Supreme Court New South Wales Medium Neutral Citation: Perkins v Carey [2023] NSWSC 210 Hearing dates: 13 – 14 February 2023 Decision date: 14 March 2023 Jurisdiction: Equity - Real Property List Before: Peden J Decision: Orders appointing trustees for sale made under s 66G Conveyancing Act 1919 (NSW): see [127] Catchwords: LAND LAW — Co-ownership — Statutory trust for sale — Where co-owners are mother and adult son holding as tenants in common in equal shares — Whether son holds 50% on a purchase money resulting trust for mother — Where mother diagnosed with Alzheimer's Disease and did not give evidence — Held that mother did intend to gift 50% of Property EQUITY — Trusts and trustees — Resulting trusts — Presumption of resulting trust — Presumption of advancement — Where presumptions are not decisive — Where evidence did not establish that mother intended son to hold 50% of property on trust — Where the appropriate orders are mother and son each are entitled to 50% Legislation Cited: Civil Procedure Act 2005 (NSW) s 66 Conveyancing Act 1919 (NSW) ss 66F, 66G, 66I Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 Bosanac v Commissioner of Taxation [2022] HCA 34 Carey v Carey [2020] NSWSC 765 Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 Haset Sali v SPC Limited and Anor (1997) 67 ALJR 841 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Koprivniak v Koprivinak [2023] NSWCA 2 Muschinski v Dodds (1985) 160 CLR 583 Pascoe v Dyason [2011] NSWSC 1217 Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: William Jeremy Perkins (Plaintiff) Gregory Colin Carey (Defendant, in person) Representation: Counsel: B DeBuse (Plaintiff) Solicitors: Rockliffs Lawyers (Plaintiff) File Number(s): 2019/99156 Publication restriction: Nil Judgment Background 1. This dispute concerns the equitable ownership of an industrial warehouse property located at Links Road, St Mary's in New South Wales (Property). On title as tenants in common as to 50% each are the Plaintiff, Veronica Carey (Veronica), who is 87-years-old, and the Defendant, her adult son, Gregory Colin Carey (Greg). 2. Greg accepts that Veronica now suffers with Alzheimer's Disease. She is represented by her son in law, William Jeremy Perkins (Jerry), who is married to her elder daughter, Lynne Perkins. Since his appointment on 6 August 2009, Jerry has held Veronica's General and Enduring Power of Attorney. 3. Veronica's younger daughter, Edwina Carey (Edwina) has also given evidence to support her mother's case. For practical reasons I will refer to the parties by their first names, intending no disrespect. 4. It is not in dispute that, in 2010, Veronica paid the whole of the purchase price and associated costs for the Property. She alone borrowed money to do so. Greg appears to have operated, from the Property, a business repairing and reselling second-hand cars that had been "written off" by insurers. By about 2012 that business ceased due to legislation affecting the viability of repaired written-off vehicles. 5. The evidence as to what happened with the Property thereafter is vague. 6. In 2013, Greg's evidence was that he was seeking to clear remaining stock to clean up the premises. A real estate agent gave an opinion that, in its current state at the time, the likely sale price would be $120,000. A subsequent valuation report dated 2 June 2014 concluded that the market value of the Property was $220,000. The Property was vacant from 2014 to 2016. 7. In 2017, Greg and Veronica signed a management agreement with a real estate agent. In June 2018, the Property was leased. It remains leased. At all times until September 2022, Greg has received the whole of the rental income because the management agreement directed the agent to pay rent to Greg's personal bank account. Greg has not accounted for any rent to Veronica. 8. Pursuant to a Statement of Claim filed on 1 November 2019, Veronica seeks: 1. A declaration that Greg holds his 50% portion of the title on trust for her by reason of a resulting trust; or 2. An order appointing trustees for the sale of the Property pursuant to s 66G of the Conveyancing Act 1919 (NSW); and 3. An order that Greg account to her for 50% of the rental income he has received. 1. Greg resists such orders because he says: 1. his 50% interest was gifted to him by his mother; 2. no order for sale ought to be made when Veronica has not offered that Greg could purchase the Property at a particular value; and 3. Veronica "signed over" her 50% of the rental income to him. 1. Greg made it clear under cross-examination that he "understood the factory was half mine and half hers and she always retained that she would bequeath the - the other half in her will …". Greg sought no positive relief in relation to Veronica's 50% of the Property. 2. Therefore, the issues to be determined are: 1. Does Greg hold his 50% interest in the Property on trust for Veronica by reason of a resulting trust, or did Veronica gift it to him? 2. Did Veronica gift Greg her 50% of the rental income? 3. Should the Property be sold pursuant to s 66G of the Conveyancing Act? 1. For all the reasons set out below, I am persuaded orders for sale under s 66G should be made. However, I do not accept that Veronica is the sole beneficial owner of the whole Property. I am also not satisfied that Veronica made a gift of her half-share in the Property or the rental income in its entirety to Greg. Procedural background 1. In 2017, Jerry, as Veronica's attorney, conducted a review of her tax returns and financial records. He discovered that Veronica had purchased the Property and formed the view that Greg had caused Veronica financial disadvantage. 2. On 29 March 2019, Veronica commenced the proceedings by way of Summons. On 1 November 2019, Veronica filed a Statement of Claim and on 13 December 2019, Greg filed his Defence. Multiple affidavits were filed. 3. In June 2020, Darke J refused Jerry's application for the appointment of a tutor for Veronica because there was no medical evidence as to Veronica's incapacity: Carey v Carey [2020] NSWSC 765. 4. In April 2020, Greg commenced proceedings in the Protective List seeking orders revoking Jerry's Power of Attorney. At a hearing of those proceedings before Kunc J on 31 May 2021, counsel for Greg submitted that Jerry had improperly used the Power of Attorney by commencing proceedings against Greg in Veronica's name, contrary to Veronica's wishes. Kunc J made consent orders resolving those proceedings, including varying Jerry's power of attorney to allow Jerry to continue these proceedings on Veronica's behalf only if he received advice from Senior Counsel that her case had reasonable prospects of success. Such advice was obtained. 5. On 15 July 2022 Darke J set the matter down for hearing. On that occasion Greg represented himself. He had retained solicitors for the preparation of his defence and evidence. Greg was legally represented throughout the whole proceedings until the latter half of 2022 when "there was a dispute about the legal bill". 6. On 30 January 2023, Greg filed a Notice of Motion seeking to adjourn the final hearing for about "6 to 8 months", so he could sell his house in Pymble to pay for legal representation. According to Greg's supporting affidavit, affirmed 27 January 2023, he was "dealing with a difficult eviction" of a tenant at the house. However, no further detail was provided. His affidavit included a selling agency agreement dated August 2022 without any explanation as to what steps, if any, had been taken. Greg did assert, orally, that an auction was held on an unspecified date and that no one attended. 7. Greg did not provide any evidence as to why he had not sold his property earlier between the allocation of the hearing date and the end of January 2023. Nor did he give any evidence of what attempts he had made to engage solicitors. On 6 February 2023 the motion was heard and the adjournment resisted by Veronica. 8. The Court has inherent and statutory power to adjourn the hearing of a matter in appropriate circumstances to do justice between the parties, having regard to the effect of the adjournment on court resources, the working of the particular list and the importance of adhering to dates fixed for hearing: Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252 (Kirby P); Haset Sali v SPC Limited and Anor (1997) 67 ALJR 841 at 843-844 (Brennan, Deane and McHugh JJ); Civil Procedure Act 2005 (NSW) s 66. 9. I refused to adjourn the final hearing. The Real Property List is a busy list and Greg's evidence in support of the adjournment was threadbare and unpersuasive. The matter has been on foot since November 2019. The Notice of Motion was filed two weeks before the first day of the final hearing. Greg did not demonstrate that he is unable to obtain legal representation, including by using his other real property to secure legal costs. 10. Greg indicated that he would represent himself at the hearing, and subsequently provided written submissions, cross-examined some of Veronica's witnesses and made oral submissions. 11. As a preliminary matter, I note that I made known to the parties at the commencement of the hearing the Court's obligations when a litigant in person appears, namely that, while I would explain the process, procedure and what each party was required to do to satisfy the legal tests, the Court must maintain impartiality: As Samuels JA observed in Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 at 27: In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent. 1. When the hearing commenced, the procedure of the hearing was explained to Greg, and he acknowledged that he understood. At no time did counsel for the Plaintiff seek to amend or add to any direction or explanation provided by the Court to Greg. Greg had also been provided with a hard copy of the Court Book. At various times, Greg asked questions about the process and he was provided with answers he appeared to consider sufficient. Factual background 1. Greg remains aggrieved about his late father, Colin Carey's, estate. As he stated in his opening submissions: [T]he bulk of this case [is] about the inequalities of my late father's estate 1. It is not in dispute that when Colin Carey died in 1990, he bequeathed Greg approximately $45,000. His sisters were bequeathed a much larger inheritance including several blocks of land at Pindimar, New South Wales and at Manly, New South Wales. 2. Colin provided some explanation in his will about the disparity, to the effect that he had "amply provided" for Greg during his lifetime. Colin's will also noted that because he and Veronica had divorced and had a property settlement he did not bequeath her anything further. 3. Much affidavit evidence was devoted to a detailed analysis of Colin's will, the value of the inherence received by his children and Greg's complaints. It is not my task to determine whether the will was "unfair". I note that Greg did not challenge Colin's will or make any legal application for an adjustment pursuant to any legislation. 4. Greg suggests that his father's unequal treatment of him provides one reason, or perhaps the main reason, for Veronica to gift him the Property and the rental income. 5. Greg's evidence was that Edwina and Lynne agreed to remove one piece of real property from their interest in Colin's estate and give it to him. Greg's evidence was in cross-examination: My mother was short of funds at the time and so she kept the money from the property, and I said, "Well, you keep the property," and then she did. 1. In 2010 (some twenty years after Colin died), Veronica purchased the Property in her and Greg's name as tenants in common. Contracts were exchanged on 28 April 2010 and settlement occurred near the end of May 2010. Greg admitted in his defence that Veronica paid $319,005.94, comprising the $280,000 purchase price, stamp duty and other costs. That sum included $291,200 that Veronica transferred to the conveyancer for the settlement amount, stamp duty and registration fee on 31 May 2010. 2. Veronica financed the purchase using an overdraft facility and a mortgage over her home in Killarney Heights. It is unclear who paid the outgoings over the Property. 3. Because of her Alzheimer's Disease, Veronica was not able to give evidence. Therefore, her intention to gift all or otherwise part of the Property to Greg must be determined from the admissible documentary evidence and the evidence of witnesses as to conversations with her. Did Veronica gift 50% of the Property to Greg or does he hold it on trust for her? 1. The starting point is that the parties are entitled to that portion of the title that appears on the Register. Here, it is 50% each. 2. Veronica seeks orders that she is entitled to the whole of the Property and that Greg holds his 50% on trust for her, because she paid the whole of the purchase price, a fact which is agreed. 3. Veronica's counsel accepted that where a resulting trust is asserted and the factual circumstances could also be said to give rise to a presumption of advancement (such as here, as between mother and adult son), then the Court must determine the relevant intention of the paying party at the time of purchase. 4. In Koprivniak v Koprivinak [2023] NSWCA 2 the Court of Appeal approved the statement of principles by Ward CJ in Eq (as her Honour then was) in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [161]-[168] which were summarised by Griffiths AJA at [19]: 1. Where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it; 2. Once the primary fact giving rise to the presumption of a resulting trust is established, the burden falls on the party disputing the existence of a resulting trust to rebut the presumed fact on the balance of probabilities; 3. Consequently, the presumption of resulting trust is the starting point of a factual enquiry about the intention of the party (or parties) who provided the funds for the relevant purchase; 4. The search for the intention of the relevant party (or parties) is as to proof of a "definite", and not "nebulous", intention, as opposed to a subjective uncommunicated intention; 5. The relevant intention is to be found as at the date of purchase (or immediately thereafter), although evidence of later acts and declarations is admissible as admissions against interest; and 6. For the presumption of resulting trust to apply, the purchase price must have been provided by the purchaser in their capacity as purchaser and not, for example, by way of loan. 1. The concept of "purchase price" is not confined to consideration for the purchase. It also includes incurring liability under a mortgage, legal expenses, stamp duty and registration: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [167]-[168] (Ward CJ in Eq). Further, in terms of available evidence in determining whether there is a resulting trust, Gibbs CJ stated in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 at 590: Where both transferees have contributed to the purchase money, the intentions of both are material, but where only one has provided the money it is his or her intention alone that has to be ascertained. The evidence is admissible to establish the intention of the real purchaser will comprise 'the acts and declarations of the parties before or at the time of the purchase … or so immediately thereafter as to constitute a part of the transaction' (Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365); in addition, the purchaser may testify as to the intention which he or she had at the relevant time: Martin v Martin (1959) 110 CLR 297 at 304-5. Subsequent declarations will be admissible as evidence only against the party who made them and not in his or her favour: Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365. 1. As Veronica is the only person who paid the purchase price, and put 50% of title in Greg's name, it is only her intention at the time of the purchase or so immediately after as to constitute part of the transaction that is relevant and must be ascertained here. 2. Even if I find that Veronica intended Greg to hold 50% of the Property on trust for her, it is relevant to consider the "presumption of advancement". In Bosanac v Commissioner of Taxation [2022] HCA 34 (Bosanac). At [13], Kiefel CJ and Gleeson J observed (citations omitted): The presumption of advancement allows an inference as to intention to be drawn from the fact of certain relationships. It applies to transfers of property from husband to wife and father to child, but in Nelson v Nelson this Court accepted that there is no longer any basis for maintaining a distinction between a father and mother so far as concerns transfers of property to a child. Originally the relationships were considered by themselves sufficient to afford "good consideration" for the conveyance, but a rationale for the presumption has come to be found in the prima facie likelihood that a beneficial interest is intended in situations to which the presumption has been applied. 1. Their Honours stated at [15] and [22] that the presumption of advancement, like the presumption of resulting trust, can be rebutted by evidence of actual intention: See also Gageler J at [57] and Gordon and Edelman JJ at [115]. 2. Despite the volume of material relied upon by the parties in the proceedings, very little of it is admissible on the question of whether Veronica can establish that Greg held his 50% of the Property on trust for her. Evidence at the time or prior to the purchase 1. The only evidence of Veronica's declared intention around the time of purchase, or shortly thereafter, comes from Edwina and Greg. Edwina's evidence 1. In Edwina's affidavit she deposes to a conversation with Veronica after the purchase of the Property, which she places as "in or about 2010 or 2011": Veronica: Do you know I purchased a warehouse at St Marys. Edwina: What did you do that for, you don't need a warehouse. Veronica: Well Greg is going to fix it up and rent it out and with the rent he will pay off the mortgage I have put on Killarney. Edwina: Mum I don't like this; you know he will use you. Veronica: Edwina, I have mortgaged my home. I have paid for it. Its been put in joint names with Greg and he has promised me that he will rent out the warehouse and use the rent to pay off my mortgage [pausing] so it will be ok. Edwina: Well as long as you are confident that he will do this, then there is not much I can do about it. Veronica: I don't want you to tell Lynne about this. Edwina: Why is that so mum? Veronica: I have my reasons which I don't want to go into now but I want you to swear under oath that you won't tell Lynne. Edwina: Jesus mum, she will not like this. Veronica: Just tell me you won't tell her? Edwina: Ok I won't tell her but you should tell her cause I don't like secrets. 1. Edwina was not cross-examined on this evidence, which was not contradicted in any way by Greg or his evidence. Surprisingly, no submissions were made by either party on this evidence. 2. In assessing Edwina's evidence, I am conscious that these conversations occurred nearly a decade ago in circumstances where there has been an incomplete documentary trail. The passage of time is a relevant factor to be kept in mind in assigning weight to witness accounts: Watson v Foxman (1995) 49 NSWLR 315 at 319 (McClelland CJ in Eq). Where it is possible, I have given greater weight to oral evidence where it has been consistent with the documents. 3. I have no reason not to accept that Edwina's account of the conversation is her honest memory as at the date of her affidavit. Her evidence was cogent and clear. Edwina's evidence was also consistent with emails that she sent, for example, in February 2014 she sent an email to her mother and Greg (and others) including: I have spoken with mum yesterday and am very concerned for the stress that Greg causes mum by using her as a bank and not paying his debts back. We are not talking about small money here but Greg's name is being on Titles that mum has paid for, the loss she accrued for his bad financial advice at Port Macquarie, the money lost in Africa and whatever else there is. 1. However, even assuming Edwina's recording of the 2010 or 2011 conversation is sufficiently close to the transaction and is accurate, it still is not without ambiguity. It might equally demonstrate an intention by Veronica to: 1. Gift 50% of the Property to Greg immediately, with a separate promise by him to contribute rental income towards the mortgage; or 2. To put 50% of the Property in Greg's name, charged with the obligation to pay the mortgage; or 3. To loan Greg the money for the whole or 50% of the Property, which she had funded with her personal loan and which Greg was going to pay off in part or in full. 1. None of these scenarios was pleaded. Veronica's counsel submitted in closing: … the fact that there was an agreement that Mr Carey was going to pay money towards that loan. The details of it, we just don't know. We know that by 2014, Mrs Carey wanted the whole of it paid back but what actually happened is very uncertain. What your Honour should infer from all of the circumstances is that Mr Carey was through this business that he started, intending to repay money and that because his mother loved and supported him and there's no doubt about that, she placed half the interest in Mr Carey's name but that was on the basis that she was going to recover money. … What [we] seek to persuade your Honour of is that having paid the money, it was in the nature of a conditional gift that something was to happen. She was never giving him - just saying you've got to own half, I own half and you can do exactly what you like because if that had been the case, she would not have been concerned about the underlying debt and her concern about the underlying debt which is demonstrated again and again and is not refuted in my submission by the evidence of Mr Carey, is that he didn't intend him to have an absolute gift of the half interest. What conditions were attached to is, are difficult to assess. Your Honour asked me why am I linking them? But they were clearly linked. The only way that she was going to be repaid this money, which she had borrowed - so she had borrowed money to make this asset purchase in her name and her son's name. The only way that was going to be repaid is through the work of Greg Carey. She was in her seventies at the time. Your Honour wouldn't take the normal presumption of advancement but would in fact take the converse presumption. We talked about the duelling views in Bosanac of resulting trust. She wouldn't have put this money down intending to give an immediate half interest to her son. 1. Those submissions and the lack of pleading make it very unclear what remedy Veronica is seeking when the terms of the conditions of the suggested "conditional gift" are not identified at all. 2. It is not in dispute that Veronica took out a mortgage over her home in order to raise the money for the purchase price and at that time she was already in her late 70s and not earning a wage. However, no evidence was brought forward demonstrating her financial circumstances at the time, nor the impact of the purchase on her finances, nor any details of the loan. 3. It is not in dispute that from 2012 Veronica agitated for the Property to be sold. However, none of that evidence is sufficiently close in time to the date of purchase to be admissible when it is not an admission against interest. 4. Neither are the 2014 and 2018 wills of Veronica admissible to prove her intention at the time of purchase, as they are not admissions against interest. Instead, in them, Veronica asserts she loaned the purchase price to Greg, which is inconsistent with the suggestion of a conditional gift. Greg's evidence 1. Greg provides evidence of a conversation he says he had with his mother about the purchase of the Property. He was not cross-examined on his evidence to the following effect: 1. Between the end of 2009 and early 2010 he was looking to rent a factory, from which to run a business repairing cars. 2. He considered purchase prices of factories were relatively attractive and wanted to buy one, but did not have money to do so. 3. He had a conversation with Veronica: Greg: I am looking around at properties but with the amount of money I needed to lease one it might be a better proposition to buy one. Veronica: what sort of budget are you looking at? Greg: I should be able to find something suitable for under $500,000. 1. He found the Property and it was being sold by a mortgagee in possession. He deposes to a discussion he had with his mother: Greg: I found a property. It's for sale at what I think is a bargain basement price. I think it's probably worth about $400,000 but there is a mortgagee in possession. Veronica: Alright we will buy it. I will pay for it. We will put it as tenants in common just so your sisters don't complain. However, its really yours. You have 50% and I have 50%. I will leave you my half in my will. 1. Veronica paid the whole purchase price directly. 2. Greg did not consider the money was a loan. 3. Veronica had "always" said to Greg the following words: The Factory is yours and I will leave it you in my will. 1. However, other than the above evidence of the conversation immediately prior to purchase, it is not clear at what times these words were "always" spoken. 2. Greg's version of the conversation is vague and is likely not the whole of the conversation. The evidence of the conversation does not have any temporal precision. It rises no higher than being a conversation which purportedly occurred "at or about the end of 2009 or early 2010" when Greg was looking to buy a factory unit. Counsel for Veronica suggested that if Veronica had said those words, then Greg might have responded and behaved differently later when Veronica demanded repayment of the purchase price or the sale of the Property, but it was never suggested to him that his evidence was false. 3. While Greg was obviously motivated by a historical grievance I am not persuaded that his account of the conversation was necessarily false. It is possible to reconcile Edwina and Greg's evidence to the effect that Veronica intended to gift 50% of the Property to Greg and Greg promised to assist Veronica with her loan using income from his business. Subsequent conduct of Greg in the form of admissions against interest 1. Counsel for Veronica relied on the fact that Greg had paid Veronica money from time to time to demonstrate that she did not gift him his 50% of the Property. 2. His evidence was that in 2010 he paid his mother $25,000, representing "most of the proceeds" from the business run at the Property. He also gave her a renovated Volvo, for which she only paid $5,000, while Greg's evidence was that it was more valuable. 3. Greg accepted that he did borrow money from Veronica for matters other than the purchase price of the Property, for example, to buy stock of cars and to buy other real estate. He claimed he repaid all such loans. 4. Greg also claimed that some other money provided by Veronica to him was by way of an investment by Veronica in commercial opportunities he had identified. For example, in 2012 Veronica provided money to Greg for an investment scheme which involved the transfer of money towards the development costs and operation of a Kenyan gold mine in return for discounted mined gold. It appears that Veronica provided Greg with $145,000, which was never returned to her. Greg subsequently sought "additional funds" from Veronica for Kenyan gold. He also included the following in an email dated 28 March 2012: Yes, I will sell factory. Yes I will sell stock. Yes I will sell house down rd But this deal is genuine. There has never over 1.5 ton sold since I have been here. The deal is work 600k to you most of what you lost with David Bloomfield. 300k profit. Please stop wasting time and let me get moving. This person also needs to buy Mining equipment, Trucks, Buses etc etc. I need to know. I sent a large informed message by text to your phone and did not get a response. Please respond i I can clear up any differences when I return. The funds have been secured by police but will not be released to me as they are now in a court bond. 1. Greg's evidence is that shortly thereafter Veronica transferred $111,000 to his bank account in Kenya and also paid the bank transfer fee. Veronica also paid to Greg $63,500 for the freight forwarder. Greg's evidence was that the gold was subsequently shipped to Dubai, but he never received any gold because he was not prepared to pay the receiving agent in Dubai an amount of US$145,000 which he described as a "bribe". The gold was returned to the vendor, who refused to refund any charges. Veronica lost her money and said to Greg "That will be the end of it I suppose". 2. Veronica relies on Greg's statement in the 28 March 2012 email "Yes, I will sell factory" to support the conclusion that Greg knew his portion of the Property had not been gifted to him. I do not accept that submission. The statement can also be read as Greg offering to sell the Property so that he could use his 50% portion to pay his other debts. 3. Veronica relies upon Greg's responses to a letter dated 16 May 2014 from her solicitors, in which they ask that the Property be prepared for sale. In that letter they also assert that Veronica paid the whole purchase price, was paying outgoings and paying 19% interest on her loan for the purchase price. 4. On 27 May 2014, Greg responded indicating that he had paid some funds to Veronica and that he agreed to carry out repairs to the Property so it could be tenanted or sold. He ended the email: Additionally I am confirming that after the 2013-2014 financial year is over and the factory unit is tenanted, I will buy the premises. The earliest I can move towards this goal is mid July 2014 … 1. Counsel for Veronica relied on this email as an admission against interest, because Greg does not assert that Veronica had gifted him 50% of the Property, and that a statement that he would "buy the premises" is logically inconsistent with him having received a gift. It may be inconsistent with him having received a gift of the whole of the Property, but it equally does not exclude the possibility that he was intending to buy out Veronica's half share of the Property, rather than acknowledging that he would need to buy the whole of the Property. I do not consider this a clear admission against interest or one that bears significant weight. 2. Further, counsel for Veronica relied upon the fact that in February 2017 Greg was negotiating a property settlement following his separation from his partner and he informed Edwina that he owed Veronica $400,000. There is no indication that this amount is linked in any way to the Property, and I do not consider it an admission against interest concerning his interest in the Property. Subsequent conduct of Veronica in the form of admissions against interest 1. Greg relied upon two letters sent by Veronica to her solicitors, which on their face appear to have been signed by Veronica on October 2018 (and re-signed on 4 June 2019) and 10 June 2019. 2. An image of the October 2018 letter as found in an annexure to Greg's Affidavit of 8 August 2019 and set out below: 3. 4. That letter refers to a letter from Veronica's solicitor dated "26.09.18", which was not in evidence. There is no evidence as to the handwriting at the bottom of the letter which states "DISMISSED & NEW WILL SIGNED" followed by a signature and "4.6.19". 5. A copy of page 1 of the 10 June 2019 letter is below: 6. 7. The letter continues onto a second page: 8. 9. Greg relies on these letters as admissions that Veronica intended to gift the Property to Greg and to forgive any loans of money previously advanced to Greg. 10. Veronica's counsel submitted that the letters cannot be relied upon because the circumstances in which they were created is unknown and there is a real likelihood that Veronica was suffering from Alzheimer's Disease or "brain impairment" at the time she wrote them. Counsel made the following submissions. 11. First, there are factual infelicities or errors. For example: 1. The 2018 letter states that Colin "excluded" Greg from his will "completely". That was not accurate. A similar error is made in the 2019 letter that states that Colin "omitted to mention" Greg in his will. The fact that this error is repeated could suggest that Veronica could not recall the details of Colin's will and whether Greg was in fact unfairly treated. However, the balance of the letters appear motivated by that understanding. 2. In the 2018 letter Veronica states she has "compensated Greg partially for this omission by Colin". However, she does not explain how she has done so. For example, she does not state that she gifted any part of the Property to Greg. 3. The 2019 letter does not say that Veronica "gifted" the Property, but rather that she "assisted Greg to purchase" the Property. Further, it states that "Greg has repaid some of the money I have given him", which is not a statement against interest, but instead could be read as indicating Veronica's view that the money had been loaned, not gifted. The specific money is not identified. 1. Secondly, there is an issue about Veronica's mental capacity at the time of signing these letters and before. 2. In the 2019 letter, Veronica acknowledges legal advice that she is not able to create a new will. It is not disputed that by this stage lawyers did not consider Veronica had legal capacity to prepare a new will. However, Greg's evidence was that she did not have capacity to prepare her October 2018 will: Q. The reason you propose to challenge that is that you were of the view that as of 2 October 2018 she wasn't able to form the relevant intention to make a will? A. That's correct. Q. When you say it was about the beginning of these proceedings, you actually say that it was considerably earlier, in at least October 2018. A. 2018, yes, I can - there's -- Q. That's when the will is made. A. Yep. Q. Do you agree that you have expressed the opinion that she didn't have the capacity to make that will? A. I have, yes. Q. You say that's presumably because of her brain impediment. A. Yep - well, I wouldn't call it a brain impediment. Just - just refer to it as a condition, I think. Q. Brain condition. A. Yeah. … Q. Would you agree with me that you have already accepted that your mother had a brain condition back in October 2018 which affected her judgment? A. I would - I would agree with that, yes. 1. Greg did not accept that Veronica had serious memory issues. However, Jerry and Edwina's evidence was that the letters were inconsistent with Veronica's memory. 2. Both parties relied on an expert report of Adjunct Professor Tuly Rosenfeld dated 28 October 2020 that provided an opinion based on consultations with Veronica on 13 October 2020 and 27 October 2020. He concluded that Veronica suffered from: Dementia of at least mild to moderate severity associated with Alzheimer's Disease and Vascular Brain Disease. 1. His opinion was that she did not have the ability to instruct lawyers as she "suffered from significant cognitive impairments that … would indicate [her] inability to recall, understand or instruct in these proceedings". He considered that Veronica has "prominent problems with short term memory". For example, she could not recall these legal proceedings, nor the date, month or day of the week. 2. Professor Rosenfeld's report also included some comments in relation to Veronica's medical records and the historical treatment that had been provided to her by doctors. He noted that on 29 October 2014 Veronica commenced treatment for Alzheimer's Disease and medication was provided to her from that date onwards. Furthermore: Mrs Carey was diagnosed with a dementing illness that was treated with medications for Alzheimer's Disease from late 2014. She had been suffering from the symptoms associated with dementia from at least the year prior to her commencement of this drug and when she was first seen by the geriatrician in the memory clinic. 1. At the hearing Greg stated that he did not take any issue with the expert report. Nevertheless, Greg did not accept that Veronica was confused in preparing the letters because: [M]y mother was actually very articulate in her wording. What she was losing was – it was her – was – was – was her mobility skills. 1. I do not consider that much weight can be placed on the letters because of: 1. The uncertainty as to the circumstances in which the letters were prepared. 2. The uncertainty as to Veronica's mental capacity when the letters were prepared. This is particularly so, when the letters are read in the context of other documents prepared at around the same time that are inconsistent, such as the 18-page lawyer-drafted will in October 2018 and a letter to her solicitor dated 18 June 2020 in which she stated she wanted Jerry to remain her power of attorney and become her tutor. 3. The vague language used that does not demonstrate that at the time of the purchase of the Property Veronica had an intention to gift the 50% to Greg. Conclusion 1. On balance, I do not consider that Veronica can demonstrate that, despite having paid the purchase price and placed Greg on title for 50%, that it was her intention that he hold that interest on trust for her. 2. Instead, I consider on the balance of probabilities on the evidence before me that it was Veronica's intention to assist Greg with purchasing the Property and that he would own 50%. 3. While it is possible that Veronica was motivated to gift Greg part of the Property, because Colin's will did not leave an equal inheritance to all three children, I consider that is more objectively improbable, as it was 20 years after Colin's death. Greg's submission explaining that length of time was unpersuasive: It was just a case of, you know, pretty much getting the ball rolling as she got older because she couldn't – she didn't want to take her estate to the date she was going to pass away and then try and pry all this out. She – it was trickle fed out and it was just, you know, we looked at a lot of different investments together which has been listed in my other affidavits. We bought – we've bought shares together and things like that. We've bought parcels of that. We've bought quite a few items. They've been profitable items. 1. It is not apparent why, if Veronica was already working with Greg in investments and other ventures, she would wait 20 years after Colin's will to make a gift to Greg, especially when such timing coincided with both her own increasingly unstable financial position and poor health. 2. Greg did in fact provide Veronica with some sums of money from the business. However, there is no evidence as to the basis of that arrangement. There is no certainty in the evidence as to whether Greg's payments to Veronica were to repay other loans or were out of kindness. 3. There is simply a dearth of evidence and speculation does not assist. Is Greg entitled to Veronica's 50%? 1. Greg did plead in his defence that he was entitled to the whole of the Property because his mother had "gifted it" to him: The defendant … says the plaintiff's contributions to the purchase of the property was a gift from the plaintiff to the defendant, who is her son. The defendant has received 100% of the benefit of the property by way of an advance from the plaintiff. The plaintiff is estopped from denying the gifts pleaded … 1. Greg's affidavit evidence of the alleged gift includes the following statement by his mother: I will pay for [the Property]. We will put it as tenants in common just so your sisters don't complain. However, it's really yours. You have 50%. I will leave you my half in my will. 1. However, this claim in relation to Veronica's 50% was not pressed at the hearing and Greg indicated that he could not press for it because Veronica was still alive. Had it been pressed it could not have succeeded because: 1. Greg did not provide consideration for the promise that Veronica would gift him her 50% in her will; and 2. Even if the statement made by Veronica amounted to a representation, Greg has not pleaded nor demonstrated any detrimental reliance in being gifted 50% of the Property, so no estoppel could be made out. 1. There was no pleading nor submission that Veronica's words gave rise to an express trust in Greg's favour. Did Veronica gift Greg the rental income? 1. On 26 October 2017, Greg and Veronica signed a standard form management agreement (2017 Management Agreement) with real estate agents in relation to the future rental of the Property. 2. Greg had populated the document with the relevant personal information, including referring to himself alone as "principal" and providing his personal bank account for the payment of rental income. 3. On 9 July 2018, Greg and Veronica signed a lease over the Property for a two-year term ending on 3 July 2020, with an initial rent of $36,000 per annum. 4. In evidence was an unsigned lease granting a 6-month lease term ending on 27 February 2021, with an initial rent of $39,000 per annum. 5. Another management agreement from about July 2021 was in evidence, but not signed. Greg had inserted his bank account details for the receipt of rent. 6. The Property is currently leased with a five-year term expiring on 14 August 2027, with a 5-year option. 7. From 30 September 2022, Veronica has received 50% of the rental income. However, Greg admitted that he received all the rental income before that point in time. 8. Veronica submits that Greg must account for 50% of the rental income he has received. Greg denies he is so liable. At paragraph 11 of his defence, he pleads: … the defendant says the plaintiff waived any obligation to account to her for the rental income, and the half-share of the rental income is an advance from the plaintiff to the defendant, who is her son. The plaintiff is estopped from claiming the contributions pleaded … 1. Greg submits that by signing that 2017 Management Agreement, Veronica "gifted" the rental income to him thereafter. He says in his affidavit that upon signing of the lease at the Property, Veronica said to him: Greg, you can keep all the rent because you paid for all the renovations to fix up the Factory and you have to deal with Lynne and Jerry. 1. Further, he also says in his affidavit evidence that Veronica said to him at a time after the factory was cleared in 2016: You can keep the rent. I don't want it. It's part of your inheritance from my estate anyway. I have left my share of the factory to you in my will. 1. In cross-examination Greg stated: Q. So you think that by allowing you to collect the rent, your mother was giving it to you. Is that your logic? A. Yes. That's my logic. Yes. 1. I do not accept Veronica intended to gift all future rental income to Greg to her own detriment for the following reasons: 1. Greg accepted he was aware that from 2014 Veronica was in a difficult financial position. From that time, Veronica and her solicitors had written to Greg indicating that she was under financial stress; she had told Edwina that the rent would be used to pay the mortgage and provide her income. 2. The statement that Veronica had left her share of the factory in her will to Greg was not true. Factually, neither her 2014 nor her 2018 will referred to the Property and left it to Greg. 3. From at least 2014, Veronica was being treated for Alzheimer's Disease and her exact capacity in around 2017 and 2018 is not known. 4. To the extent that it must be determined whether Greg's evidence of the alleged conversation was accurate or not, I would not accept his evidence. It was clearly designed to assist him and appeared based on his understanding that a mere signature by Veronica on the 2017 Management Agreement demonstrated an agreement to gift him her share of the rent. I consider that inconsistent with Veronica's repeated requests, together with those of Edwina and Veronica's solicitors, that Greg repay money she had advanced to Greg and to assist her with her deteriorating financial situation. 1. I also do not accept that the mere signing of a management agreement, which provided a direction to the agent to pay rent to Greg's account, amounted to a waiver or gift by Veronica of her entitlement to rental income from the Property. 2. Greg knew Veronica was in financial difficulty, had not received any legal advice about the document she was signing and he did not suggest he explained it to her. Merely because rental income was being paid into Greg's account did not amount to an intention that she was gifting all the rent to Greg and he need not account to Veronica for her portion. 3. It is appropriate for Greg to account for 50% of the rental income he has received prior to 29 September 2022. Should s 66G orders be made? 1. Greg resists the s 66G orders because his preference was that an "income-producing asset" ought to be retained and legal and other costs of a sale ought to be avoided. In oral submissions he sought a settlement of the proceedings through Veronica offering that he could buy the Property. 2. None of those matters are relevant to the issue of making s 66G orders. Principles 1. Section 66G(1) empowers the Court to appoint trustees for sale of real property where: 1. the property is "held in co-ownership"; and 2. one of the co-owners applies for the order. 1. "Co-ownership", as defined in s 66F, includes ownership in equity in possession by two or more persons as joint tenants. "Co-owner" is defined to have a corresponding meaning. It is clear that the parties are "co-owners" and, therefore, the s 66G orders ought to be made unless there is a reason against the Court exercising its discretion to do so. 2. The principles concerning the operation of s 66G are well known: see, for example, the summary by Black J in Pascoe v Dyason [2011] NSWSC 1217, at [5]-[8]: [5] The purpose of this section is "to provide a mechanism for terminating the co-ownership [of property] where the co-owners themselves cannot agree on how the co-ownership should be determined": P Butt, Land Law , 6 th ed, 2010 at 265. In Callahan v O'Neill [2002] NSWSC 877, Young CJ in Eq observed: "It is fairly clear that, as a general rule, any co-owner holding at least 50% of a parcel of real property is entitled almost as of right to an order for partition or sale under s 66G of the Conveyancing Act. It is only in situations where it would, under settled principles, be inequitable to permit such an application, including cases where there has been a contract not to make an application that the order may be refused. This appears from cases such as Ngatoa v Ford (1990) 19 NSWLR 72 and Williams v Legg (1993) 29 NSWLR 687." [6] Although the Court has a discretion whether or not to make an order under this section, the grounds on which the Court will ordinarily refuse to make it are limited. For example, if it is inconsistent with a proprietary right or a contractual or fiduciary obligation, and there is no general jurisdiction to refuse to grant such an order on the basis of hardship or unfairness: Stephens v Debney (1960) 60 SR (NSW) 468; Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068; Ngatoa & Anor v Ford & Anor (1990) 19 NSWLR 72; Williams v Legg (1993) 29 NSWLR 687; Westpac Banking Corporation v Sansom (1994) 6 BPR 13,790; Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685. In Hogan v Baseden (1997) 8 BPR 15,723 at 15,723, Mason P observed that it "would not be a proper exercise of discretion of the power to decline relief under s 66G ... to refuse an application on grounds of hardship or general unfairness." His Honour also noted that: "[I]n the unhappy event that the parties are unable to settle their differences then the making of an order appointing trustees for sale seems inevitable unless the respondent could establish a legally binding agreement not to put her out of occupation of her home, or circumstances that would ground some estoppel to similar effect." (at [59]). [7] In Chalhoub v Chalhoub [2005] NSWSC 572 at [17]-[18], McLaughlin AsJ observed that, where a plaintiff and defendant are registered as tenants in common in equal shares, then prima facie the plaintiff is entitled to relief by way of an order under s 66G of the Conveyancing Act for sale of the relevant property and for the division of the net proceeds of such sale between the plaintiff and the defendant in equal shares. It was for the defendant, who denied the plaintiff's entitlement to such relief, to establish that the legal rights of the parties consequent upon their status as registered proprietors as tenants in common in equal shares were in some way altered by the invocation of equitable rights recognised by a Court of Equity or that there was some other reason why the Court should, in the exercise of the limited discretion reposed in it by s 66G of the Conveyancing Act , decline to make an appointment of statutory trustees or sale of the subject property. [8] In Cain v Cain [2007] NSWSC 623 at [9]-[10], Young CJ in Eq noted that the Court will usually consider it appropriate to make an order under s 66G of the Conveyancing Act unless persuaded by cogent arguments from those who oppose. His Honour then noted Counsel's summary of the categories of cases in which the Court has declined to grant such an order as including: where the legal title is held by trustees and the trust instrument contains its own procedure for sale; where the plaintiff's conduct rates as an estoppel against the sale; and where an order would be incompatible with a contractual or equitable duty binding the applicant. In Tory v Tory [2007] NSWSC 1078 at [42], White J noted that an order under s 66G of the Conveyancing Act "is almost as of right unless on settled principles it would be inequitable to allow the application", and observed that an application would be refused if making the order would be inconsistent with a proprietary right or contractual or fiduciary obligation or on the basis of conventional estoppel or equitable estoppel. In Spathis v Nanos [2008] NSWSC 418 at [19]-[20], Jagot AJ observed that the discretion was not at large and is not to be exercised by reference to personal views about hardship or unfairness. The Court of Appeal also noted that the discretion to refuse relief under s 66G of the Conveyancing Act was a "limited one" in Ross v Ross [2010] NSWCA 301 at [36]; see also National Australia Bank Ltd v Pasupati [2011] NSWSC 540 at [20]. 1. As noted by Black J, there is no general jurisdiction to refuse to grant such an order on the basis of hardship or unfairness: Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 at [36] (Tobias AJA, with whom Bergin CJ in Eq agreed). Application 1. Greg did not raise any contractual or proprietary right in the Property to resist orders appointing trustees for the sale of the Property. Greg's submission was: I've never actually had an opportunity to purchase the other half. So if they want to enforce the 66G, prior to the 66G being taken out, I believe I should be offered to buy the property at‑‑ …‑‑at 50% of the market value. 1. Merely because he would like to negotiate a price at which to purchase the Property is not a reason for the Court not to make orders. The parties have had many years to negotiate an outcome including for s 66I orders allowing Greg to bid at the sale, and have failed to do so. 2. Veronica proposes solicitors Brendan John Miller and Michael Garvin as trustees to sell the Property, who have consented to so act. 3. Greg does not provide alternative trustees, nor suggest that the trustees put forward by Veronica are unsuitable. He did query the necessity for the appointment of two trustees, and I explained the operation of s66G(3)(a) to him. 4. I am satisfied that the proposed trustees are fit and proper persons to act as trustees for sale and that they have the necessary skill and experience to do so. I am satisfied that they ought to be paid for their role at their disclosed hourly rates, which are reasonable and which I will cap in the first instance at $5000 each plus GST. Costs 1. The plaintiff seeks her costs in the summons and statement of claim. The usual order in a s 66G application is that the costs of the summons are paid out of the net proceeds of sale prior to any distribution amongst the co-owners: see Kardos v Sarbutt (No 2) [2006] NSWCA 206 at [28] (Brereton J, with whom Basten JA and Hunt AJA agreed). 2. However, here, Veronica also sought a declaration that Greg held his 50% interest on trust for her by reason of a resulting trust and that Greg account for 50% of the rental income he has received from the Property. 3. Veronica failed in her allegation of a resulting trust, but succeeded in relation to the account for rental income. 4. In the circumstances, exercising my discretion as to costs in the absence of any submissions as to an appropriate order, I consider it appropriate that 50% of Veronica's costs of the proceedings are paid from the proceeds of sale before distribution between the parties. Orders 1. For the reasons above I make the following orders: 1. Order pursuant to section 66G of the Conveyancing Act 1919 (NSW) that Brenden John Miller and Michael Garvin (the Trustees), be appointed as Trustees for the sale of the property known at Links Road St Marys NSW 2760 being the whole of the land in certificate of title folio 15/SP78582 (the Property). 2. Order that the Property vest in the Trustees subject to any encumbrances affecting the entirety of the Property. 3. Order that the Property be held by the Trustees on statutory trust for sale, under Division 6 of Part IV of the Conveyancing Act 1919. 4. Order that the Property be sold, and that the Trustees do all such acts and things and sign all such documents as may be necessary to place the property on the market and cause the property to be sold. For the purposes of such sale, the Trustees be authorised to proceed as follows: 1. One or more Real Estate Agent(s) may be chosen and appointed by the trustees (the Real Estate Agents); 2. The sale price shall be nominated by the trustees after consultation with the Real Estate Agent(s) and any registered real estate valuer from whom he may choose to obtain a valuation and/or otherwise consult; 3. The Property may be marketed as the Trustees think fit after consultation with the Real Estate Agent(s); 4. The Property may be sold by private treaty or at an auction as the Trustees think fit after consultation with the Real Estate Agent(s); and 5. A solicitor or licensed conveyancer may be chosen and appointed by the Trustees to act for them in their capacity as vendors of the Property. 1. Order pursuant to s 66I of the Conveyancing Act 1919 (NSW) allowing any of the co-owners of the Property to purchase the Property whether at auction or otherwise on terms that the face value and stamp duty value of the contract for sale and transfer will be the same value as if the purchaser was not a co-owner. 2. Grant leave to the Trustees to apply for directions and orders as an applicant in a Notice of Motion in these proceedings. 3. Declare that the Defendant has collected rent paid for the use of the Property as agent for all co-owners prior to 29 September 2022 and is liable to account to the Plaintiff as co-owner as to 50%. 4. Order the Defendant to provide to the Plaintiff and Trustees within 14 days all information as to the rent received by him, including information held by third parties, that he is entitled to obtain. 5. Directs the parties to confer with the aim of reaching a consent position by 12 May 2023 as to the amount of rent paid for the Property to the Defendant prior to 29 September 2022. 6. Failing any agreement by the parties as to the amount of rent received by the Defendant in relation to the Property the Trustees are to provide both parties with an opportunity of making submissions about the quantum of rent and thereafter the Trustees are to quantify the total rental amount (Total Rent). 7. Order that the funds of the sale (Proceeds) held on trust by the Trustees be distributed as follows: 1. In payment of the expenses and disbursements of the Trustees in respect of the sale of the Property, including their own costs; 2. 50% of the Plaintiff's legal costs of the proceedings; 3. 50% of the Total Rent amount to the Plaintiff; and 4. The balance of the Proceeds are to be distributed 50% to the Plaintiff and 50% to the Defendant. ********** Amendments 14 March 2023 - Amendment to coversheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2023