FEDERAL COURT OF AUSTRALIA Silvia (Trustee) v Williams [2018] FCAFC 194 Appeal from: Silvia (Trustee) v Williams, in the matter of Williams (Bankrupt) [2018] FCA 189 File number: NSD 435 of 2018 Judges: PERRAM, BARKER AND DERRINGTON JJ Date of judgment: 14 November 2018 Catchwords: TRUSTS AND TRUSTEES – common intention constructive trust – whether registered owner held half interest in matrimonial home as constructive trustee for bankrupt spouse – whether bankrupt made indirect contributions to deposit and equity PRACTICE AND PROCEDURE – whether trial judge should have permitted common intention constructive trust case – whether common intention constructive trust case open on the pleadings – whether respondent prejudiced – where appellant did not seek to amend pleadings Legislation: Evidence Act 1995 (Cth) s 28 Cases cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Baumgartner v Baumgartner [1987] HCA 59; 164 CLR 137 Betfair Pty Limited v Racing New South Wales [2010] FCAFC 133; 189 FCR 356 Browne v Dunn (1894) 6 R 67 Eves v Eves [1975] 1 WLR 1338 Gissing v Gissing [1971] AC 886 Green v Green (1989) 17 NSWLR 343 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Muschinski v Dodds [1985] HCA 78; 160 CLR 583 Secretary, Department of Social Security v Agnew [2000] FCA 59; 96 FCR 357 Warren v Coombes [1979] HCA 9; 142 CLR 531 Heydon JD, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) Date of hearing: 9 August 2018 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 78 Counsel for the Appellant: Mr B L Jones with Ms E Kovacs Solicitor for the Appellant: Hall & Wilcox Counsel for the Respondent: Dr C Birch SC Solicitor for the Respondent: Alexanders Lawyers ORDERS NSD 435 of 2018 BETWEEN: BRIAN RAYMOND SILVIA, AS TRUSTEE OF THE BANKRUPT ESTATE OF GEORGIA WILLIAMS Appellant AND: PATRICK FRANCIS WILLIAMS Respondent JUDGES: PERRAM, BARKER AND DERRINGTON JJ DATE OF ORDER: 14 NOVEMBER 2018 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the Respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1. Introduction 1 Mr and Mrs Williams are a married couple. On 4 May 2012 Mr Williams exchanged contracts for the purchase of a residential home on Military Rd, Dover Heights, a suburb in Sydney's Eastern Suburbs not far from Bondi Beach. The home was intended to be, and did become, the couple's matrimonial home. The sale was completed in July 2012. The total purchase price was $2.09 million. Title to the Military Rd premises was put in Mr Williams' name alone. Mr and Mrs Williams presently live in the premises with their daughter. Subsequent to the acquisition by Mr Williams of the Military Rd premises, Mrs Williams became bankrupt. The present Appellant is Mrs Williams' Trustee in Bankruptcy. The Trustee claims that Mr Williams holds 50% of his interest in the Military Rd property on trust for Mrs Williams' bankrupt estate. This contention was rejected at trial (along with a number of other claims which are no longer pressed). The Trustee now appeals to the Full Court. For the reasons which follow, the appeal should be dismissed with costs. 2. Facts 2 Before taking up residence at the Military Rd premises, the couple had lived, not far away, at a house in Blake St, Dover Heights. The land had been registered in both their names. Mrs Williams had renovated that house extensively and it had been sold on 24 January 2012 to another couple, Mr and Mrs Pisano. The Pisanos were not satisfied with the quality of Mrs Williams' renovation works and sued both her and her husband in a proceeding which was eventually heard in the Technology and Construction List of the Supreme Court of New South Wales. The Pisanos were successful: Pisano v Dandris [2014] NSWSC 1070. An appeal by Mr Williams was, however, also successful: Williams v Pisano [2015] NSWCA 177. Mrs Williams nevertheless remained liable and was ordered to pay the Pisanos more than $1 million in damages. On 7 October 2014, prior to the disposition of Mr Williams' appeal, she had presented a debtor's petition and been made bankrupt. 3 The sale price for the Blake St premises was $3.35 million and after all expenses and the repayment of a loan, the net proceeds received from the Pisanos were $1.56 million. 4 It was about five months after the sale of the Blake St property, on 4 May 2012, that Mr Williams had exchanged contracts on the Military Rd property. This was well before Mrs Williams' bankruptcy on 7 October 2014. Although the Blake St property had been jointly owned by Mr and Mrs Williams, no attempt was made in closing submissions at trial to trace the $1.56 million sale proceeds into the Military Rd premises. A forensic accountant, Ms Delbridge, had examined the very many transactions which had occurred between Mr and Mrs Williams. There were a number of accounts and loan facilities; some were in Mr Williams' name, some in Mrs Williams' name, and some were in both. The forensic accountant thought that separate accounts had been maintained and that it was not the case that the funds had been treated as, in effect, joint funds (as the trial judge recorded at [70] of his reasons). This made any tracing exercise almost impossible. 5 The trust case which was finally put to the trial judge in closing submissions, and rejected by him, was for a trust in Ms Williams' favour arising from a shared common intention. It was submitted by the Trustee that the shared common intention should be inferred from the facts that: (a) the Military Rd premises were acquired by Mr Williams whilst married to Mrs Williams (to be clear, the couple are still married); (b) the Military Rd premises were intended by the couple to be their matrimonial home; and (c) Mrs Williams had contributed to the acquisition. 6 Mr Williams did not dispute either of (a) or (b) but he did dispute (c). 7 At trial, the Trustee sought to make good (c) by proving that Mrs Williams had contributed to the deposit for the Military Rd premises. The trial judge made findings about the deposit which led him to reject the submission that Mrs Williams had contributed to it. The facts in relation to the deposit were these. A loan account referred to by the trial judge as P800 was maintained in Mr Williams' sole name. P800 was used as the couple's day to day account and was under Mrs Williams' control. The loan account was described as a portfolio loan and appears to have been operated as, in effect, an overdraft. The available limit was $150,000. On 4 May 2012, Mr Williams exchanged contracts on the Military Rd property. The deposit due was $209,000. It was paid by a bank cheque which was purchased with a personal cheque signed by Mr Williams dated 4 May 2012 and drawn on P800. That cheque was cleared against P800 on 8 May 2012. Immediately prior to the cheque clearing, P800 was nearly fully drawn to $149,140.88. As a result, P800 ended up being overdrawn by $208,140.88 but the bank nevertheless honoured the cheque. 8 The important aspect of the matter was that the following day, 9 May 2012, Mrs Williams paid into P800 $209,000 from an account in her name, referred to as account G291, which brought P800 back to a debit of $149,149.88, just inside the credit limit. The trial judge concluded that those facts did not mean that Mrs Williams had paid the deposit. His Honour also concluded that the deposit could not be traced to the proceeds of the Blake St property. To finish the picture, Mr Williams completed the purchase in July 2012 contributing $500,000 of his own funds and borrowing the balance from a bank. 9 On the present appeal, the Trustee submitted that the $209,000 was paid towards the deposit and was, therefore, a contribution by her to the Military Rd premises. 10 On appeal, but not at trial, the Trustee also submitted that Mrs Williams had contributed a further $122,000 (at trial he did submit that she had made unspecified contributions but he did not nominate this sum). The relevant details were these: between 31 January 2012 and June 2012 Mrs Williams had paid a series of family expenses and travel expenses associated with Mr Williams' business. The Trustee now submits that the fact that Mrs Williams had paid these expenses had allowed Mr Williams to contribute $122,000 to the purchase of the Military Rd premises which he otherwise would have not been able to do. It was submitted that this constituted a contribution by Mrs Williams. 11 The issues which arise on appeal are these: (a) the pleading issue. The Trustee only fully articulated its common intention trust case in his oral closing submissions. Mr Williams submitted to the trial judge that the case had not been pleaded and that he was prejudiced by it being raised late since there was evidence he would have wished to lead on the issue. The trial judge rejected this and permitted the Trustee to pursue the argument. Mr Williams sought to challenge this on appeal by notice of contention. That notice was not filed within 21 days of the filing of the notice of appeal as required by Federal Court Rules 2011 (Cth) r 33.21. Nevertheless, the pursuit of the notice of contention was not resisted by the Trustee. (b) the deposit issue. It was submitted by the Trustee that the trial judge had concluded that Mrs Williams had not contributed to the purchase by her act in reducing the debit balance of P800 by an amount equivalent to the deposit of $209,000. The Trustee submitted that the payment by Mrs Williams had permitted Mr Williams to pay the deposit and should have been counted as a contribution. Mr Williams submitted that this was not really an accurate account of what the trial judge had found. Further, the evidence suggested that the couple actually intended that Mr Williams should own the property. In that regard, Mr Williams had given evidence in re-examination that he and his wife had discussed putting the premises in his name so that if they were subsequently leased out the interest cost would be tax deductible against his income. He submitted that the trial judge had used this fact to conclude that there had been no common intention to hold the premises on trust for Mrs Williams. In response, the Trustee suggested that the trial judge may not have reasoned that way. But he also submitted, at least in writing, that this evidence had been elicited in reply over objection and should not have been admitted. (c) the $122,000 issue. As mentioned above, the Trustee argued that Mrs Williams had expended $122,000 of her own money on household expenses and for the benefit of Mr Williams which had allowed him to put more equity into the Military Rd premises. Mr Williams submitted such a case had not been run at trial and that the payment situation as between Mr and Mrs Williams was more complex than the submission made it appear. He also relied upon the evidence about the Military Rd premises being put in Mr Williams' name for tax reasons. (d) detriment. One element of a common intention constructive trust is that the beneficiary of the constructive trust should have acted to their detriment. The Trustee submitted that Mrs Williams' detriment for the purposes of the principle was constituted by the fact that she made the contributions of $209,000 and $122,000. Mr Williams submitted that, as the report of the forensic accountant showed, the financial position between the couple was more complex and it could not be assumed that these payments were in fact a detriment when viewed in their full context. (e) extent of interest. The Trustee submitted that if the trust were established Mrs Williams' proportionate share should be 50% on the basis of the maxim that equity is equality. Further, it was said that in any property settlement proceedings between Mr and Mrs Williams (were they to be divorced) it would be obvious that an interest of hers in the matrimonial home would be recognised. Mr Williams submitted that if this issue arose it should be determined on the basis of contributions taking into account all of the payments between the couple. 12 It is convenient to deal with these matters in the above order but first to begin with the principles governing the common intention constructive trust (which were not substantively in dispute). 3. The common intention constructive trust 13 It is well-settled that there are circumstances in which a court of equity will intervene to declare the existence of a proprietary interest in a family home on the part of a spouse or de facto partner. This will occur when, in the circumstances of the case and in accordance with equitable doctrine, it would be unconscionable on the part of the person against whom the claim is brought, to refuse to recognise the existence of the equitable interest: Baumgartner v Baumgartner [1987] HCA 59; 164 CLR 137 at 147 per Mason CJ, Wilson and Deane JJ ('Baumgartner'). 14 The categories of case in which this may occur are not closed but one common example is where a spouse or partner makes a financial contribution towards the cost of acquiring, improving or maintaining a property held in the other's name. In such cases, it is accepted that the party asserting the existence of the trust must prove, first, that the spouses held a common intention that they would own the property together; and, secondly, that the party asserting the trust acted upon that common intention by making contributions or other action to their detriment: Green v Green (1989) 17 NSWLR 343 ('Green v Green') at 354-355 per Gleeson CJ (Priestly JA agreeing at 371). The contributions to the matrimonial home may be both direct or indirect (Gissing v Gissing [1971] AC 886 ('Gissing v Gissing') at 908; Green v Green at 354) and may include not only the costs of acquisition, but also the costs of any improvements or costs relating to maintenance (Green v Green at 353). That said, the mere fact of the relationship combined with express or implied undertakings to provide support and accommodation will not suffice to establish the trust. 15 In cases involving actual contributions by one spouse this will often make it relatively straightforward to establish detriment which may consist of the fact of the contribution itself. Once the trust is established the interest arising under it will be to the extent that the couple are inferred to have intended: Gissing v Gissing at 908. When joint ownership can be inferred to have been intended this may suggest equal beneficial interests: Eves v Eves [1975] 1 WLR 1338 at 1345 per Brightman J. On the other hand, where contributions have been made they may be of importance to resolution of the question too: Green v Green at 355. There is, however, no definitive answer to this question which is essentially a factual one. 16 As to the proof of the common intention, this too is a question of fact and may be proved in the various ways that the facts about states of mind may generally be proved. Such proof may be direct by means of express agreement but it may also be implied from conduct. Matters of this kind are evidentiary and do not involve legal principles: Green v Green at 355. 17 There is continuing uncertainty as to whether the trust described in Gissing v Gissing is an express, implied, resulting or constructive trust. This controversy probably emerges as an artefact of statements in Muschinski v Dodds [1985] HCA 78; 160 CLR 583 at 613-614 that constructive trusts are not concerned with the intention of the parties. The resolution of the debate is of no moment but this Court seems to prefer the view that the trust is a constructive one: Secretary, Department of Social Security v Agnew [2000] FCA 59; 96 FCR 357 at 363 [12]. These reasons should not be taken as in anyway seeking to contribute to that debate. 18 Finally, we note that the trial judge at [139] considered that the facts and circumstances giving rise to a constructive trust had not been pleaded and noted that in closing submissions the Trustee expressly disavowed any reliance on the principles relating to constructive trusts. However, the Respondent took no point on this and we accordingly proceed on the basis that the Trustee relied upon a common intention constructive trust in closing submissions. 4. Should the Trustee's case have been entertained? 19 For the reasons which follow at §§5-9 below we would conclude that on the evidence which was before the Court, the trial judge was correct to conclude that the common intention constructive trust case failed. However, Mr Williams objected at trial to that case being pursued, submitting that it had not been pleaded and that he would have led further evidence to meet it if it had been. The trial judge concluded that the Trustee could pursue the case although he then rejected it. The objection was renewed by Mr Williams on appeal. In our view, his objection is sound and the trial judge did err in entertaining the case. 20 At trial, the principal thrust of the Trustee's case was that a payment of $300,000 by Mrs Williams to Mr Williams was void as against him, that Mrs Williams was entitled to half the proceeds of the sale of the Blake St premises and that the Military Rd property was held on trust, of an unspecified nature, as to 50%. In relation to the claim to the 50% share in the proceeds of the sale of the Blake St premises, by the end of the trial no attempt was made by the Trustee to trace those funds and the claim failed (as did the $300,000 claim). 21 In relation to the trust over the Military Rd property, ¶37 of the Trustee's amended statement of claim was, so far as it is relevant, as follows: '37. In the alternative to paragraphs 32 to 36 above: (a) the Applicant repeats paragraphs 1 to 8 and 10 to 12. (b) the residence on the Land has been the matrimonial home of the Respondent and the Bankrupt since about July 2012. (c) upon acquiring the Land the Respondent held one half of his interest in the Land upon trust for the Bankrupt. …' 22 Again, it is to be emphasised that it was not suggested that the proceeds from the sale of the Blake St property could be traced into the Military Rd property. 23 No particulars were sought by Mr Williams of the trust claimed in ¶37. But the reference to ¶¶1-8 and 10-12 was a reference to the claim made in relation to the Blake St premises. The only allegation about the Military Rd premises was at ¶¶10-12: '10. In about July 2012 the Respondent: (a) purchased the land at 178 Military Road, Dover Heights in the State of New South Wales (Land) for about $2.09M; (b) paid about $500,000 towards the purchase monies from funds available to him and the balance with assistance of a loan from St George Bank made to the Respondent. 11. The Respondent, the Bankrupt and their child have resided in the residence on the Land ever since it was purchased by the Respondent. 12. The Bankrupt has contributed to increasing the value of the house on the Land by supervising and managing the renovation of it.' 24 The trust case pleaded in ¶37, therefore, had two elements. It was the family residence and Mrs Williams had contributed to the value of the house by supervising and managing its renovation. It will be seen that this second allegation is not part of the case pursued on appeal or even at trial. At ¶26 of his defence Mr Williams pleaded to ¶37 by saying that, on the facts alleged, no trust could arise. 25 A couple of weeks before the trial the Trustee delivered an outline of submissions. This outline did not refer to the trust other than as an issue to be resolved. At ¶34 it described an issue in the case in these terms: '34. Whether half the title to the Land at Dover Heights held in the Respondent's name is held on trust for the Bankrupt's estate.' 26 The thrust of that case was perhaps best captured at ¶¶36-39: '36. The Court is presented with evidence of a staggering number of apparently unnecessary and sometimes large transactions between several bank accounts in the names of the Respondent, the Bankrupt and them both. 37. The Court is also presented with evidence of a reasonably long and subsisting marriage between the Bankrupt and the Respondent. That marriage bore a child and produced a fair wealth in property. This was the result of the couple's joint endeavours and contributions (financial and non-financial) in kind and cash over several years. 38. Notwithstanding this mutual marital effort the Respondent takes all the property and his wife, the Bankrupt, is left nothing but her debts. 39. This position, whether contrived or accidental, cannot be maintained to thwart the not unreasonable demands of the wife's trustee in bankruptcy.' (emphasis added) 27 The reference to joint endeavours in ¶37, insofar as it was apt to explain the nature of the trust which had been referred to in ¶34, appears to have been the kind of trust sometimes arising in domestic relationships from joint endeavours: cf. Baumgartner. 28 On appeal, the Trustee accepted that ¶37 was infelicitously expressed but submitted that it did nevertheless advance a case based on a common intention constructive trust. 29 We do not accept the Trustee's submission that by the time of the trial it was apparent that the case being advanced could only be a claim for a constructive trust. This is for a number of reasons. First, the pleading did not refer to a common intention constructive trust. Indeed, it did not plead the existence of a common intention or what it was that Mrs Williams had done which constituted her detriment. If a common intention constructive trust was being alleged these were both essential allegations. Secondly, whilst it is true that ¶12 of the amended statement of claim pleaded that Mrs Williams had contributed to an increase in the value of the Military Rd property this was not the case eventually pursued. Thirdly, whilst it is also true that the trust being asserted in the pleading could not be an express or implied trust, it does not follow that a case of constructive trust was adequately pleaded. The role of pleadings is to disclose a party's case to the other side. Generally speaking, a case which has to be deduced from what is not alleged is not one which has been fairly disclosed. 30 It is therefore clear that as at the commencement of the trial no case had been pleaded or put that a constructive trust arose from the payment of the $209,000 or the $122,000. There was only a unspecified trust claim based on Mrs Williams' renovation activities at the Military Rd premises and the fact that it was the matrimonial home. 31 Four days prior to first day of the trial, Mr Williams delivered a set of written submissions in advance of his oral submissions. These submission dealt with the trust point as it was then understood. He made these points about that case: the pleading suggested that a trust arose from a fund derived from the Blake St property; and the nature of the trust was not explained. 32 The submission then foreshadowed, quite understandably, a possible adjournment application should the Trustee seek to amend his case in a way which resulted in procedural prejudice to Mr Williams. 33 During the course of the trial the Trustee's case appeared to change more than once. The first change concerned the deposit. Mr Williams gave evidence on the first day of the two day trial. In his affidavit he had referred to the fact that Mrs Williams had paid him the $209,000 and he also gave evidence of the $122,000 of living and travel expenses referred to above. At the time that affidavit evidence was prepared, however, there were no allegations that these amounts were contributions for the purposes a common intention constructive trust. The evidence was, in fact, being led by Mr Williams as part of an attempt on his part to show the very many payments made between the couple. This, in turn, was part of an attempt to resist the Trustee's efforts to trace the Blake St proceeds into the Military Rd premises and also to show the couple did not have fully integrated finances. 34 When Mr Williams was called there was, therefore, no constructive trust case of the kind now before the Court. This remained the case when he was cross-examined. Counsel for the Trustee at trial asked Mr Williams about the $209,000 payment but there was an objection: 'Mr Marshall: Okay. And there was a deposit paid of 209?---Yes. Do you remember where that came from?---That 2009- that came out of my – my working account. Or did it come from the proceeds of the sale of Blake Street? Dr Birch: I object to that. His Honour: Yes? Dr Birch: It's a conclusion, your Honour, and, furthermore, there's another problem with this line of questioning. Perhaps I could just – I don't want to raise it in front – in the presence of the witness, actually, your Honour.' 35 Counsel for Mr Williams explained the objection as being in part because no such case was pleaded: 'Dr Birch: There's no case pleaded against Mr Williams that there was a contribution by the bankrupt to the purchase price of this Military Road property, but that is the thrust of the cross-examination that we're experiencing at the moment. I'm not sure whether this doesn't have anything to do with the pleaded case and goes to some other peripheral issue or credit, but if it's intended to make a case at the end that there was a contribution by the bankrupt to the Military Road purchase price, then I will be submitting that my learned friend must amend his pleadings to do that and, if he was to do that now, there would be evidence that I would lead in response. But I just don't wish to sit by and allow him to try to create a fresh case he hasn't pleaded through cross-examination and then think he can somehow run it at the end of the hearing.' 36 Counsel for the Trustee responded in this way: 'Mr Marshall: Well the pleading is that there's – that the – both the proceeds of sale of the Blake Street property and the new property are impressed with the trust. Now, there was no particulars sought of this. His Honour: So what – I've got your amended statement of claim. Mr Marshall: Well, for example, paragraph 37: … that – 37(c) upon acquiring the land, the respondent held my half of his interest in the land upon trust for the bankrupt. So we've pleaded a trust. Now there were no particulars sought of this. The defence to it, that has been pleaded, is indefeasibility, so we seem to be ships passing in the night. I can understand Mr Birch's frustration, but those that instruct him didn't seek any particulars of this and the case has just charged on ahead. I'm perfectly within my rights to fortify this pleading or the other, which is that the net proceeds of sale that were paid into, it seems, an account in Mr Williams's name that he has told us was the account they both used, that it didn't lose its character as joint funds and, therefore, held on trust formally. So I don't know what else I can do.' 37 This was neither the pleaded case nor is it the case now pursued on appeal. Instead it was a case that the trust arose from the fact that the proceeds of the Blake St premises were jointly owned so that the Military Rd premises were to be seen the same way. Counsel for Mr Williams then pointed out again the degree to which this case too diverged from the pleaded case. He said: 'Dr Birch: And, in fact, those matters that are pleaded in 1 to 8 and 10 to 12 are not a pleading – well, if one just goes to 1 to 8, 1 to 8 are matters that related to the Blake Street matrimonial home, which was a home in joint names, it was sold, there was one and a half million of net proceeds and they were all paid to the respondent, and then 10 to 12 plead that there was land purchased at Military Road, that there were moneys paid that were available to him – that's my client, that they've – the respondent, the bankrupt and their child have resided; the bankrupt has contributed to increasing the value of the house by supervising and managing the renovation of it, which may allude to some sort of Baumgartner type issue – I'm not sure what it is supposed to allude to. So those are the matters that are particularised. And then in paragraph 26 of the defence: The respondent denies the facts and circumstances pleaded in the said statement of claim are capable of giving rise to any presumption or finding of trust in favour of the bankrupt in the net proceeds. statement of claim are capable of giving rise to any presumption or finding of trust in favour of the bankrupt in the net proceeds. And there was otherwise a denial in paragraph 25 of the claims asserted in paragraph 37. So the position is this: The applicant has pleaded out the grounds on which he said a trust came into existence, and we said, plainly and simply, well, they don't give rise to a trust. His Honour: Yes. Dr Birch: And what he seems to be trying to do now is to, essentially, bring a fresh case. Now, if he wants to do it, he should just do it forthrightly. If he wants to allege that there was moneys contributed by the bankrupt to the acquisition of the Military Road property, in my submission he has to do it, and he hasn't. And if he did, then there's evidence that I would seek to lead. His Honour: Yes. Dr Birch: Thank you, your Honour.' 38 This then led to further explanation from the Trustee that the case was, in effect, a joint fund case: 'His Honour: --- there's going to be, I imagine, some objections. But it is your case based on specific flows of funds in relation to the Military --- Mr Marshall It's based on combining of funds and the fact of the marriage, that it was a subsisting marriage, a happy marriage, that the one house was to replace the other, and whether the funds were paid directly from a joint account into another joint account and didn't lose their joint character or whether they were combined with other funds and churned around, which seems to have been what happened here, even in this short period, it's still a contribution by both parties to this new family home.' (emphasis added) 39 In response, counsel for Mr Williams submitted that this too was a new case. Mr Williams was then recalled but he was not further pressed on the $209,000 payment. 40 Prior to the objection, Mr Williams had been asked in cross-examination about a discussion he had with his wife about the Military Rd premises: 'Mr Marshall: Okay. And then, during that period, after the sale of Blake Street, living in the flat, your wife found the Military Road property that you currently live in; isn't that right?---That's right. And she managed to find it for sale even though, I think, it wasn't listed; isn't that right?---That's correct. And she discussed this with you and said, "This would be a good new family home for us"?---That's correct.' 41 Presumably the last answer was directed to showing that the Military Rd premises were to replace the Blake St premises as the family home. This was, after all, the case the Trustee's counsel had explained only shortly after ('that the one house was to replace the other'). 42 Counsel for Mr Williams then sought to re-examine on the topic of the discussions that Mr and Mrs Williams had had about the acquisition of the Military Rd premises. This exchange occurred: 'Dr Birch Mr Williams, you were asked some questions about the acquisition of the Military Road property and you were asked whether it was a property that your wife had identified as a prospective home: do you recall those questions? --- Yes. And you were asked whether you agreed that she had said to you something about, "This could be a family home for us"; is that what you recall? --- Yes. And did you have any discussion with her about any other manner in which that property might be used in the future? Mr Marshall: Objection to this. Doesn't arise. His Honour: Well, you asked Mr Williams about whether it could be – the conversation about being used for a family home. It seems to me that it arises. Yes, I will allow the question. The Witness: Could you repeat it please? Dr Birch Yes. Did you have any other discussion with your wife about any other ways in which that home or that house might be used in the event that it was acquired by you ---? --- Yes. --- in the future? And what do you recall were the terms of that discussion between yourself and your wife, as best you now recollect? --- It was with my work I – I would be travelling overseas, hopefully, within the next two years and the – the discussion we had was that – put it in my name for a tax deduction.' 43 The last answer suggested that Mr and Mrs Williams had discussed putting the Military Rd premises in Mr Williams' name in order to allow the benefit of any future deductible expenses to be available to Mr Williams (who earned assessable income against which the deduction might be claimed). 44 An argument is available that this evidence was inconsistent with the existence of any common intention that Mr Williams would hold the property for them both. However, what is important for present purposes is that at the time that counsel for Mr Williams conducted the re-examination he could not possibly have known that the last answer was a possible answer to the common intention constructive trust case because he could not have understood such a case then to have been in play. There had been no suggestion of such a case to that point. As it happens, the answer Mr Williams gave is fortuitously relevant to such a case but this was, in a sense, good fortune. The fact that the answer was volunteered does not mean that Mr Williams was given thereby an opportunity to respond to a case based upon a common intention constructive trust. The answer is fortuitously responsive to that not-then-advanced case but it does not follow that it was all of the evidence that Mr Williams might want to lead on that topic (if it had been known to be in play). 45 Immediately prior to his oral closing submissions, counsel for the Trustee delivered a document entitled 'Applicant's Closing Submissions'. At [22] this document now referred to the $209,000 payment by Mrs Williams. It was said that the $209,000 was derived from the sale proceeds of the Blake St premises. At [44]-[45] reference was made to principles that could possibly be construed as the assertion of a common interest constructive trust. At [46] this appeared: '46. In the present case, the Bankrupt contributed to the purchase price of Military Road in three ways: a. By contributing her share of the net proceeds from the sale of Blake Street. The mere fact that some of the proceeds may have been intermingled with the other household funds does not affect this (I will make further submissions on treatment of the net proceeds later); b. By contributing to the deposit for the property (refer Williams affidavit at [19(e)]); and c. By contributing in the form considered by the High Court in Cummins, namely in the form of labour and payment of other expenses of the household from her rental receipts of the Ramsgate Avenue unit, the joint monies derived from the Blake Street sale and share trading (see William's affidavit [40] re Bankrupt spending funds on household expenses and [19(b)] re share transactions)' 46 Paragraph 46(b) did refer to the payment of $209,000. The reference to ¶40 was to this: '40. It is my understanding that on 30 June 2014 the remaining loan funds from Georgie's father were paid out in two further transactions from my St George bank account ending -339. These payments were $10,000.00 and $9,000.00, respectively, and were made to an ANZ bank credit card account held in Georgie's name, in repayment of expenses incurred thereon for our living expenses and those of our daughter, including for petrol, food, tolls, parking fees, medical costs and costs of a family holiday, and for travel expenses associated with my employment, and others. Georgie undertook the payment transactions identified in the first sentence of this paragraph, and I did not know of these transactions having occurred, although I assumed that Georgie was making payment to meet expenses incurred on our credit cards.' 47 That is not reference to the $122,000 now asserted. Paragraph 19(f), which was not referred to by the Trustee, did refer to the $122,000 and was in these terms: 'f. in the period January to June 2012 Georgie expended $122,000.000 from her Maxisaver account to the repayment of her ANZ credit card account, that is, in repayment of expenses incurred thereon for our living expenses and those of our daughter, including for petrol, food, tolls, parking fees, medical costs and costs of a family holiday, and for travel expenses associated with my employment, and others.' 48 It is thus apparent that the case now pursued on appeal in respect of the $122,000 is not in respect of the same expenses as those relied on at trial which were the unspecified expenses referred to at ¶40. 49 It may be doubted whether the closing submission document did actually advance a case based on a common intention constructive trust but it is not necessary to decide that issue as it was accepted on the appeal by Dr Birch that such a case was advanced in counsel's oral closing submissions. 50 Counsel for Mr Williams had, by that time, objected to such a case being run. He submitted that had it been raised earlier he would have led 'substantially more evidence'. There was said to be 'a real issue of potential prejudice'. This exchange then occurred: 'His Honour: Well, I think you said in your – in the context of your initial objection --- Dr Birch Yes. His Honour: ---that you – that there was evidence you would have led if you had understood that the case was being run that way. Dr Birch: That's correct. Yes. His Honour: Now, I mean, it's – Mr Marshall, I mean, it's not in the form of an affidavit, I suppose, it's not evidence, it's Dr Birch saying so from the bar table, but it seems fairly clear from not only the written outline of opening submissions but even from Dr Birch's closing submissions that it really was not apparent to the respondent that that was precisely how you were putting your case, and I have to say it wasn't entirely clear to me either. Mr Marshall: I understand that. His Honour: I mean, it's certainly – it seems to me to – removes any real sting from your submission that the respondent hasn't called the bankrupt, for example, perhaps--- Mr Marshall: I will probably have to accept that. Yes. His Honour: Yes. Very well. Well, I will reserve my judgment. I thank counsel for their assistance and submission. Very well. I will reserve.' 51 The matter was then reserved. By that time, the Trustee had not sought to amend the pleadings and Mr Williams had not sought to adjourn the matter in order to allow him to adduce further evidence. It is however plain that his counsel at all times claimed that there was such evidence which was proffered as a reason why the case should not be entertained. The trial judge reasoned this way on the pleading issue at [172]: '172 The question of what flows from the deficiency in the pleadings concerning the trust allegation is more difficult. When complaint was made about the pleading, in the context of an objection to a question asked of Patrick [Mr Williams] in cross-examination, Patrick's counsel asserted, in effect, that Patrick was prejudiced by the deficiency. Specifically, it was asserted that his case had not been prepared on the basis that the Trustee alleged that Georgia [Mrs Williams] had contributed to the purchase price of the Military Road property and that, if that was to be alleged, Patrick would want to adduce further evidence in relation to that issue. Ultimately, the question that was objected to was not pressed. Patrick did not apply to adduce any further evidence, and eventually detailed submissions were made on his behalf in relation to the issue of contribution and the Trustee's case in relation to the alleged trust generally. In those circumstances, the issue concerning contribution, and the other elements of the Trustee's case concerning the alleged trust, were clearly 'in play': Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [59]. While the Trustee's pleading concerning the alleged trust was plainly deficient, that does not provide a separate basis to dismiss this aspect of his case. There was no real or operate unfairness in the way the case was ultimately conducted.' 52 Mr Williams submitted that it was erroneous for the trial judge to have permitted the case to have been run. With respect, we agree. Unlike Betfair Pty Limited v Racing New South Wales [2010] FCAFC 133; 189 FCR 356, the trust case now advanced had never been in play. Evidence in relation to the $209,000 was blocked by objection which led to the question being withdrawn. We do not think that the fact that Mr Williams made submissions about it meant that he was not prejudiced. The position he found himself in meant that he had to make submissions and he had no choice in the matter. We do not see that that can now be held against him. 53 Further, we do not think that the fact that Mr Williams had given evidence touching on why the property had been put in his name meant that he had been given an opportunity to meet the case by then propounded. At the time the evidence came out it was effectively fortuitous. By no means did it mean he was given a fair opportunity to meet the common intention constructive trust case. 54 Furthermore, we do not think that it was incumbent upon him to seek to reopen his case. It was instead for the Trustee to amend. If and when that occurred he might have been required to consider whether to apply for an adjournment. He was genuinely prejudiced and the common intention constructive trust claim should not have been entertained. 55 We would uphold the notice of contention. This is sufficient to dismiss the appeal. For the reasons which follow, however, even though the trust case should not have been entertained, the trial judge was correct in concluding that the claim should fail. 5. The Deposit Issue 56 The circumstances in which Mrs Williams paid the $209,000 to Mr Williams are set out above. Mr Jones of counsel, who appeared with Ms Kovacs of counsel on behalf of the Trustee on appeal, submitted that that payment was evidence that Mr Williams and Mrs Williams intended the matrimonial home to be owned by both of them. It was not to the point, as a matter of substance, that she did not directly pay the deposit herself in the sense that money moved from her to the vendors' solicitors. It was enough that the payment by her was plainly referable, although indirectly, to the deposit. Any other view would suggest that it had been a gift and there was no evidence to that effect. 57 The trial judge's findings about the deposit are at [160]-[161]: '160 … As for the payment of the deposit, Ms Delbridge's evidence was that the deposit of $209,000 was paid by bank cheque drawn on one of Patrick's bank accounts. That cheque was dated 4 May 2012. It cleared Patrick's account on 8 May 2012. The following day, Georgia transferred $209,000 from one of her accounts to the account on which the cheque had been drawn. It does not follow, however, that Georgia paid the deposit. 161 The Trustee submitted that Georgia contributed her share of the net proceeds of sale of the Blake Street property, though he conceded that "some of the proceeds may have been intermingled with the other household funds". The Trustee made no real attempt, however, to trace any of the proceeds of sale of the Blake Street property into the money used by Patrick to acquire the Military Road property. For the reasons given in detail earlier, the evidence did not support the Trustee's submission.' 58 Dr Birch SC, for Mr Williams, submitted there had been no appeal from this finding. However, the present argument is not inconsistent with that finding. The Trustee is not now saying Mrs Williams paid the deposit herself. Further, as we have explained above under §3, it is not a requirement that Mrs Williams should literally have paid the contribution. What is required is some kind of contribution whether direct or indirect. On its face, the payment of $209,000 appears to be an indirect contribution referrable to the deposit. 59 However, the trial judge's reasons did not rest solely on the deposit issue. 60 He observed that no effort had been made to trace the proceeds of the Blake St property into the Military Rd property (at [161]) and that Mr Williams had not been cross-examined by the Trustee about the deposit issue (at [162]). We would infer from that that the Court therefore did not know what Mr Williams and Mrs Williams understood or intended by her payment into the P800 account of the $209,000. 61 Further, the trial judge noted that Mr Williams had given the evidence referred to above as to why the Military Rd premises was put in his name which the trial judge explained at [159]: '159 The evidence given by Patrick in re-examination, however, tended to suggest that a conscious decision was taken by Patrick to acquire the property in his name alone. That decision appears to have been made for tax reasons. There was a possibility that Patrick and Georgia would reside overseas for a period of time. If they did, and the Military Road property was owned by Patrick alone, he could rent it out and take advantage of negative gearing in relation to the rent received. That is not determinative in terms of his and Georgia's intentions concerning the beneficial ownership of the property, though it is doubtful that Patrick would have achieved the full tax benefit arising from negative gearing if Georgia had a beneficial interest in the property.' 62 The fact that it was not determinative did not mean, however, that it was irrelevant and we do not read his Honour's reasons as suggesting he was not relying on this matter. We reject the submission that Mr Williams' evidence about the proposal negatively to gear the property did not arise and should have been rejected. The cross-examination is set about above at [40]. The impugned re-examination is above at [42]. 63 His Honour allowed Mr Williams to be re-examined on the topic of the discussions he had with Mrs Williams. No ground of appeal now contends that his Honour's ruling was attended by error. In any event, there was no error. The Trustee's counsel had asked Mr Williams about discussions he had had with Mrs Williams in an attempt to advance his case that the new family home was intended to replace the old one. He had obtained the favourable answer that she had told him 'This could be a family home for us'. It would have been quite misleading to leave that evidence unqualified if, in fact, the couple had had a conversation inconsistent with that contention: see Heydon JA, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) at [17605] and the authorities collected in footnote 1074. 64 That leaves the Appellant's argument that there was no evidence that it was intended that the payment of $209,000 by Mrs Williams to Mr Williams be a gift. The submission is of little weight. There was no evidence as to what was intended by the $209,000 payment at all. The logical possibilities include that it was: a gift to Mr Williams; a loan; part of a series of payments between a couple whose finances were not entirely integrated; or an equity investment by Mrs Williams. 65 The trial judge made this finding about the way the couple managed their finances: '109 None of this is to say that the financial affairs of Georgia and Patrick following the receipt of the proceeds of the sale of the Blake Street property, or indeed at any time, can or should be approached as if there was a sort of running account or ledger between them. Patrick and Georgia had many bank accounts. Some were joint accounts, but many were not. Funds were regularly transferred between those accounts. As discussed earlier, the evidence of the forensic accountant, Ms Delbridge, was to the effect that the financial affairs of Patrick and Georgia did not involve a complete mingling of funds. Rather, there appeared to be some attempt to keep some degree of separation between their separate financial affairs. The example given by Ms Delbridge was that, if funds were to be applied to reduce the debit balance of a credit card in Georgia's name, funds would often be transferred from an account in Patrick's name to an account in Georgia's name, before they were finally transferred to Georgia's credit card account. Nevertheless, the flows of funds were quite convoluted and complex and there was often no clear nexus or link between the various transactions.' 66 At trial the Trustee had also sought, for a while, to prove that the various payments between the couple resulted in an overall net balance due to Mrs Williams. His Honour said this of that attempt at [111]: '111 Somewhat belatedly, the Trustee sought to rely on his own analysis of some of the transfers between Georgia and Patrick in the two-and-a-half-year period following the deposit of the sale proceeds into Patrick's account. The Trustee submitted, at least initially, that the analysis showed that the "balance" was in favour of Georgia. That analysis was simplistic and flawed. It included only a select number of transactions and ignored many transactions which, at least from the bank statements, appeared to involve transfers of money from accounts in Patrick's name to accounts in Georgia's name. In his final submissions, the Trustee did not seek to defend this analysis.' 67 Whilst it is true, as the Trustee submits, that there was no evidence that the $209,000 was intended to be a gift, these unchallenged findings suggest that it would be very unwise to examine any of the payments made between the couple in isolation. The short of the matter is that the evidence simply does not establish what the nature or purpose of the $209,000 payment was. That conclusion does not assist the Trustee who bears the onus of proof. 68 We do not accept, therefore, that the inference that Mr and Mrs Williams had the common intention that Mrs Williams would have a beneficial interest in the Military Rd property is, as Mr Jones submitted, inexorable. The Trustee referred to Mr Williams' evidence (above at [40]) to buttress that submission. Apart from showing that the re-examination referred to above at [42] really was re-examination, this matter cannot bear the great weight with which it is now sought to be saddled. It is, one may accept, a relevant matter. But the trial judge referred to the cross-examination and re-examination in context and set it out in his judgment at [156]-[157]. This Court can review the inferences drawn (or not drawn) by the trial judge if it perceives error in them giving due weight to the advantages enjoyed by the trial judge: Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551-552. In this case, no legal error is demonstrated and we do not disagree with the decision of the trial judge not to draw the inference that there was a common intention. 69 Implicit in that conclusion is a rejection of the Trustee's argument that the inference that there was a common intention might more comfortably be drawn in circumstances where Mr Williams gave no evidence about his intention in his evidence in chief and where Mrs Williams was not called: Jones v Dunkel [1959] HCA 8; 101 CLR 298 ('Jones v Dunkel'). Here the Trustee, however, must wear the consequences of running his common intention constructive trust case with such obscurity and so late. As matters stood when Mr Williams was called, there was no particular reason to ask him in examination in chief about the common intention issues since that case had not then been articulated. Further, the fact is that he did give evidence relating to the question of intention under re-examination. Once it is accepted that that evidence was correctly received the Jones v Dunkel argument in relation to Mr Williams disappears. 70 In any event, as the trial judge noted at [160]-[167], it was not without significance that the Trustee did not cross-examine Mr Williams about the existence of the common intention. The Trustee submitted that his Honour had not criticised him in those paragraphs for not cross-examining on the issue. This is literally true but his Honour also said that he regarded the fact that Mr Williams had not been cross-examined on the issue as being of 'some considerable significance'. This was not a plaudit. It was the Trustee who was alleging at the close of the trial, if nowhere else, that Mr and Mrs Williams shared a common intention. Mr Williams gave no evidence in chief about that topic in circumstances for which he cannot be criticised. But he did give evidence in reply touching upon the issue in the form of his evidence that the property was placed in his name to leave open the possibility of deducting the interest bill against his income should the premises be tenanted. No application was made to cross-examine Mr Williams about this as there could have been under s 28 of the Evidence Act 1995 (Cth). Counsel can hardly have failed at that time to have appreciated the significance of the answer given by Mr Williams relating to the decision to put the property in his name for tax reasons. 71 It is not necessary to deal with Mr Williams' submission that, in effect, there was a breach of the rule in Browne v Dunn (1894) 6 R 67 because the Trustee had failed to put his common intention constructive trust case to Mr Williams. The Trustee submitted that this was not so because the rule only applies where it is proposed to contradict the witness' evidence: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16. It is a complex question whether the Trustee's common intention constructive trust case contradicted the evidence Mr Williams gave that the property had been put in his name for tax reasons. In part this is driven by income tax issues such as whether Mrs Williams would have had to declare 50% of any income received by Mr Williams if the trust was established and, with that, the operation of Division 6 of the Income Tax Assessment Act 1936 (Cth). There is insufficient material before this Court safely to embark upon that task. 72 The position is really no better in relation to Mrs Williams. As the passages set out above at [47] from the closing oral submissions show, counsel for the Trustee accepted – given the circumstances in which the common intention constructive trust issue had been advanced – that Mr Williams could not be criticised for failing to call Mrs Williams. The reasons for that concession were sound. In any event, the Trustee should not now be permitted to resile from his concession at trial which was very properly accepted by Mr Jones on the hearing of the appeal. 6. The $122,000 Issue 73 The trial judge dealt with this at [167]: '167 The evidence that Georgia contributed to the acquisition of the property in any material way was particularly thin. The high point was the evidence concerning the payment of the deposit. Even that evidence was inconclusive. It indicated that the deposit was paid by bank cheque drawn on one of Patrick's accounts but that subsequently, funds equivalent to the amount of the deposit were transferred from one of Georgia's accounts to Patrick's account. The Trustee's submission that Georgia contributed by providing services and paying family expenses rose no higher than bare assertion. It is also of some considerable significance that Patrick was barely asked any questions in cross-examination that bore on the question of contributions to the acquisition of the property.' 74 No attempt appears to have been made at trial to identify the $122,000 now brought to the fore in this appeal. This is important because of Mr Williams' submission that nominating that sum ignores a number of other payments between Mr and Mrs Williams. Because this figure was not put at trial, this Court does not have the benefit of any fact finding about it. In particular, this Court has not been taken to the detail of the forensic accountant's analysis of the payments which flowed between the couple. No explanation is proffered as to why the detail was not raised at trial and, in that circumstance, we would not now permit it to be put. Once the Trustee's case is stripped of reference to any actual payments (as it was at trial), the trial judge's reasoning at [167] appears, with respect, to be unassailable. 75 A number of the Trustee's other arguments about this sum reflected arguments he also made about the deposit. They should be rejected for the same reasons. 7. Detriment 76 The trial judge did not make any findings about this issue as it did not arise. In our view, it does not arise on the appeal either for the same reasons. Had it been necessary, we would have concluded that the payment of $209,000 made by Mrs Williams was a sufficient detriment for the purposes of establishing the trust. As noted above, it may generally be easy for a party who has actually expended funds to establish the relevant detriment: Green v Green at 354. Not sufficient is known about the $122,000 to know whether it was a true detriment when seen in its full context. 8. Proportion of interest 77 In the view we take of the appeal, this issue does not arise. Had it arisen, the answer would have been driven by the nature of the common intention held. It is artificial (and probably impossible) to do this coherently when the conclusion is that there was no such intention. 9. Disposition 78 The appeal should be dismissed with costs. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Perram, Barker and Derrington. Associate: Dated: 14 November 2018