favour of Ms Oliver at the time, nor at any subsequent time prior to the commencement of these proceedings. Although, as I have mentioned above, there was some suggestion that in 2013 Mr Parker lodged a caveat over the Wedderburn property which stated that Ms Oliver had an equitable interest in the property, that caveat was not in evidence and I am not prepared to draw any conclusions about its existence or contents in the light of the state of evidence surrounding that issue.

34. [104]

    The plaintiffs’ case in relation to the requirement of writing rested entirely on the proposition that the written evidence of Mr Parker contained in his affidavits sworn in these proceedings, particularly his 20 September 2021 affidavit, was sufficient compliance with s 23C(1)(b) of the Conveyancing Act. The issue here is whether affidavit evidence sworn in the proceedings in which the question arises is sufficient compliance with that requirement.

35. [105]

    Section 23C(1) is as follows:

36. [106]

    The plaintiffs particularly rely on what was said in Barkworth v Young (1856) 26 LJ Ch 153 (Barkworth).

37. [107]

    In Barkworth the plaintiff alleged that he married his wife on the premise of an oral agreement with his father-in-law which stipulated that he (the father-in-law) would leave a share of his estate to his daughter. Subsequently, the father-in-law brought proceedings against the plaintiff in order to have the plaintiff declared a lunatic, wherein the father-in-law swore an affidavit stating that he had indeed made the promise of inheritance to the plaintiff. The father-in-law then died without leaving any provision for the plaintiff, his then deceased daughter (the plaintiff’s wife) or the children of the couple.

38. [108]

    The plaintiff brought proceedings against the executors of the father’s estate to enforce the earlier oral agreement. The executors relied on the Statute of Frauds 1677 (UK) and pleaded that there was no writing evidencing the agreement. Sir RT Kindersley, Vice Chancellor in the High Court of Chancery found that the earlier affidavit sworn in the lunacy proceedings was sufficient to meet the writing requirement. The Vice-Chancellor said at 6:

39. [109]

    This lengthy passage was relied on by Ms Oliver to support her contention that Mr Parker’s affidavit evidence in these proceedings can satisfy the s 23C requirement. I note however that the requirement was satisfied in Barkworth by reference to an affidavit that was already in existence at the time the proceedings before the Vice Chancellor were commenced.

40. [110]

    The plaintiffs also referred me to a number of other decisions in support of the contention that the writing requirement may be met by way of an affidavit sworn in the proceedings in which the existence of a memorandum in writing was one of the facts in issue. So, for example, I was referred to Equuscorp Pty Ltd v Jiminez [2002] SASC 225 where Besanko J rejected a claim that the writing requirement had been met by way of an affidavit sworn in the proceedings but on the narrow basis that it was not sworn by both putative settlors and because it did not set out the terms of the trust: see especially [116]-[123].

41. [111]

    I was also referred to the decision of Lee J in Secretary, Department of Social Security v James (1990) 95 ALR 615 at 622, a decision on which Besanko J had relied. Those proceedings were an appeal from a decision of the Administrative Appeals Tribunal in which the Tribunal had found that at the time of purchasing an apartment, the respondent had made a declaration of trust in favour of her daughter and grand-daughter. On appeal, the Secretary contended that the Tribunal had erred in point of law by failing properly to construe s 34 of the Property Law Act 1969 (WA) and by therefore wrongly concluding that the respondent had validly declared a trust.

42. [112]

    Lee J said:

43. [113]

    His Honour then addressed the particular issue in that case. He noted:

44. [114]

    Ms Oliver particularly relies on these parts of Justice Lee’s reasons.

45. [115]

    However, that was not the end of the matter. The substance of the Secretary’s argument was that none of these written memoranda set out the actual terms of the trust. The Tribunal’s decision that the writing requirement was satisfied depended, so the Secretary argued, on statements made in oral evidence as to the terms of the trust. The Secretary’s argument was that in concluding that the writing requirement was satisfied, the Tribunal erred by taking into account evidence given in the very proceedings before the Tribunal. His Honour accepted this argument. His conclusions at 624 were as follows:

46. [116]

    So understood, James does not assist the plaintiffs here. It affirms that the writing requirement may be satisfied by a later affidavit, but it is not authority for the proposition that the writing requirement may be met by affidavit evidence given in the proceedings in which the existence of that requirement is in issue.

47. [117]

    Next, I was referred to the decision of Besanko J in Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53; [2006] FCAFC 157 (Draper). This was an appeal from a Federal Magistrate in which the Full Federal Court found errors sufficient to warrant an order for rehearing, including the rehearing of a contention that certain property was held subject to an express trust. The Court was comprised of Mansfield, Rares and Besanko JJ.

48. [118]

    Mansfield J was of the view that the question of whether the property was held subject to the terms of an express trust needed to be reheard. As to whether the writing requirement had been met, his Honour said at [39]:

49. [119]

    Rares J agreed with Mansfield J: see [76]. As to this particular issue, his Honour said at [85]-[86]:

50. [120]

    His Honour’s ultimate conclusion on this issue, at [88], was that “the parties should have an opportunity to research this matter and address it at the new trial.”

51. [121]

    Besanko J, in a passage on which Ms Oliver particularly relies, said at [159]:

52. [122]

    I can accept that his Honour here assumed that an affidavit sworn in the proceedings could conceivably satisfy the writing requirement. But that does not seem to have been the assumption underlying the reasons of any other member of the Court, nor does it seem to have been the subject of any argument. I would therefore not treat Draper as authority for the proposition for which the plaintiffs cite it.

53. [123]

    Next, the plaintiffs referred me to a decision of Besanko J in Kelly v Commissioner of Taxation [2012] FCA 423 (Kelly). That case concerned Mr Kelly’s liability to tax as a partner of a Queensland law firm. At issue was whether and, if so, the extent to which the partners of the firm had successfully assigned interests in the partnership to two related trusts.

54. [124]

    The question of compliance with the writing requirement under s 11(1)(c) of the Property Law Act 1974 (Qld) arose in relation to a series of transactions which was said to have taken place in 2005, although there was no sale agreement or assignment agreement in evidence.

55. [125]

    At [189] and following, Besanko J addressed two related points taken by the Commissioner of Taxation by reference to the Property Law Act. The first is described at [190]. It was that the rights of partners to partnership property while the partnership carries on business are indivisible and that any attempt to assign a “collective” interest is ineffective at law.

56. [126]

    The second is described at [191] and was closely related to the issue just mentioned. It was that:

57. [127]

    I note that neither of the submissions put by the Commissioner involved the anterior proposition that the writing requirement may not be met by an affidavit sworn in the proceedings in which the existence of the writing requirement is in issue.

58. [128]

    Besanko J rejected both of the Commissioner’s submissions. In relation to the first submission, his Honour held that it was clear from the “objective circumstances” that the partners had intended to assign a 30% interest in the partnership and that if the transferee trust had sued on the transaction:

59. [129]

    As to the second of the Commissioner’s submissions, his Honour said:

60. [130]

    There seems to be no doubt that his Honour – indeed all parties – took the view that the affidavits sworn in the proceedings could be relied upon by Mr Kelly to demonstrate compliance with the Property Law Act. The only question was whether they did so.

61. [131]

    An appeal and cross-appeal were dismissed in Kelly v Federal Commissioner of Taxation [2013] FCAFC 88. The Full Federal Court seems to have found the Commissioner’s submissions on this point to be somewhat arcane: see their sceptical observations at [63], where the Court described the Commissioner’s submissions as having an air of unreality. The Full Federal Court was however not asked to consider whether the primary judge had been correct to proceed on the basis that the affidavits sworn in the proceedings could satisfy the writing requirement in the first place. I do not read the reasons as having anything to say about that point.

62. [132]

    On balance, whilst the reasons of Besanko J are entitled to be treated with due deference, I do not regard Kelly as authority for the proposition that the writing requirement may be met in the manner for which the plaintiffs contend.

63. [133]

    Such other authority as I have been able to identify is directly against the plaintiffs on this point.

64. [134]

    In Dudgeon v Chie (1954) 55 SR (NSW) 450, Mrs Chie claimed to have been entitled, since 1953, to the possession of a dairy farm at Numulgi, NSW. She issued a writ of ejectment to recover possession from the farmer, Mr Dudgeon. Mrs Chie applied for an order striking out Mr Dudgeon’s appearance and particulars of defence and for leave to enter judgment. Mr Dudgeon’s particulars of defence included a claim that the farm was a holding within the meaning of the Agricultural Holdings Act 1941 and that he had not been given notice pursuant to the provisions of that Act. His basis for contending that the farm was a holding within the meaning of that Act was the written share-farming agreement of 12 October 1945, which agreement had never been terminated. Mrs Chie contended that this agreement had been terminated in March 1950 and that, thereafter, only an oral agreement had been in place.

65. [135]

    It was common ground that if the share-farming agreement was oral, Mr Dudgeon could not succeed on this defence. The Court noted that the effect of relevant authority was that “the provisions of s. 24, read with s. 5 of the Agricultural Holdings Act, 1941, render the agreement one that is incapable of performance within one year from the making thereof, so that s. 4 of the Statute of Frauds…..applies to it.”

66. [136]

    Mr Dudgeon then argued that if the true position was that the agreement of 1950 was a new oral agreement, then Mrs Chie’s own affidavit in the proceedings in which she deposed to the existence of the agreement, was sufficient writing of it. The Court (Street CJ and Roper CJ in Eq, Herron J dissenting) rejected this argument. At 467 to 469 the majority explained that an affidavit sworn by the plaintiff for the purpose of the rules (relevantly, rule 27) cannot be used in the same action by a defendant for the purpose of providing sufficient written evidence to satisfy the Statute of Frauds. Their Honours referred to Barkworth but noted that it was a case in which the affidavit in question had been sworn in earlier proceedings.

67. [137]

    Furthermore, their Honours expressly left open the question of whether the writing in question needed also to be in existence when the party relying on it becomes a party to the action: see their Honours’ reference to Lucas v Dixon (1889) 22 QBD 357 at 469.

68. [138]

    To like effect is Popiw v Popiw [1959] VR 197, especially at 200 where the Court followed Dudgeon v Chie on this point; and South Coast Oils (Q and NSW) Pty Ltd v Look Enterprises Pty Ltd [1988] 1 Qd R 680 at 690.

69. [139]

    Dudgeon v Chie has been followed in the Court of Appeal. In Fletcher v Burns (1997) 12 BPR 22937 the plaintiff sued the executors of an estate in an effort to enforce an alleged oral contract made with the deceased in relation to the transfer of land. The Court of Appeal held that the plaintiff was unable to rely on an affidavit sworn by the first defendant as satisfaction of the writing requirement. Handley JA (with Cole JA and Dunford AJA agreeing) said at 22938:

70. [140]

    Finally, I note that in Ciaglia v Ciaglia [2010] NSWSC 341, White J said at [86]:

71. [141]

    In the circumstances, I am unable to accept the argument that Mr Parker’s affidavits sworn in these proceedings are sufficient compliance with s 23C of the Conveyancing Act to establish Ms Oliver’s claim that the Wedderburn property was held on the terms of an express trust. The weight of authority is against the proposition.

72. [142]

    I have found that Mr Parker did make a declaration of trust in favour of Ms Oliver, but that the requirement of writing contained in s 23C of the Conveyancing Act was not met. The express trust claim therefore fails.

Alternative claims

1. [143]

   Before addressing the substance of Ms Oliver’s alternative claims, it is appropriate to consider the order in which they should be determined.

2. [144]

   Ms Oliver first presses a constructive trust claim on the basis of a proprietary estoppel. Ms Oliver says that even if there was no express trust (because, for example, the writing requirement was not met), then the things which Mr Parker said at the time were nonetheless representations as to her interest in the property upon which she relied to her detriment. That detriment is said to be the contribution she made to the purchase price. Ms Oliver’s contribution, and hence her reliance for these purposes, is said to have been about $300,000 out of the total purchase price of $630,000. She expressly disclaims any reliance on the things she did after the purchase, such as servicing the mortgagte to support her constructive trust case.

3. [145]

   The relief which Ms Oliver seeks if she is right about the estoppel claim is a remedial constructive trust as to half the Wedderburn property.

4. [146]

   Ms Oliver next presses a resulting trust claim on the basis of her contribution to the purchase price.

5. [147]

   It is immediately apparent that the remedy which Ms Oliver seeks in relation to the constructive trust/estoppel case is of potentially greater value to her than the remedy she seeks based on the purchase price resulting trust. That is because in the first case she would be recognised as a 50% owner even if her contribution to the purchase price turned out to be much less than 50%, whereas in the second, she would be recognised as an owner only to the extent of her contribution, which may turn out to be significantly less than the $300,000 she claims.

6. [148]

   There is a degree of artificiality to the approach which Ms Oliver suggests here, even allowing for the overlap in the facts relevant to each claim. What is in issue in the resulting trust case is the operation of a presumption that arises where a person contributes to the purchase of property in another person’s name and whether there is evidence to rebut that presumption: see cases such as Calverley v Green (1984) 155 CLR 242; [1984] HCA 81. The particular issue that arises in such cases is whether the there is evidence of the parties’ intentions at the time of purchase that provide a reason to depart from the presumption.

7. [149]

   On the other hand, what is in issue in the constructive trust case is the inequity of allowing a legal owner to resile from promises made at the time of purchase, by reason of the plaintiff’s later detrimental reliance on that promise.

8. [150]

   I consider that it is appropriate to determine the resulting trust issue first. The fact that Ms Oliver explicitly limits her claim to the detrimental reliance involved in advancing the purchase price does not make any difference. If Ms Oliver is right about the existence of the purchase price resulting trust, then the existence of that trust (specifically, the existence of the facts which are presumed to exist where the presumption applies) will probably be a material consideration in determining the appropriateness of any remedy she seeks by way of constructive trust. The converse, however, is unlikely to be true.

What was Ms Oliver’s contribution to the purchase price?

1. [151]

   Before addressing the substance of the alternative trust claims, it is necessary to determine how much Ms Oliver actually contributed to the purchase of the Wedderburn property.

2. [152]

   There is almost no evidence of how the deposit was paid, save for an account statement from which I infer that Ms Oliver withdrew $61,435 on 27 February 2013 for the purpose of the deposit.

3. [153]

   Settlement took place on 22 March 2013. The purchase price was $630,000. The total sum due to the vendor at settlement was $567,388.36. Bank cheques were required for stamp duty ($23,860), legal fees ($1,668.59) and the balance of the purchase price after the mortgage ($273.770.41).

4. [154]

   Mr Parker had arranged for Members Equity to provide the balance of the purchase price, being $317,000.

5. [155]

   On 21 March, Ms Oliver walked from her workplace to the North Parramatta branch of the ANZ bank to arrange for bank cheques to be issued in anticipation of settlement. A statement shows that $291,959.36 was withdrawn from her ANZ cheque account on that day. Although I cannot entirely reconcile the numbers, I find that she arranged and paid for the bank cheques to which I have referred.

6. [156]

   The defendants say that the funds in her account which Ms Oliver used to acquire the bank cheques were not really her funds. They say that as to $200,000, these are the funds borrowed by Mr Parker from Mr Scahill and only paid into her account by direction. As to any amount in excess of $200,000, they point out that there had been many deposits made by Mr Parker into her account in the period preceding 22 March 2013 and that these amounts were also really Mr Parker’s money. In the result, they say that Ms Oliver never really acted to her detriment on any representations made by Mr Parker as to ownership of the property; all she did was cause Mr Parker’s own money to be contributed to the purchase. All of this, they say, was no more than a ruse to conceal Mr Parker’s own contributions to the purchase of the property.

7. [157]

   I will deal with these issues in turn, starting with the question of whether the loan was to Ms Oliver or Mr Parker.

8. [158]

   The Court has competing accounts of how the loan was made. On the one hand, there is the plaintiffs’ evidence that it was Ms Oliver who first approached Mr Scahill and that the loan was to Ms Oliver. On the other hand, there is the defendants’ evidence that Mr Parker first approached Mr Scahill and that the loan was to Mr Parker. I will deal with that issue shortly. However, it is first relevant to note the additional albeit rather limited documentary evidence about the loan.

9. [159]

   There is first the handwritten contemporaneous note prepared by Mr Scahill. The substance of that document is set out at paragraph [43] above. There is then a bank account statement in the name of Ms Oliver showing the deposit of $200,000 which, it is agreed, is the $200,000 lent by Mr Scahill.

10. [160]

    So far as the witnesses’ competing recollections are concerned, I approach this issue mindful that the events in question occurred many years ago and that they were on any view quite informal interactions. It would be unrealistic to suppose that anyone would have a completely accurate memory of everything that was said and done over 10 years ago in these circumstances. To their credit, each of the witnesses has candidly acknowledged the limitations in their memory and has instead confined themselves to their recollections of what they say are the salient aspects of what occurred.

11. [161]

    I am also well aware that all of the witnesses who gave evidence about this issue have been convicted of serious criminal offences relating in some way to the events in question. All have been sentenced to custodial sentences in connection with the circumstances in which the loan was repaid.

12. [162]

    Those offences are all serious, some more than others. In Mr Parker’s case, he is still serving a very lengthy custodial sentence for gravely serious drug importation offences. Both Mr Scahill and Ms Oliver were convicted on the basis of how they dealt with the proceeds of crime.

13. [163]

    Although serious, and although it is appropriate that I subject the evidence to a higher than usual degree of scrutiny, I accept that none of the offences are what might be called a classic offence of dishonesty. I am not prepared to reject any witness’s account out of hand because of their convictions.

14. [164]

    The evidence does not allow me to draw any conclusions about whether the making of the loan, as opposed to its repayment, was affected by any kind of illegality. The parties assured me that at least as far as they were aware, the police had been interested in the cash used to pay the loan back and that they were not aware of the police having any particular interest in the making of the loan in the first place.

15. [165]

    So far as the reliability of the witnesses’ accounts is concerned, the fact that their dealings in early 2013 had such life altering consequences for them is bound to affect their perception of those events, no doubt in ways that may be difficult to discern. I have therefore given particularly careful consideration to the way the witnesses gave their evidence and to their demeanour in the witness box.

16. [166]

    I have already made some observations above as to the general reliability of the plaintiffs’ evidence. Their evidence was subjected to a fairly serious attack as being recent invention but, as I have found by reference to quite independent sources, was actually proven to be generally reliable. It is also relevant that neither Mr Parker nor Ms Oliver purported to have a comprehensive or detailed recollection of the circumstances in which the loan was made. In fact, in paragraph 13 of her first affidavit (set out at [28] above), Ms Oliver candidly states that she cannot recall most of the detail relating to the making of the loan, save for one or two salient matters.

17. [167]

    The defendants tendered a document signed by Ms Oliver’s brother in which he declared that he had lent her $100,000 for the purpose of purchasing the Wedderburn property. This was untrue. Ms Oliver accepted that it was dishonest. However, the question of how and when the document was created and what, if anything, it was used for, was not explored at all. I have no way of knowing whether Ms Oliver or anyone else sought to deploy the document in any way. It was not for example suggested that she or anyone else ever showed it to the police, to a lender or to the former Mrs Parker. The fact that she admitted any involvement in its production is a matter which counts against her credit. However, given the basic lack of evidence as to her involvement and the other matters I have mentioned, I cannot accept the submission that it makes her evidence generally unreliable. It heightens my vigilance, but it does not materially alter my assessment of her credit.

18. [168]

    I am unable to be quite so positive in my assessment of Mr Scahill’s reliability as a witness to these events. At an early point in his cross-examination, the following exchange occurred:

19. [169]

    This, it was suggested, only burnished his reliability because it demonstrated that the experience of being incarcerated as a result of lending money to Mr Parker had rather focused his mind and kept his memory clear.

20. [170]

    I do not see it quite that way. For a start, it is a highly self-serving account of what actually occurred. In 2013, Mr Scahill was an experienced accountant who lent $200,000 in cash without keeping any formal record of the transaction, and accepted repayment in cash a short time later – again without a record –from a man he barely knew in circumstances which, he eventually accepted, involved him being (criminally) recklessly indifferent to whether the cash was the proceeds of crime. I cannot accept that the misfortune that has befallen him can fairly be characterised as being an injustice suffered “for the privilege of believing” Mr Parker’s “story”. The fact that Mr Scahill would attempt to paint himself and his evidence in that way is a matter which gives me pause. It could suggest that he is rather embittered and that this has coloured his recollection.

21. [171]

    If this were the only matter, I would put it to one side. However, there are other matters. Mr Scahill was confronted with his AFP record of interview in which he quite clearly referred to the loan of $200,000 as having been made to Ms Oliver, not Mr Parker. Mr Scahill was not able to satisfy me that there was a good explanation for why he would tell the AFP that the loan had been made to Ms Oliver, but he would tell the Court here that the loan was made to Mr Parker. His evidence was to the effect that it was a lengthy interview and that this was not something that was of particular significance at the time.

22. [172]

    I do not accept that explanation. The interview was conducted in 2014 quite soon after the cash had been seized. It was at a time when these events were far fresher in his mind than they are now. One of the Federal Agents conducting the interview said at the outset that the interview related to “an allegation of money laundering, and specifically to do with [Mr Parker] and your dealings with him.” The agent continued:

23. [173]

    I cannot accept that Mr Scahill considered the nature of his dealings with Mr Parker to be anything other than absolutely central to what he was being interviewed by the AFP about. Mr Scahill’s evidence about this matter reflects poorly on his credit as a witness.

24. [174]

    The defendants also invited me to have regard to the overall probabilities in reaching my conclusion as to whether the loan was made to Ms Scahill or Mr Parker. Why, it was submitted, would Mr Scahill lend $200,000 to Ms Oliver, who was a recruitment consultant earning about $75,000 per year? It was far more likely, so the argument went, that Mr Scahill would lend $200,000 to Mr Parker, a baggage handler earning in excess of $100,000 per year and who, apparently, had told Mr Scahill that he was expecting a sizeable injury compensation payment.

25. [175]

    On the other hand, said the plaintiffs, Mr Parker had known Ms Oliver for longer. He spent as much time in the offices of her recruitment firm as he did in his own accounting firm. He had only met her partner, Mr Parker, a matter of weeks prior to the transaction.

26. [176]

    I do not find any of these considerations to be very useful in making my decision. At the end of the day, it is difficult to account for Mr Scahill’s decision to lend $200,000 to either of these plaintiffs as being explicable by a consideration of everyday probabilities. This is especially so when one considers the terms of the loan (on demand, no interest, no security) and the manner in which it was advanced (out of a trust account, into Ms Oliver’s account, but with no written agreement and no accounting).

27. [177]

    For the reasons stated above, I prefer the evidence about the making of the loan given by Ms Oliver and Mr Parker to that given by Mr Scahill, to the extent their accounts are in conflict. Taken together with the limited documentary evidence, this evidence leads me to conclude that Mr Scahill lent the $200,000 to Ms Oliver, not to Mr Parker. To the extent these funds were withdrawn and applied towards the purchase price of the Wedderburn property, it was an application of Ms Oliver’s own funds, not of funds which she held on behalf of Mr Parker.

28. [178]

    The position is far less clear in relation to amounts in excess of $200,000 which Ms Oliver used to acquire bank cheques for the purchase. It is to be recalled that Ms Oliver claims to have contributed a total of about $300,000 of her own money towards the purchase price, including the $200,000 borrowings. In relation to these additional amounts totalling around $100,000, the evidence of Mr Parker and Ms Oliver is in clear conflict.

29. [179]

    There is no doubt that the additional cash was withdrawn from Ms Oliver’s bank account. But Ms Oliver’s evidence as to how the money came to be in her account was at best highly uncertain. She had no more than a “vague recollection” of what Mr Parker said at the time (set out at paragraph [30] above) which, in her memory, related to the sum of $70,000 which she believed he had deposited. Because she believed her total contribution to be $300,000 and because she believed she could account for $270,000 of that amount (being the loan plus the $70,000 deposited by Mr Parker, just mentioned), she deduced that the balance of about $30,000 must have been from her savings. She accepted that her evidence as to having contributed $30,000 from her own funds was a “deduction” of this kind and not an actual recollection.

30. [180]

    Mr Parker’s evidence, on the other hand, was that Ms Oliver had only contributed $200,000 towards the purchase, not $300,000. He was asked several questions about this and his answers were consistent. He knew that the balance of cash which Ms Oliver used to obtain the bank cheques had been put into her account by him but he nevertheless did not consider that cash to represent a contribution by her to the purchase price. He therefore did not consider that these were funds which he gave her. Nor did he suggest that the funds were loaned.

31. [181]

    If I were to consider the question in isolation, I would probably find that a person who places funds into the bank account of their new partner in order to hide those funds from their litigious former spouse was probably making a gift. But the fact that Ms Oliver’s recollections are so indistinct, and the fact that Mr Parker’s more distinct recollections do not support this conclusion, mean that I am not satisfied on the balance of probabilities that these additional funds were a gift from Mr Parker to Ms Oliver. I also cannot be satisfied that they were lent to her in the expectation that they would be paid back. I therefore cannot be satisfied that the funds in excess of $200,000 which she contributed from her account towards the purchase of the Wedderburn property were funds that she held for her own benefit.

32. [182]

    The evidence about the payment of the deposit is no better. Ms Oliver’s bank statement shows three deposits into her account shortly prior to the withdrawal for the deposit. These deposits totalled approximately $65,000. Ms Oliver gave no evidence as to where these amounts came from. She did not suggest that they were her savings, nor did she borrow them. They are clearly not payments of wages, since she was earning about $75,000 per year at that point.

33. [183]

    In an affidavit sworn very shortly prior to the proceedings, Ms Oliver said that looking at the bank statement and seeing the withdrawal (which I infer was for the deposit) did not help her have any recollection one way or the other about the circumstances in which the deposit was paid. She made no mention of the deposits shortly prior to that withdrawal.

34. [184]

    In these circumstances, I am not persuaded that the cash which Ms Oliver contributed to the deposit was hers to spend. It was in the same category as the other cash which Mr Parker caused to be deposited into her account in anticipation of the purchase of the Wedderburn property but which he did not consider to represent Ms Oliver’s contribution. In other words, it was neither a gift nor a loan. It was cash which she held for him for the purpose of being contributed to the purchase of the Wedderburn property.

The resulting trust claim

1. [185]

   My conclusion that Ms Oliver contributed $200,000 towards the purchase of the Wedderburn property attracts the operation of the presumption referred to in cases such as Calverley v Green. The presumption is that, in line with her contribution of $200,000 towards the total $630,000 purchase price, Mr Parker intended her to have a 31.75% interest in the Wedderburn property.

2. [186]

   That presumption will yield to evidence of a contrary intention held at the time of purchase.

3. [187]

   The defendants’ submissions about this issue are difficult to disentangle from what they submitted in relation to the question of whether Ms Oliver relied to her detriment on Mr Parker’s representations as to her interest. That, no doubt, reflects the way the case was put by Ms Oliver which as I have mentioned put the estoppel case ahead of the resulting trust case. As to that matter, the defendants submitted that the fact that funds came from Ms Oliver’s account did not automatically mean that the funds were hers or that the payment amounted to relevant detriment. They pointed out that the funds were repaid immediately afterwards by Mr Parker and that, in substance, Ms Oliver did not really demonstrate that she had really been financially put out by any of this.

4. [188]

   I will therefore proceed cautiously and treat the defendants’ submissions as involving at least these propositions: (a) the $200,000 was not really Ms Oliver’s because the loan was little more than an empty formality and because the funds were immediately paid back by Mr Parker; and (b) the circumstances in which Ms Oliver contributed $200,000 towards the property provide a basis to depart from the presumption that otherwise arises.

5. [189]

   The first proposition recalls a similar submission made in Calverley v Green. Relevantly, Gibbs CJ said of Ms Green at 252:

6. [190]

   Likewise, Ms Oliver’s borrowing of funds and subsequent contribution to the purchase price were not empty formalities that can be put to one side. The fact that she borrowed and contributed to the purchase of the property, and that Mr Parker positively wanted her to borrow and contribute with the result that she should be recognised as an owner, are facts which lead me to the very same conclusion about the parties’ intentions to which the presumption otherwise gives rise.

7. [191]

   As to the second proposition, it is important in this area to keep in mind what is really in issue. So far as the purchase price resulting trust is concerned, I am specifically concerned with the parties’ intentions at the time of purchase. Did Ms Oliver intend Mr Parker to have the whole of the legal and equitable interest notwithstanding her contribution? Did Mr Parker intend to hold the property for his benefit only?

8. [192]

   My conclusion about what Mr Parker said and what his intentions were in the context of the express trust case are therefore also relevant here. My conclusion was that he expressly declared a trust to the effect that they would be equal owners of the property. There is nothing in that conclusion, or the evidence on which it was based, that supplies a reason to depart from the presumption that arises as a result of Ms Oliver’s contribution of $200,000 towards the purchase price.

9. [193]

   It is true that Ms Oliver’s contribution to the purchase price was sourced in a loan taken out in unusual circumstances and with little involvement on her part. It is also true that it was paid back weeks later in full by Mr Parker in circumstances about which Ms Oliver has no meaningful recollection. A real question arises as to whether these facts would count as detrimental reliance sufficient to found her estoppel claim. But here in the context of the resulting trust claim, the issue is different. It is whether the factual presumption as to the parties’ intention should be displaced having regard to other evidence as to their actual intention. I find that it cannot be.

10. [194]

    I therefore find that the resulting trust claim is made out and that Mr Parker holds the Wedderburn property as to 31.75% for Ms Oliver as an equitable tenant in common.

The Constructive trust claim – proprietary estoppel

1. [195]

   Mr Parker quite clearly did make representations to Ms Oliver as to her ownership interest in the property. I have made findings to this effect in the context of the express trust claim. Ms Oliver relied on those representations. She asked Mr Scahill for a loan and then used the whole of the borrowed funds to contribute to the purchase price.

2. [196]

   She also continued to meet mortgage payments over several years after Mr Parker was arrested. The evidence shows that she made contributions totalling $87,470.21 towards the Members Equity mortgage between 2015 and 2018. However, as already mentioned, Ms Oliver expressly disclaimed any reliance on this later evidence to support her constructive trust claim. The reason for this stance, it was submitted, was said to lie in what was decided in Calverley v Green.

3. [197]

   Ordinarily, I would readily find that a plaintiff who borrowed $200,000 to contribute to the purchase of residential property in their spouse’s or partner’s name on the strength of a representation that they would own half of it had relied to their detriment on that representation. I would readily make the same finding if the plaintiff had used their savings in the same circumstances.

4. [198]

   This, however, is not an ordinary case. Ms Oliver recalls almost nothing about the loan, save that it was her who asked Mr Scahill for it. She has absolutely no recollection of any term of the loan. She gave no evidence as to how she thought she might be able to repay it. If, as seems most likely, it was repayable on demand, she can have had no expectation whatsoever that she would actually be able to repay it if demand was made.

5. [199]

   I cannot entirely ignore that in the events which happened, Ms Oliver did not repay the loan or any part of it. It was paid in full by Mr Parker a very short time afterwards. Although Mr Parker maintains that the funds used for payment were not the proceeds of crime, that is clearly not a widely held view.

6. [200]

   My hesitation about accepting that there has been detrimental reliance here is not simply because Ms Oliver did not in fact repay the loan, nor is it because the loan was repaid using the proceeds of crime (if that be the case). My hesitation is as to whether Ms Oliver has discharged her evidentiary burden on this issue. It is not enough that Ms Oliver is able to characterise the source of the $200,000 as being a transaction which the law calls a loan. That is something which has consequences for what the parties intended so far as title to the property is concerned, as explained above. Here, however, I need to be satisfied that the things which Ms Oliver did in reliance on the representations amounted to real detriment to her. In Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [1], the plurality approved the statement of Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394 (Verwayen) at 409; 1990] HCA 39 that titles such as proprietary estoppel and estoppel by acquiescence are all:

7. [201]

   Their honours also said at [77]:

8. [202]

   When that same question is adapted to the facts here, I do not reach the same conclusion as to unconscionability as was reached in Sidhu v Van Dyke. If Mr Parker were to have said to Ms Oliver in March 2013 that he was not willing to recognise her as a 50% owner of the property, she may well have been most disappointed. But what real difference would it have made in terms of Ms Oliver’s economic position? It is highly likely that $200,000 would still have been deposited into her account from Mr Scahill and it would still have been used, together with the other funds put into her account by Mr Parker, to obtain bank cheques for settlement. It is most unlikely that Mr Scahill was only willing to lend $200,000 because it was Ms Oliver asking. Based on his evidence in these proceedings, he would have been just as happy to lend to Mr Parker. In all likelihood, the transaction would have occurred in an almost identical fashion whether or not Mr Parker was willing to honour his promises about Ms Oliver’s ownership.

9. [203]

   Reliance and any associated unconscionability are not very difficult to show in the usual case. The plaintiff can point to the typically onerous obligations to which he or she has become subject to repay the loan. Or they can demonstrate that they have spent their own resources in some other meaningful way. Here, despite my general willingness to accept Ms Oliver’s evidence, I am not satisfied that she is able to demonstrate detrimental reliance sufficient to justify the remedy which she seeks, at least by reference to the $200,000 loan.

10. [204]

    If I am wrong in my conclusion about whether the contribution of $200,000 amounted to detrimental reliance, it is necessary to consider whether the appropriate remedy would be the constructive trust for which Ms Oliver contends. Her case is that her reliance (ie, her contribution of $200,000 towards the $630,000 purchase price) entitles her to a 50% interest in the property, being what was promised.

11. [205]

    A plaintiff who makes out a case of detrimental reliance on a promise as to ownership of property is ordinarily entitled to relief sufficient to give effect to that promise. In Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10, the Court rejected an argument that the appropriate remedy in such a case is one which is limited to the reversal of the plaintiff’s detriment: see especially at [33] to [34], [42] and [50].

12. [206]

    In Sidhu v Van Dyke at [83], the plurality also approved what Deane J said in Verwayen at 441, namely:

13. [207]

    I do not read their Honours’ approval of that passage as reviving anything said prior to Giumelli v Giumelli as to the need only to grant such relief as reverses the detriment suffered by the plaintiff. Rather, as their honours said of the facts in Sidhu v Van Dyke at [84]:

14. [208]

    That however was not the case in Sidhu v Van Dyke. Ms Van Dyke had made enormous, life-changing decisions on the strength of the promises made by Mr Sidhu.

15. [209]

    I do not characterise anything done by Ms Oliver in reliance on what Mr Parker said as being particularly life-changing. And as I have indicated, I am not satisfied that she did anything of real financial consequence (for her) in relation to the $200,000 loan on the strength of Mr Parker’s promises. It is true she was the borrower. But as to whether that really mattered to her at the time, it is not possible to say on the evidence before me. The impression I have is that she never gave the loan from Mr Scahill much thought at all. She certainly never appears to have given any thought as to how she would pay it back.

16. [210]

    I would regard the imposition of a constructive trust on the terms for which Ms Oliver contends as being quite out of proportion to the detriment she suffered.

17. [211]

    In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84, Allsop P, with whom Giles JA agreed, pointed out at [4] that although proportionality is an undeniably relevant consideration in fashioning the appropriate relief in a case of estoppel, it is not a necessary constitutive element of the plaintiff’s cause of action. It is not a consideration to be elevated above others.

18. [212]

    Handley AJA, with whom the other members of the Court agreed, said:

19. [213]

    Subsequent authority has affirmed this approach. In Moore v Aubusson [2020] NSWSC 1466, Ward CJ in Eq said at [421]-[423]:

20. [214]

    When considering the proportionality of the relief sought, the authorities have referred to whether it would be “wholly disproportionate” to the detriment suffered (see Ambridge Investments Pty Ltd (in liquidation) v Baker [2010] VSC 59 at [591]-[594], per Vickery J; Verwayen at 413, per Mason CJ) or “out of all proportion” to the detriment (see Priestley v Priestley [2017] at [164] per Emmett AJA, McColl and Macfarlan (on that point) JJA agreeing).

21. [215]

    In Priestley v Priestley [2017], Emmett AJA (with whom McColl and Macfarlan (on this point) JJA relevantly agreed) said that (at [164]):

22. [216]

    In the present case, I have found that Mr Parker made definitive statements about his ownership of the Wedderburn property. He made it clear that so far as he was concerned, Ms Oliver was entitled to a half ownership share and that in time the title would reflect this.

23. [217]

    On the other hand, Ms Oliver’s contribution has been relatively much less than that. If I were to grant the relief sought, Ms Oliver would find herself the 50% owner of a property to which she contributed 31.75% of the price. When her contribution is assessed in terms of real financial detriment to her, it is far less.

24. [218]

    I would therefore find that Ms Oliver is entitled to 31.75% of the Wedderburn property by reason of her contribution of that percentage of the purchase price even if her contribution really did amount to detrimental reliance. I consider that the additional remedy Ms Oliver seeks, namely a constructive trust making her the 50% owner, would be out of all proportion to the detriment she suffered. It is material that the alternative would not be that Ms Oliver is stuck with the state of affairs as indicated by the legal title; it is that she would be left with an interest that corresponds to her contribution to the purchase price.

25. [219]

    As already mentioned, Ms Oliver expressly disclaimed any reliance on the fact that she made mortgage payments on the property. The stated reason for this stance was the decision in Calverley v Green.

26. [220]

    Given the express disclaimer, it is not strictly necessary to decide whether Ms Oliver was correct to adopt this position. But because I do not read Calverley v Green to stand in the way of Ms Oliver contending that the mortgage payments she made over several years amounted to detrimental reliance sufficient to found an estoppel, I will at least outline my reasons.

27. [221]

    At issue in Calverley v Green was the contended operation of the presumption that arises when a person contributes part of the purchase price of property held by another; and the contended operation of the presumption of advancement. Both of those presumptions are as to the parties’ intentions at the time of purchase. Both presumptions may be rebutted by evidence of intention. The position was explained in Bosanac v Commissioner of Taxation (2022) 2754 CLR 37; [2022] HCA 34 at [12]-[14].

28. [222]

    In Calverley v Green, in addition to pointing out his contribution towards the initial purchase price, Mr Calverley relied on the fact that he had also subsequently paid far more of the mortgage than Ms Green. These later contributions, so he argued, were evidence of his relatively greater contribution to the purchase price of the property. It was this proposition that was rejected by the Court: see Mason and Brennan JJ at 262-263.

29. [223]

    Claims of proprietary estoppel, however, give rise to different considerations. In such cases, it is open to a plaintiff to contend that their later contribution to the costs associated with holding the property are matters to be taken into account in determining their detrimental reliance. This is because the issue in dispute in such cases is not the intention of the parties at the time of purchase, as it was in Calverley v Green, but the injustice of allowing the legal owner to depart from a promise where it has subsequently been relied on to the plaintiff’s detriment.

30. [224]

    It was therefore open to Ms Oliver to contend in these proceedings that the mortgage payments on the Wedderburn property which she made over many years amounted to detrimental reliance. Calverley v Green explains why she could not call those payments in aid to support her resulting trust case; but it says nothing about the relevance of those payments to her constructive trust case.

31. [225]

    Had it been necessary to consider this issue, I would have accepted that the mortgage payments were a form of detrimental reliance on Mr Parker’s representations but that the reliance was not sufficient (or sufficiently detrimental) to justify the relief which Ms Oliver seeks.

32. [226]

    Ms Oliver’s evidence showed that between 2015 and 2018, she paid a total of $87,470.21 towards the Members Equity mortgage over the Wedderburn property. At the same time, she paid a total of $65,117.60 towards the mortgage on the Bradbury property. All of these funds seem first to have been paid by Ms Oliver into offset accounts and, from there, towards the mortgage accounts. There was no evidence as to where Ms Oliver obtained the funds which she paid towards the mortgage on the Bradbury property.

33. [227]

    As to the funds she paid towards the Wedderburn mortgage, she gave evidence in cross examination that she made those payments in order “keep the property”. She agreed that she did not consider the payments to be a loan to Mr Parker. In re-examination, she essentially repeated her affidavit evidence in chief on this issue, namely that she did not really give any thought at the time to the character of the mortgage payments.

34. [228]

    She also explained that of the funds she paid towards the mortgage, $40,000 was given to her by Mr Parker’s father-in-law. She agreed that it was given to her to contribute to the mortgage but she also said that it was up to her what she used it for. Even so, she did not dispute that she was given it to help with the mortgage. The rest seems to have been sourced from a small inheritance and from an injury compensation award.

35. [229]

    On the other hand, I accept that Ms Oliver spent several years paying the mortgage on her partner’s property while he was in prison. She probably did so on the understanding that what he had said all along about her ownership interest still held good. Of the approximately $87,000 which she paid to Members Equity, $40,000 was given to her in order to pay towards the mortgage.

36. [230]

    If I were to take all of these circumstances into account, the same considerations of proportionality discussed above would have led me to the same conclusion, namely that it would be out of all proportion to her real detriment to declare that she is entitled to 50% of the Wedderburn property.

Subrogation

1. [231]

   Ms Oliver also seeks to be subrogated to the rights of Members Equity as mortgagee “in respect to the payments she made in discharge” of the Members Equity mortgage.

2. [232]

   Ms Oliver accepts that the weight of academic opinion seems to be that there can generally be no subrogation unless the whole of the secured debt has been paid off. She submits, however, that the correct position is that it is only the enforcement or exercise of a right of subrogation that must await the payment out of the security and that a right of subrogation may in fact crystallise before that occurs. She submits that it is appropriate here to order that she be subrogated to the rights of Members Equity but that I make clear that she is not entitled to enforce any such right until such time as the Members Equity mortgage has been discharged.

3. [233]

   I was referred to State Bank of New South Wales v Geeport Developments Pty Ltd (1991) 5 BPR 11, 947 where Cohen J held that a right of subrogation can arise from part payment of a security. His Honour said:

4. [234]

   Black J noted those observations in Padovan and anor v MGG Group Pty Ltd (in liq) [2011] NSWSC 1080. His Honour accepted that it was in principle possible to make an order for subrogation in relation to a secured lender whose debt had not yet been paid in full by the sale of the property over which security was held, but declined to do so until such time as the lender had been heard: see paragraph [31]. I also note that that was a case in which the land over which the security was held was sold and where the proceeds were insufficient to discharge the guaranteed debt. It was not a case where the security remained on foot.

5. [235]

   In Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753, Robb J reviewed each of these authorities and concluded that:

6. [236]

   These authorities support Ms Oliver’s contention that an order for subrogation may be made in circumstances where the original mortgagee’s debt has not been fully repaid, but that that right cannot be exercised until the whole of the debt has been paid.

7. [237]

   What is less clear is whether Ms Oliver is entitled to be subrogated to the rights of the mortgage in the first place. As I have already concluded, she is entitled to be recognised in equity as the 31.75% owner of the property.

8. [238]

   Ms Oliver’s evidence as to the circumstances in which she made payments on the Members Equity mortgage was largely uninformative, in that she said she really did not turn her mind to the basis on which she was making the payments. She did not turn her mind to whether the amounts were a loan, a gift or a payment of any other character. Mr Parker gave no evidence that would assist me to understand the basis on which Ms Oliver made these payments.

9. [239]

   Ms Oliver points out that a right of subrogation may arise notwithstanding that the person making the payments had no positive intention to be secured by the original security. The absence of a common intention on the part of the borrower and the lender that the lender should have security has been held not to be fatal to the lender’s later claim to subrogation: Cheltenham & Gloucester Plc v Appleyard [2004] EWCA Civ 291 at [40], quoted with approval in Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393 at [59].

10. [240]

    However, the facts here are in a rather different category. Although I have a somewhat unclear picture as to why the payments were made at all, the most likely possibilities are these: either Ms Oliver was paying Mr Parker’s mortgage as a favour to him using funds provided by third parties for Mr Parker’s own benefit; or she was using those funds in the understanding that the payments were for her and Mr Parker’s joint benefit, recognising that she was an owner of an equitable interest in the property. What is most unlikely is that she was making the payments in the hope or expectation that she would be able to recover them from Mr Parker and, failing that, that she would enforce a security by selling the Wedderburn property.

11. [241]

    In Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44 at [90], Gummow, Hayne, Heydon, Kiefel and Bell JJ said:

12. [242]

    In Aged Care Services Pty Ltd v Kanning Services Pty Ltd, Gleeson JA referred to the presumption which arises where a third party pays off a mortgage, namely that “the mortgage shall be kept alive for his own benefit”: [52] and the cases there cited. His Honour also referred to the reasons of Kearney J in Cochrane v Cochrane (1985) 3 NSW LR 403 where his Honour said at 405:

13. [243]

    As Gleeson JA also explained, the intention of the payer is clearly relevant to the question of whether any presumption has been rebutted: [63].

14. [244]

    I accept that Ms Oliver is a “third party” to the mortgage in the sense in which that expression has been used in the authorities. The fact that she has paid off some part of the mortgage gives rise to the presumption to which the cases have referred. However, the evidence displaces that presumption here.

15. [245]

    There are three somewhat overlapping matters that are of particular relevance. The first is that the evidence shows that Ms Oliver had no intention of ever recovering these payments from Mr Parker, either on an unsecured or secured basis. She certainly did not consider the payments to be a loan to Mr Parker. At best, she gave the matter no thought. The fact that she saw herself as an owner of the property and that she kept paying the mortgage in order to keep the property is inconsistent with her claim now to be subrogated to the rights of the mortgagee.

16. [246]

    The second matter concerns the fact, discussed above, that a significant proportion of the funds Ms Oliver used to pay the mortgage were given to her by Mr Parker’s father-in-law. Ms Oliver invited me to treat these funds as if they were simply her own and that she should be as free to recover them from Mr Parker by enforcing a security to which she was subrogated as if she had obtained the funds from any other source. However, the fact that she was given the funds by Mr Parker’s father-in-law inevitably bears on the question of whether it would be inequitable to allow Mr Parker to deny Ms Oliver a security interest in the property. To the extent of those payments, at least, Mr Parker has not really gained an advantage over Ms Oliver in a way that binds his conscience in the sense explained by Gleeson JA in Aged Care Services v Kanning.

17. [247]

    The third matter concerns the fact that the Members Equity mortgage has not been discharged. I can accept that as a matter of principle I am able to make an order for subrogation in these circumstances, but it does not follow that such an order will always be appropriate. Here, there is no evidence as to the extent to which Mr Parker repaid the mortgage prior to his arrest (or otherwise) and there is no evidence as to the remaining indebtedness. The question of whether and the extent to which the payments which Ms Oliver made entitle her to an order for subrogation is not able finally to be determined until those matters are known. Ultimately, the question will be whether, when the mortgage is discharged, it would be unconscionable of Mr Parker to deny that Ms Oliver has a security interest in the property to secure repayment of the amounts she contributed to the mortgage. The answer to that question will need to take account of all payments made by Mr Parker or on his behalf up to the time of the mortgage being discharged. It will also need to take account of any payments made by anyone else, including Ms Oliver.

18. [248]

    I therefore decline to make an order that Ms Oliver be subrogated to the security of Members Equity in relation to the payments she made discharging the mortgage.

Is Mr Scahill entitled to judgment in relation to the $200,000?

1. [249]

   The main issue in the 2022 proceedings is whether the $200,000 which Ms Oliver borrowed from Mr Scahill is due and payable notwithstanding that Mr Parker paid $200,000 (or possibly $220,000, although nothing seems to turn on that issue) in cash to Mr Scahill in April or May 2013 in purported repayment of that loan.

2. [250]

   I have already referred in broad terms to the way in which this issue arises but it is necessary to identify some additional matters.

3. [251]

   At the time Mr Parker paid $200,000 to Mr Scahill, Mr Scahill had already been harassing him for payment for about a month. There is no doubt that Mr Scahill had made demand for payment through Mr Parker. When Mr Parker paid Mr Scahill in cash, he said that he was repaying Ms Oliver’s loan. After that point, Mr Parker’s demands for payment ceased. He accepted payment in satisfaction of the payment obligation. All parties, at that point, understood that the loan had been repaid. I would reach the same conclusions, adapted to the facts, regardless of whether the loan had been to Ms Oliver or Mr Parker.

4. [252]

   The loan was undocumented and payable on demand. Mr Scahill disclaimed any reliance on any implied term in the loan agreement, such as a covenant as to how the borrower would obtain the funds. His case was put on the limited basis that the original payment obligation was “revived” after the AFP seized the $200,0000 from Mr Scahill’s possession some 15 months after he had received it.

5. [253]

   As to the circumstances in which the $200,000 was seized, the evidence shows the following.

6. [254]

   In addition to the payment of the $200,000 which is the subject of the 2022 proceedings, by 24 July 2014 Mr Parker had also deposited a total of $473,350.75 into the Scahill & Co trust account. These deposits related to an agreement between Renwick Street and Mr Parker whereby the former would “design, supervise and temporarily fund construction of a residential dwelling” on the Wedderburn property.

7. [255]

   On 24 July 2014 the AFP executed a search warrant at the premises of Scahill & Co. Having become aware of the $473,350.75 in the trust account, the officers informed Mr Scahill that they would require those funds to be paid to the Official Trustee. The AFP subsequently took steps to obtain orders from Hulme AJ pursuant to s 19(1)(b) of the Proceeds of Crime Act 2002 (Cth) to prevent any disposal of those funds and pursuant to ss 38 and 39 of that Act to require the funds to be paid to the Official Trustee. Those orders were made on 1 August 2014.

8. [256]

   In the meantime, however, Mr Scahill “realised that cash being held in the safety deposit boxes…., which included cash held on behalf of clients, was at risk of being confiscated by the AFP”. He claims that he “was concerned that if confiscated [he] would be personally responsible for having to pay the clients back”.

9. [257]

   The next day, being 25 July 2014, he therefore went to the banks where the safety deposit boxes were located and collected the cash from each safety deposit box. He also collected the $200,000 in cash that Mr Parker had given him in about April or May 2013. He did not say why he took the $200,000 from the safety deposit box. It was clearly not in the category of cash which had been collected from clients and which, if seized, he would have to repay.

10. [258]

    He placed all of this cash into a light blue backpack and put it on the back seat of his car. He was intercepted by the AFP on his way back to the office. The AFP were in possession of a separate search warrant that authorised their search of his car. By virtue of s 3F(2) of the Crimes Act 1914 (Cth), that warrant authorised the officers to seize the cash in Mr Scahill’s possession and they did so.

11. [259]

    Mr Scahill was charged and convicted of knowingly dealing with the proceeds of crime. Following his conviction, Mr Scahill agreed to consent orders pursuant to which certain property was to be forfeited to the Commonwealth. Correspondence identifying the substance of those consent orders shows that an amount of $194,413.30, among other amounts, was forfeited to the Commonwealth pursuant to s 38(2) of the Proceeds of Crime Act 2002.

12. [260]

    Mr Scahill explained that the sum of $194,413.30 was the balance of the $200,000 received from Mr Parker, but less the sum of $5,586.70 which he was able to persuade the AFP was required to meet claims of clients.

13. [261]

    Mr Scahill’s conviction was overturned and a new trial was ordered: Scahill v DPP (Cth) [2019] NSWCCA 190. Mr Scahill subsequently entered a plea on the basis that the four counts on the indictment be withdrawn and that they be rolled up into a single count of dealing with money or property that was the proceeds of crime, and was reckless as to the fact that the money or property was the proceeds of crime.

14. [262]

    There is no dispute that the original charges and the charges to which he ultimately pleaded guilty related, at least in part, to the circumstances in which Mr Scahill received the $200,000 from Mr Parker.

15. [263]

    Mr Scahill has not sought any order pursuant to Part 2.2 Division 5 of the Proceeds of Crime Act 2002, the part of that Act that contemplates the return of proceeds in certain circumstances.

16. [264]

    Mr Scahill’s argument was that the “confiscation” of the $200,000 pursuant to the Proceeds of Crime Act 2002 had the effect of reviving the original obligation to repay. This argument was put chiefly by reference to the perceived injustice of allowing Mr Parker to use the proceeds of crime to repay the loan, but then leaving Mr Scahill out of pocket because of Mr Parker’s criminal activity.

17. [265]

    The only authority to which Mr Scahill referred to support his argument was to some commentary on the effect of dishonoured cheques, bills of exchange or letters of credit: Goode on Payment Obligations in Commercial and Financial Transactions (3rd Ed, 2016, Sweet & Maxwell). The particular passage referred to is at [2-23]:

18. [266]

    The authority cited for that proposition is Re Romer & Haslam [1893] 2 QB 286 and Michael Aronis & Aronis Nominees Pty Ltd (trading as Welland Tyrepower) v Hallett Brick Industries Ltd [1999] SASC 92. For a similar proposition in the context of letters of credit, the authors referred to Northwestern Shipping & Towage Co Pty Ltd v Commonwealth Bank of Australia (1993) 118 ALR 453, a decision of Gummow, Hill and Cooper JJ in the Full Federal Court.

19. [267]

    Neither the passage in Goode nor the authorities to which the authors refer support the proposition for which Mr Scahill contends here. The issue in all of those cases, as paragraph [2-23] explains, is whether the terms of the underlying contract contemplate that that the payment obligation can be discharged by a negotiable instrument that is subsequently dishonoured. In the case of cheques and letters of credit, it is generally presumed that they cannot.

20. [268]

    That, however, is not this case. Mr Scahill does not contend for any presumed or implied term of the loan agreement. Nor is there any basis upon which a similar term could be implied having regard to the circumstances in which the loan was made.

21. [269]

    In the usual case, as the authors of Goode explain at paragraph [2-22]:

22. [270]

    Mr Scahill has made no submission that casts any doubt on the proposition that acceptance of a tender of legal tender discharges the obligation to pay. That proposition was explained in Goode at pages 9 and 26 and in Mann and Proctor on the Law of Money (8th Ed, 2022, Oxford University Press) at [7.04].

23. [271]

    Mr Scahill’s argument depended to a high degree on the circumstance that the physical cash which Mr Parker used to repay the loan was the same physical cash which was seized by the AFP. The focus on the physical cash is a distraction here. When Mr Scahill received the physical notes in repayment of Ms Oliver’s loan he also received the associated rights inherent in the notes as legal tender. This was explained in Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33 at [31] by French CJ and Hayne JJ:

24. [272]

    That case concerned the sale of foreign currency, but the relationship between the physical notes and the associated rights is no different in the case of tender of cash by a borrower in repayment of a loan.

25. [273]

    The particular danger in equating a supply of banknotes to a supply of goods was explained by Heydon J at [54]:

26. [274]

    In the present case, Mr Scahill received the banknotes and took the benefit of all of the associated rights to use them. He was at that point free to use those rights and in fact, to some extent, he did do so: he persuaded the AFP that he required some of the $200,000 to meet his clients claims. He would equally have been entitled to take the banknotes to the racetrack and bet them on a horse, or to repay his own mortgage, or to spend them in any other way he desired. The fact that he did not do any of these things does not alter the fact that he accepted the cash in discharge of a debt and had the benefit of the associated rights, whether he kept the physical dollars in a bank vault or not.

27. [275]

    It would have been open to Mr Scahill to protect his position by lending on terms commonly seen in commercial loan agreements. Such agreements often require borrowers to make a whole range of representations and to give a whole range of covenants as to, amongst many other things, compliance with laws (including but not limited to such things as modern slavery legislation) and requiring each of those covenants to be true for so long as the loan remains outstanding. Breaches of such terms can be sued on even after the loan is discharged: Tyree, Banking Law in Australia (10th Ed, 2021, LexisNexis) at [3.4.3].

28. [276]

    Mr Scahill took no such protections. Indeed he sought no contractual protection of any kind. He simply advanced cash that was repayable on demand. He was by his own admission criminally reckless in taking cash from Mr Parker in repayment.

29. [277]

    I do not accept that where cash is used to repay a loan and where that cash is forfeited to the Commonwealth pursuant to the Proceeds of Crime Act, there is necessarily some general unfairness to the lender that needs to be ameliorated by reviving the repayment obligation. Mr Scahill has not cited any authority to support that proposition. I do not in any event accept that it will always be the case that the lender is an innocent.

30. [278]

    Mr Scahill submitted that the terms of the Proceeds of Crime Act suggest an intention by Parliament that the underlying obligations of a lender whose cash is forfeited may, or should be, revived upon forfeiture.

31. [279]

    There is nothing in the Act to suggest that the confiscation or forfeiture of property was intended to have any effect whatsoever on the transactions by which the person from whom property is confiscated or forfeited came to possess the property in the first place. It is, after all, a regime for the confiscation and forfeiture of property from a person’s possession. It is a not a regime of garnishment of payment obligations. The stated objects of the Act include to deter persons from committing crimes against the Commonwealth and to undermine the profitability of criminal enterprises: s 5. Those objects, and probably most of the others, would be thwarted by a regime which caused a person to forfeit money which was the proceeds of crime but which, at the same time, revived that person’s right to pursue the borrower for further payment.

32. [280]

    There is as I have noted nothing stopping a lender from securing a contractual right to pursue a rogue who repays a loan with stolen cash. But that is a matter that is entirely outside the purview of the forfeiture provisions of the Act. The existence of such a right might become relevant on an application brought under Part 2.2, Division 5. However, none of those provisions have been invoked here.

33. [281]

    In my view, Ms Oliver’s obligations were discharged when the loan was repaid in April or May 2013. They have not been revived.

34. [282]

    It follows that the originating application in the 2022 proceedings will be dismissed.

Other matters

1. [283]

   I have not found that there was any disposal or transfer of an interest in the Wedderburn property to which s 37A of the Conveyancing Act could apply. The cross-claim in the 2021 proceedings will therefore be dismissed.

2. [284]

   I also do not consider it appropriate to make orders for the transfer of Ms Oliver’s interest in the Wedderburn property to her. I will make a declaration as to the nature and extent of her interest in the property, which will be binding both on the legal owner and anyone claiming an interest in the property. In circumstances where the property remains encumbered by various claims, including claims by the Crime Commission and by an unrelated mortgagee, I do not consider such an order to be appropriate.

Orders

1. [285]

   The orders will be as follows:

2. [286]

   In the 2021 proceedings:

   1. (1)

      Declare that the second defendant holds the Wedderburn property subject to a resulting trust in favour of the plaintiff as to 31.75% as an equitable tenant in common.

   2. (2)

      Otherwise dismiss the amended summons filed 2 February 2022.

   3. (3)

      Dismiss the cross-claim.

   4. (4)

      The first defendant to pay the plaintiff’s costs of the proceedings.

3. [287]

   In the 2022 proceedings:

   1. (1)

      Proceedings dismissed with costs.