74 \Q779 Mn. Tuskiie Caank COM -ONULALTH OF ANSTRADIA ' OF auc. TA IM TIL FEDEEAL COURT ) ) GONERAG DEVIS Corr ) JUICE MAKLNG ORDER: DATE OF ORDER WHERE MADE: THE COURT ORDERS THAT: No. N.S.W. 296 of 1972 In the matter of THE BANKRUPTCY sc? And in the matter of - AN APPLICATION FOR DECLARATIONS RF - ROWALD JAMES MASTERS Ex parte:Jeanette Margaret Masters Applicart The Official Receiver Respondent ORDER Riley J. 25 October 1977 Sydney The application be dismissed. Applicant to pay Official Receiver's taxed costs of the application. CATCHWORDS Bankruptcy - House and car bought by husband and wife - Registered in joint names - Bankruptcy of husband - Whether husband's legal interests held on trust for wife. REASONS FOR JUDGMENT A sequestration order was made against the estate of Ronald James Masters on 22 June 1972. This application, made on 7 July 1977 by his wife Jeanette Margaret Masters, seeks declarations that the bankrupt holds in trust for his wife (a) his legal interest in the house and land known as 9 Marden Street, George's Hall and (b) his legal interest in a 1971 Ford Falcon Sedan car. The Official Receiver as trustee of the bankrupt's estate has filed a notice of opposition which, as amended by leave, opposes the making of the declarations sought on the grounds that neither the bankrupt's interest in the house and land nor his interest in the car were ever held in trust by the bankrupt for the applicant. Evidence was given only by the applicant and the bankrupt. The applicant swore two affidavits, and the bankrupt one, and both gave oral evidence. The story that emerges from a collation of that evidence is as follows. Mr. Masters (who was then a divorcee) and the applicant were married on 31 March 1967. At all relevant times from about 1965 until his bankruptcy Mr. Masters carried on business as a wholesaler of light fittings. He had an account (No. 380466) with the Commonwealth Trading Bank at Beverley Hills. which I shall call his business account. It had been opened with an overdraft of $4,000 guaranteed by two friends. At no relevant time has it ever been in credit, and it has on most occasions been overdrawn by more than $4,000. Both before and for a time after her marriage Mrs. Masters was in employment as a result of which she had saved money that she put into various savings and other bank accounts in her own name. She says that in October 1966, before her -2— marriage, her parents lent her future husband $4,000 for the purpose of paying business debts which he owed. I shall return to this matter. Mr. and Mrs. Masters began their married life by living with a sister of his, but decided to look for a block of land on which they could build a house of their own. At about this stage, it is said, they came to an agreement between themselves. Mr. Masters needed for the purposes of his business any money that he had. His wife had some savings and a job. She would be providing at least as much as she could of the finance for buying the land and building the house. She says (transcript 15/16) that, because her husband had previously been married and divorced and "although it is not a nice thing to talk about it, it can always happen again", they agreed that therefore the land and house would belong to her though, in order to obtain bank finance, the title would be registered in their joint names. The evidence of Mr. Masters did not appreciably support his wife's on this matter, and he explained the joint registration merely as being "general procedure with a husband and wife" (transcript 38). They did not mention that agreement to the solicitor who acted for them wHen, as will appear, they bought some land, or to the bank when obtaining a building loan, or to the relevant authority when seeking a home grant from the Commonwealth, or to anyone in an official capacity until after the husband's bankruptcy (transcript 43). Mrs. Masters says that it was also (but later) agreed that as the property would belong to her alone, her husband would have to pay her rent, from which she in turn would make repayments for money borrowed from the bank, and payments of council rates and water rates, "so that the house is still ~3- mine" (transcript 35). Her husband concurs, though he says that "the actual words were, it would be a form of rent" (transcript 42). They searched for land, and saw blocks costing up to $10,000. On 26 October 1967 Mrs. Masters drew $1,500 from one of her savings accounts and paid it into her husband's business account, so that if they found a suitable block he would be able to hand over a cheque for a deposit without delay. Then they found, and decided to buy, the subject land at 9 Marden Street, George's Hall, for $3,800. Mr. Masters paid the deposit of $380 by cheque drawn on his business account. He and his wife had opened with the Commonwealth Trading Bank at Beverley Hills an account ("the land purchase account") (No. 380642) in their joint names. There were but four sums of money ever deposited in that account. Apparently it was opened with a deposit by Mrs. Masters on about 15 March 1968 of $336 draywn from one of her own accounts. On about 18 March 1968 she deposited in the land purchase account $1,100 drawn from another of her accounts and her husband deposited in it $200 drawn from his business account. A cheque for $3,432.37 was drawn on the land purchase account on 3 May 1968 to pay for the balance of the moneys payable on the purchase of the land. The drawing of that cheque put the account in debit, and it so remained until the debit balance was reduced to nil by payment into it of the fourth deposit, a cheque for $1,940.47 drawn by Mr. Masters on his business account on 19 May 1969. Mrs. Masters says that she contributed to the purchase of the land the following amounts mentioned above: $1,500 1,100 $2,936 —d— She also says that the total cost of the land,including interest and bank charges debited to the land purchase account, was $3,956.47, and that the difference of $1,020.47 between that amount and $2,936 was also contributed by her, as it came from the $4,000 which her parents had lent her husband and which her husband, she says, was bound to pay to her. The legal costs and disbursements and stamp duty were paid by her husband out of his business account. There is no evidence as to the amounts of those charges, but Mrs, Masters says they were covered by money provided by her. The next event was that on 19 December 1968 the Commonwealth Trading Bank at Beverley Hills announced its approval of a loan (No. SN/2-057621-05) of $8,000 to help with the building of the house that now stands at 9 Marden Street. The contract price that had been obtained for the building was $9,236, so the difference of $1,236 had to be provided. on 31 March 1969 that amount was paid to the credit of loan No. SN/2-057621-05. It had been drawn from a joint home savings account (No. 20222) which Mr. and Mrs. Masters had opened with the Commonwealth Trading Bank with the object, which they did not achieve, of obtaining a home grant from the Commonwealth Government. It had been paid into that account by Mrs. Masters and represented part of her personal savings. Her husband did not ever contribute anything to the home savings account No. 20222, and she therefore claims that she contributed a further $1,236 to the building of the house. The house was built, and the bank paid the $8,000 towards its cost. That loan of $8,000 now had to be repaid with interest. The arrangement with the bank was that the bank would automatically draw from the husband's business account each month the amount of the monthly instalment of principal and -5- interest. Until October 1974 that amount was $56 and thereafter it became $64. To cover such drawings, there were paid into the husband's business account on 8 February 1970 an amount of $700 drawn by Mrs. Masters from one of her personal accounts, and on 12 May 1970 an amount of $550 drawn from the joint home savings account No. 20222, being the balance then remaining in that account. That arrangement with the bank continued up to the time of the husband's bankruptcy on 22 June 1972. Thereafter the, monthly payments have been made to the bank in cash by Mrs. Masters, with money given her by her husband from his earnings. The first question for decision is whether the applicant is solely entitled, to the exclusion of her husband, " to the land and house of which the two of them are registered as proprietors. From the fact that they are so registered there flows a presumption of co-ownership, and the burden of rebutting that presumption lies on the applicant. In my opinion she has failed to discharge that burden. Her case depends entirely on the evidence of her husband and herself, which is independently supported only as to some incidental matters, such as the movements in bank accounts. ' I was not impressed by that evidence. In her affidavit of 15 September 1977 the applicant's claim was cast differently from the way in which it was cast in her affidavit of 22 June. The contributions said to have been made by her total $9,422 in the earlier affidavit and $13,192.47 in the later. The constituent amounts of $1,500, $336, $1,100 and $1,236 are common to both; but the earlier amount of $4,000 representing the loan from the parents becomes $1,020.47 in the later affidavit, and the two sums of $700 and $550 in the earlier -6- appear to be absorbed in the total of $8,000 for the bank loan in the later. The applicant and her husband (who clearly had an interest in supporting her evidence) were not convincing witnesses. In my view Mrs. Masters was better aware than her husband that it might be suggested that the amounts she paid into his business account were in fact so paid for the purposes of the business, and there was accordingly some discrepancy between certain answers that they gave. Each was asked whether, when the $1,500 was transferred by her to her husband's business account, that account was overdrawn. She said she did not know - "I have no knowledge and nothing to do with my husband's business account. ... I never knew anything about the — condition of his account or anything to do with the business or any other matter (transcript 20). He said his account was overdrawn at that time: it was always overdrawn and his wife knew about it (transcript 39). I have come to the conclusion that the evidence that there was an agreement that the husband should pay rent is not true. I think it was an invention (later in origin than the affidavit of 22 June 1977, in which it is not mentioned) designed to deal with the problem of the payments, after the husband became bankrupt, of instalments due under the mortgage. It was so poorly fixed in the applicant's mind that in her oral evidence, both when examined in chief by her own counsel (transcript 15/16-17) and when cross-examined by counsel for the Official Receiver (transcript 35-36) as to the payments she made after her husband's bankruptcy, her first thought on each occasion was to say that they were made out of moneys he paid her in discharge of an obligation, and it was only after prompting that she spoke of an agreement to pay rent. ~7- Her husband seemed similarly confused (transcript 41-42). It is inherently improbable that such an agreement was made, and I do not accept the evidence that it was. The unreliability of the witnesses as to that matter colours the whole of their evidence, and I do not accept their story as to the agreement about ownership. The applicant purported to have a precise recollection of the relevant conver- sation, but her memory was vague as to other details, and the support given to her evidence by her husband was negligible. In my opinion the evidence on this matter fails to indicate a trust. Then it was submitted that a trust arose from the fact that the applicant paid the whole of the purchase money for land and house. But that fact is not established by the evidence. It is necessary now to return to the subject of the loan of $4,000 said to have been made to Mr. Masters by the parents of his fiancee (as she then was) in 1966. The sum of $4,000 was lodged to the credit of his business account on 17 October 1966. Mrs. Masters said in her affidavit of 22 June 1977 that the purpose of the loan was to enable her husband to pay outstanding debts. In her oral evidence in chief she said that "the $4,000 which they had originally lent to my husband was eventually repaid by the bad debtor he had"; and, having referred - to the sum of $1,020.47 mentioned above, said that the balance ($2,979.53 but referred to as $2,980) "was to be used to continue paying off the loan and at the time of my husband becoming bankrupt that amount was still owing to me because my parents had given me that money as a gift". The "loan" there mentioned was clearly the bank loan of $8,000, because she then said that the amount of $2,980 "was used towards the house, towards the mortgage repayments". Of that amount she said $409 was paid into the joint home savings account and the remaining $2,571 was used "as repayments on the house mortgage". In cross-examination Mrs. Masters said (transcript 29), of "the $4,000 my parents had lent my husband in 1966", "that money was flowing back in from his bad debtor and, knowing it was flowing back in, we approached my parents to use this money for the purchase of a home, to which they agreed. None of that money was ever repaid to my parents and this is why: they had given my brother a sum of money and he was buying a house and they decided that rather than try to get us to repay that $4,000 they would give it to me as a straight out gift like they gave my brother and I did not owe them any more than that $4,000. It was an outright gift to me". She also gave the following evidence (transcript 31/33): "Q. Are you able to say whether your husband in fact paid the sum of $4,000 to your parents after that loan was made? A. My parents have never received any of that $4,000 back. This is why I have since said to you that they have given me that money, because there was little likelihood of them ever getting (anything) back under the circumstances which have arisen since they made that loan. Q. Did they physically give you $4,000? A. They transferred the amount directly into my husband's business account at the time that they gave me the loan. That was I believe in October 1966." It will be observed that Mrs. Masters is there reported as speaking of the $4,000 as being a loan made to her, not to Mr. Masters. I think however that her words actually were "... at the time they gave him the loan". No submission was based on her having said otherwise, and I think the transcript here is in error. I have referred above to the debit balance of the land purchase account being reduced to nil on 19 May 1969 by the deposit of a cheque for $1,940.47 drawn by Mr. Masters on his business account. In cross-examination Mrs. Masters was asked whether the whole or part of that amount of $1,940.47 represented moneys that she had transferred into the business account. She replied (transcript 30): , "Part of it was from the $1,500 at that stage I had transferred, and the balance was from the $4,000 loan that my parents had extended as my husband got the money back from his bad debtor. ..." But, as I have said, she claims that the sum of $2,936 contributed by her (which included the $1,500) was short of the total cost of the land by $1,020.47 and that the latter amount came from the $4,000. Thus it is difficult to see how any part of the $1,940.47 provided from her husband's business account on 19 May 1969, a year after the land had been paid for, could represent part of the $1,500. If the contention is that the parents (neither of whom gave evidence) assigned to their daughter the debt owed them by her husband, the evidence in my view is insufficient to establish an assignment. I am therefore unable on the evidence to conclude that the applicant's husband was under an obligation to her in relation to, or that she was entitled to receive, any part of the $4,000. It follows that in my opinion she cannot claim that any payment made from the $4,000 in respect of the land and house was made by her. The applicant claims that she provided: (a) moneys paid into her husband's business account: 1,500 700 (applied in mortgage repayments) 550 { " uw" u "" 2, 750 (b) moneys paid into the land purchase account: 1,100 1,436 (c) moneys paid into the home savings account 1,236 5,422 -10- (ad) from the $4,000 lent by her parents 1,020.47 (e) mortgage repayments since her husband's bankruptcy on 22 June 1972, From what I have said above it follows that claim (d) must fail. Claim (e) must fail also. It is based on the proposition that the payments in question were made from moneys which her husband paid the applicant pursvant to a claim by him to pay her rent (or some payment in the nature of rent), or because he owed money to her, or by way of gift. There is no evidence of gift. I have said that I do not accept that there was any such agreement to pay rent, or that the husband owed anything in respect of the $4,000 lent by the applicant's parents. On the evidence there is no way in which her husband could be said to have owed the applicant money otherwise than by having failed to account for the total of $2,750 paid by her into his business account. The applicant has not proved that he did so fail, since he paid the following amounts out of his business account: (1) deposit on land . 380.00 (2) paid into land purchase account 200.00 @) " " " u " 1,940.47 2,520.47 (4) the unproved total of the legal costs and disbursements and stamp duty on the purchase of the land. (5) $56.00 a month until the bankruptcy (towards the total of which the applicant provided $700 + $550 = $1,250). I therefore dismiss the application as far as 1t concerns the bankrupt's interest in the land and house. The car to which the application secondly refers was bought on hire purchase. It cost a total of $3,237. In her -ll~ affidavit of 22 June 1977 the applicant said that she bought it in the names of her husband and herself. She also said in effect that $2,007.64 was paid by her as follows: 1. Deposit (a) Allowed on trade-in of a car owned by her 637 (b) From her savings from wages 500 From her cheque account 100 600 1,237 2. Repayments (c) From moneys paid weekly to her by her husband in repayment of a loan 210 (ad) From money she earned by sewing 200 (e) From savings of housekeeping money from husband 360.64 770.64 2,007.64 Further, she said that "the balance of the repayments on the vehicle in the sum of $1,229.36 was paid by my husband". In his affidavit of 22 June 1977 Mr. Masters said "I say that the only payments made by me in respect of the (car) have been repayments totalling $1,229.36 out of the total costs of the vehicle of $3,237". In evidence before me Mr. Masters said (transcript) 44-45) that it was he alone who entered into the hire purchase agreement: his wife was not a party to it. (Incidentally, his application form stated that he was buying "my home".) He gave no other oral evidence about the car. In her evidence in chief before me Mrs. Masters radically departed from their earlier affidavit evidence that her husband paid the $1,229.36. She now swore that that amount was paid by her, by cheques drawn on her account. Asked how moneys got into that account she replied (transcript 17): ~12~+ "My husband was the only one working. He would bring home his money and I would put moneys into that cheque account from his wages to cover bills and the car payments. At that point of time of purchase, that car was mine because he still had another vehickle in the business. The trade-in was mine and the Falcon was to be mine. At the time the receiver took the vehicle from the business, my husband had no vehicle so I agreed he could continue driving my car and make the repayments for the use of the car." And later she said (transcript 18): "9. If it is correct, as you contend, that the car belongs to you, why did some of the funds used to pay Nu-Ford come from your husband's weekly pay envelope? Because he had to have a vehicle to go to work and as the car was mine I said, 'You may use the car but you may pay me for the use of it'. In the event, I put the money which he paid me for use of the vehicle for use for the repayments". Here again the evidence does not establish the existence of an agreement that the applicant should be the owner of the property in question; and again, in my opinion, there is an invention. I do not believe the applicant's oral evidence as to the payment of the $1,229.36. The application as to the car fails. I dismiss the application, and shall hear counsel on the question of costs. — r — TAIN ' 2 ° . ' ; . Fi 3B ! COMMA Gat OF MIGHT 7 LA ; AV VAR PENERAL COUN ) of eit ) No. N.S... 295 of 1972 ) a In the matter of TID BAUR CY, 18667 7 ~ | And in the matter of - . AN YPPLTCAVICN PCR DECLARES ¢ ROFALD GATS UASCPRS Ex parte: Jeanette Narguret Nasterc Applicart Whe Official Receiver ' Respondent ! — | ORNR=ER ALE of Hari Sod Sete 471 | JUDCE HAK.ING ORDER: Riley J. | DATE Or ORDER ", 25 October 1977 WHER MADE: Sydney THE COURT ORDURS THAT: } bo - joudSeL PA ResPoynewr ls(Quc(iut Qa lice Q%& \ i jOUUGEL Pphieaet 11M A RU CL NG (iNG Soalie TO AS Fare The application be dismissed. Applicant to pay Official Receaver' taxed costs of the application. Pauk ' UO ul 4.07 Willfee. Gibbs « Dow kD. {Sols S.Elo. &T Sydwey 92h - Nye teas on! fo ft. G.- P Le. Ph x erie 9 egy CATCHUORIS . woe Bankxuptcy ~- House and car bought by husband and wife - Regiscered in joint nares - Bankruptcy of husband ~ Whethex husband's legal interasts held cn trust for wv REASOUS FOR GVDCRENT Aw sequestration order was made against the estate of Ronald James Masters on 22 June 1972. This application, made on 7 July 1977 by his wife Jeanette Margaret Masters, seeks declarations that the bankrupt holds in trust for his wife (a) his legal interest in the house and@ land known es 9 Marden Street, George's Ilali and (b) his legal interest in a 1971 Ford Falcon Sedan car. the Official Receiver as trustee of the bankrupt's estate has filed a notice of opposition which, as amended by leave, oppose: the making of the declarations sought on the grounds that neith: the bankrupt's interest in the house and land nor his interest in the car were ever held in trust by the bankrupt for the applicant. Evidence was given only by the applicant and the bankrupt. The applicant svore two affidavits, and the ben'.ruot one, and both gave oral evidence, 'The story that emerges freoia a collation of that evidence is as follows. Mr. Masters (who was then a divorcee) and the applicant were married on 31 March 1967. At all relevant times fxom about 1965 until his bankruptcy Mr. Masters carried on business as a wholesaler of light fittings. He had an account (No. 380466) with the Commonwealth Trading Bank at Beverley Hil which I shall call his business account. It had been opened with an overdraft of $4,000 guaranteed by two friends. At no relevant time has it ever been in credit, and it has on most occasions been overdrawn by more than $4,000. Both before and for a time aiter her marriage Mrs. Masters was in employment as a result of which she had saved money that she put into various savings and other bank account: in her own name. She says that in October 1966, before her Raw wee we marriage, her parents lent her future husband $4,000 for th purpose of paying business debts which he owed. I shall ° return to this matter. Mr. and Mrs. Masters began their married life by livin 'with a sister of his, but decided to look for a block of land on which they could build a house of their own. At about this stage, it is said, they came to an agreement between themselves. Mc. Masters needed for the purposes of his business any money that he had. His wife had some savings and a job. She would be providing at least as much as she could of the finance for buying the land and building the house. She says (transcript 15/16) that, because her husband had previously been married and divorced and "although it is not a nice thing to talk about it, it can alwa happen again", they agreed that therefore the land and house would belong to her though, in order to obtain bank finance, t title would be registered in their joint names. The evidence of Mr. Masters did not appreciably support his wife's on this matter, and he explained the joint registration merely as bein "general procedure with a husband and wife" (transcript 38). They did not mention that agreement to the solicitor who acted for them "lien, as will appear, they bought some land, or to the bank when obtaining a building loan, or to the relevant authority when seeking a home grant from the Commonwealth, or to anyone in an official capacity until after the husband's bankruptcy (transcript 43). Mrs. Masters says that it was also (but later) agreed that as the property would belong to her alone, her husband would have to pay her rent, from which she in tuxn would make repayments for money borrowed from the bank, and payments of council rates and water rates, "so that the house is still eee mine" (transcript 35). Her husband concurs, though he scys that "the actual words were, it would be a form of rent' (tvanseript 42). P . They searched for land, and saw blocks costing up to Y P $10,000. On 26 October 1967 Mrs. Masters drew $1,500 From one of hcr savings accounts and paid it into her husband's business account, so that if they found a suitable block he would be able to hand over a cheque for a deposit without delay. Then they found, and decided to buy, the subject land at 9 Marden Street, George's Hall, for $3,800. Mr. Masters paid the Geposit of $380 by cheque drawn on his business account. Je an his wife had opened with the Commonwealth Trading Bank at Beverley Hills an account ("the land purchase account") (No. 380642) in their joint names. There were hut four sums of money ever deposited in that account. Apparently it was opened with a deposit by Mrs. Masters on about 15 larch 1968 of $336 drawn from one of her own accounts. On about 18 March 1968 she deposited in the land purchase account $1,100 drawn from another of her accounts and her husband deposited un it $200 drawn from his business account. A: cheque for $3,432.37 was drawn on the land purchase account on 3 May 1968 to pay for the balance 'Gf the moneys payable on the purchase of the la The drawing of that cheque put the account in debit, and it so remained until the debit balance was reduced to nil by payment into it of the fourth deposit, a cheque for $1,940.47 drawn by Mr. Masters on his business account on 19 May 1969. Mrs. Masters says that she contributed to the purchase of the land tho following amounts mentioned above: $1,500 , 1,100° $2,936 -4- She elso says that the total cost of Lhe fand,includin.,; hho: and bank charges dcbitcd to the Jand purchase account, was $3,956.47, and that the difference of $1,020.47 between that amount and $2,936 was also contributed by her, as it came from the $4,000 which her parents had lent hex husband and wha: her husband, she says, was bound to pay to her. The legal costs and disbursements and stamp duty were paid by her husbanc out of his business account. There is no evidence as to the amounts of those charges, but Mrs. Masters says thoy were covered by money provided by her. The next event was that on 19 December 1968 the Commonwealth Trading Bank at Beverley Hills announced its approval of a loan (No. SN/2-057621-05) of $8,000 to help vith the building of the house that now stands at 9 Marden Street. The contract price that had been obtained for the building was $9,236, so the difference of $1,236 had to be provaded. On 31 March 1969 that amount was paid to the credit of loun No. SN/2-057621-05. It had been drawn from a joint home savings account (No. 20222) which lir. and Mrs. Masters had opened with the Commonwealth Trading Bank with the object, which they did not achieve, of obtaining a home grant from the Commonveaith Government. Tt haa been paid into that account by Mrs. Masters and represented part of her personal savings. Her husband did not ever contribute anything to the home savings account No. 20222, and she therefore claims that she contributed a further $1,236 to the building of the house. The house was built, and the bank paia the $8,000 towards its cost. That loan of $8,000 now had to be repaid wit interest. The arrangement with the bank was that the bank vou]: automatically draw from the husband's business account each month the amount of the monthly instalment of principal and we ee terre ee rte ee we ene . ~5- interast. Until October 1974 bthat amount was $56 and thercafter it became $64. To cover such drawings, there were paid into the husband's businerr account on 8 February 1977 an amount of $700 drawn by Mrs. Masters from one of her person. accounts, and on 12 May 1970 an amount of $550 drawn from the joint home savings account No. 20222, being the balance then remaining in that account. That arrangement with the bank continued up to the time of the husband's bankruptcy on 22 June 1972. Thereafter ? monthly payments have been made to the bank in cash by Mrs. Masters, with money given her by her husband from his earnings. The first question for decision is whether the applicant is solely entitled, to the exclusion of her husband, to the land and house of which the two of them are registered as 'proprietors. From the fact that they are so registered there flows a presumption of co-ownexrship, and the burden of rebutting that presumption lies on the applicant. In my opinion she has failed to discharge that burden. Her case depends entirely on the evidence of her husban and herself, which is independently supported only as to some incidental mattérs, such as the movements in bank accounts. I was not impressed by that evidence. In her affidavit of 15 September 1977 the applicant's claim was cast differently from the way in which it was cast in her affidavit of 22 June. The contributions said to have been made by her total $9,422 in the earlier affidavit and $13,192.47 in the later. The constituent amounts of $1,500, $336, $1,100 and $1,236 are common to both; but the carlicr amount of $4,000 representing the loan from the parents becomes $1,020.47 in the later affidavit, and the two sums of $700 and $550 in the earlier -6- . appear to be absorbed in the total ot $8,000 for the bans loan in the later. , the applicant and her husband (who clearJy had an interest in supporting her evidence) were not convincing witnesses. in my view Mrs. Masters was better aware than her luusband that it might be suggested that the amounts she paid into his business account were in fact so 'paid for the purposes of the business, and there was accordingly some discrepancy between certain answers that they gave. Each was asked whether, when the $1,500 was transferred by her to her husbind' business account, that account was overdrawn. She said she did not know - "I have no knowledge and nothing to do with ny husband's business account. ... I never knew anything about t condition of his account or anything to do with the business or any other matter (transcript 20). He said his account wes overdrawn at that time: it was always overdrawn and his s.ife knew about it (transcript 39). "I have come to the conclusion that the evidence that there was an agreement that the husband should pay rent is not true. I think it was an invention (later in origin than the affidavit of 22 June 1977, in which it is not mentioned) designed to deal with the problem of the payments, after the husband became bankrupt, of instalments due under the mortgage. It was so pooxly fixed in the applicant's mind that in her oral evidence, both when examined in chief by her own counsel {transcript 15/16-17) and when cross-examined by counsel for the Official Receiver (transcript 35-36) as to the payrents she made after her husband's bankruptcy, her first thought on each occasion was to say that they were made out of moneys he paid her in discharge of an obligation, and it was oniv after prompting that she spoke of an agreement to pay rent. ~J- Ilex husband seemed similarly confused (transcript 41-42). It is inherently 32mprobubie that such an agreement was made, and £ do not accept the evidence thet it was'. . The unreliability of the witnesses as to that matter coJours the whole of theic evidence, and I do not accept their story as to the agreement about ownership. The applicant purported to have a precise recollection of the relevant conver sation, but her memory was vague as to other details, and the support given to her evidence by her husband was negligible. In my opinion the evidence on this matter fails to indicate a trust. Then it was submitted that a trust arose from the fact that the applicant paid the whole of the purchase money for land and house. But that fact is not established by the evidence. ! It is necessary now to return to the subject of the loe: of $4,000 said to have been made to lr. Masters by the parents of his fiancee (as she then was) in 1966. The sum of $4,000 was lodged to the credit of his business account on 17 October 1966. Mrs. Masters said in her affidavit of 22 June 1977 that the purpose of the loan was to enable her husband to pay outstanding de ts. In her ora] evidence in chief she said that "the $4,000 which they had originally lent to my husband was eventually repaid by the bad debtoc he had"; and, having referre to the sum of $1,020.47 mentioned above, said that the balance ($2,979.53 but referred to as $2,980) "was to be used to continuc paying off the loan and at the time of my husband becoming bankrupt that amount was still owing to me because my parents had given me that monéy as a gift". The "loan" there 'mentioned was clearly the bank loan of $8,000, because she then said that the amount of $2,880 "was used -towards the housc, = towards the mortgage yepayments". Of thal amount she caid $409 was paid into the joint home savings account and the remaining $2,571 was used "as repayments on the house mortgace' In cross-examination Mrs. Masters said (transcript 29), of "the $4,000 my parents had Jent my husband in 1966", "that money was flowing back in from his bad debtor and, knowing it was Flowing back in, ve approached ny parents to use this money for the purchase of a home, to which they agreed. None of that money was ever repaid to my parents and this is why: they had given my brother a sum of money and he was buying a house and they decided that rather than try to get us to repay that $4,000 they would give it to me as a straight out qift like they gave my brother and I did not owe them any moxe than that $4,000. It vas an outright gift to me". She also gave the following evidence (transcript 31/33): "QO. Are you able to say whether your husband in fact paid the sum of $4,000 to your parents afver that loan was made? A. Wy parents have never received any of that $4,000 back. This is why I have since said to you that they have given me that money, because there was little Likelihood of them ever getting (an;rhiig) back under the circumstances which have arisen since they made that loan. Q. Did they physically give you $4,000? A. They transferred the amount directly into my husband's business account at the time that they gave me the loan. That was I believe in October 1966." It will be observed that Mrs. Masters is there reported as speaking of the $4,000 as being a loan made to her, not to Mr. Masters. I think however that her words actually were ",.. at the time they gave him the loan". No submission was based on her having said otherwise, and I think the transcript here is in error. I have referred above to' the debit balance of the land purchase account being reduced to nil on 19 May 1969 by the deposit of a cheque for $1,940.47 drawn by Mr. Masters on his business account. In cross-examination Mrs. Masters was asked we ' whether the whole er part of that -nount of £1,2940.47 represented moneys that she had tran.ferred into the business account. She veplied (transcript 30): . "Part of it was from the $1,590 at that stage T hud transferied, and Lhe balance was from the $4,000 Loan that my puréences had extend.d as my Jusband gol the money back From his bad debtor. ..." But, as IT have said, she claims that the sum of $2,936 an contributed by her (which included the $1,500) was short of the total cost of the land by $1,020.47 and that the latter amount came from the $4,000. Thus it is difficult to see how any part of the $1,940.47 provided from her husband's business account on 19 May 1969, a year after the lard had beer paid for, could represent part of the $1,500. If the contention is that the parents (neither of whom gave evidence) assigned to their daughter the debt owed them by her husband, the evidence in my view is insufficient to establish an assignment. I am therefore unable on the evidence to conclude that the applicant's husband was under an obligation to her in relation to, or that she was entitled to receive, any part of the $4,000. It follows that in my opinion she cannot claim tha any payment madé from the $4,000 in respect of the land and house was made by her. The applicant claims that she provided: (a) moneys paid into her husband's business account: 1,500 700 (applied in mortgage repayments) 550 r tt iy i " 2, 75¢ (b) moneys paid into the land purchase account: 336 : 1,100 . 1,436 (c) moneys paid into the home savings account 1,236 5,422 ~10- (a) From the $4,000 lent hy ner parents 1,079.47 (e) moxrtaage repayments since her husband's bankruptcy on 22 Gone 1972, From what I have said above it follows that claim (d} must fail. Claim (e}) must fail also. It is based on the proposition that the payments in question were made from moncys which her husband paid the applicant pursuant to a claim by hir to pay her rent (or sume payment in the nature of rent), or because he owed money to her, or by way of gift. There is no evidence of gift. I have said that I do not accept that there was any such agreement to pay rent, or that che hie bar¢ owed anything in respect of the $4,000 lent by the applicant's parents. On the evidence there is no way in which her husband could be said to have oved the applicant money otherwise than by having failed to account for the total of $2,750 paid by her into his business account. The applicant has not proved that he did so fail, since he paid the following amounts out of his business account: (1) deposit on land . 380.00 (2) paid into land purchase account 200.00 (3) " wn " " " 1,940.47 2,520.47 (4) the unproved total of the legal costs and disbursements and stamp duty on the purchase of the land. (5) $56.00 a month until the bankruptcy (towards the total of which the applicant provided $700 + $550 = $1,250). I'therefore dismiss the application as far as it concerns the bankrupt's interest in the land and house. The car to which the application secondly refers was bought on hire purchase. It cost a total of $3,237. In hor » -JL=- aifidavit of 22 June 1977 the applicant said chat she bought it in th: names of her husband and herself. She also said in effect that $2,007.64 was pard Ly her as follows: , 1. Deposit (a) Allowed on trade-in of a car owned by her 637 {b) From her savings from wages 500 From her cheque account ,-. 100 600 1,237 2. Repayments (c) From moneys paid weekly to her by her husband in repayment of a loan 210 (d) From money she earned by sewing 200 (e) From savings af housckeeping money from husbana 360.64 776 2,007 Further, she said that "the balance of the renayments on the vehicle in the sum of $1,229.36 was paid by my husband". Tn his affidavit of 22 June 1977 Mr. liasters said "I say that the only payments nade by me in respect of the (car) have been repayments totalling $1,229.36 out of the total costs of the vehicle of $3,237". - In evidence before ine Mr. Masters said (transcript) 44-45) that it was he alone who entered into the hire purchase agreement: his wife was not a party to it. (Incidentally, his applicalion form stated that he was buying "my home".) He gave no other oral evidence about the car. in her evidence in chief before me Mrs. Masters radically departed from their earlier affidavit evidence that her husband paid the $1,229.36 She now swore that that amount was paid by her, by chegues drawn on her account. Asked how moneys got into that account "she replied (transcript 17): ' ; "he husband vee the only one workine. Me vould bras: home nis woamey and L would put. moneys jnto that choque account frum his wages to covers bilis and the car peyments. AL that pone of bi.c Of purchase, that car was mine because he still. lad another vehickic in the business. 'the trade-in was mine and the Falcon vas to bo mine. At the cvimo the iecciver took the vehicle from the business, my husband hid no vehicle so I agreed he could continue driving my car and make the xepayments for the use of the car." And later she said (transcript 18): -. "Q] If it is correct, as you contend, that the car belongs to you, why did some of the funds used to pay Nu-L'o.a come from your husband's weekly pay envelope? A. Because he had to have a vehicle to go to work and as the car was mine J said, 'You ray use the car but you may pav me for the use of it'. In the evenc, £ put tho money which ho ;aid me fos use of the vehicle for use for the repayments". Hece again the evidence does not establish the existence of an agreement that the applicant should be the owner of the property in question; and again, in my opinion, there is an invention. I do not believe the applicant's oral evidence as to the payment of the $1,229.36. The application as to the car fails. , I dismiss the application, and shall hear counsel on . the question of costs.