BROWN v BROWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and CRIPPS JA 28 July 1993, 29 September 1993 [1993] NSWCA 38 TRUSTS — resulting trust — presumption of advancement — whether applicable to gifts by mother to sons — held: Applicable but (by maj) presumption rebutted by evidence. Dullow v Dullow & Anor (1985) 3 NSWLR 531 (CA) applied. TRUSTS — resulting trust — contribution to purchase of property — held: Resulting trust in proportion to contributions to purchase price of property upheld. PRACTICE & PROCEDURE — Court of Appeal — new grounds not argued below — whether pure point of law — whether additional evidence necessary — held: Argument permitted. TRUSTS — implied trusts — presumption of intention — contribution by two or more persons to the purchase property conveyed to them gives rise to the equitable presumption that they hold the legal estate in trust for themselves as tenants in common, in shares proportionate to their contributions. In 1958 a widowed mother, with two adult sons and two adult daughters, contributed almost half of the purchase price of a dwelling house in which the family went to live. Title to the house was taken in the name of the sons. Many years later there was a dispute as to beneficial ownership. The trial judge found on the evidence that the mother had no intention of making a gift to her sons, or of allowing them to have the whole beneficial ownership of the land. He rejected the sons' evidence that there was an agreement under which the mother was to be allowed to live in the house during her life but they were to be the full owners of it. In those circumstances the trial judge applied the presumption of a resulting trust and held that the mother had a beneficial interest in the land proportionate to her contribution to the purchase price. HELD - (1) (by the Court) The case was to be resolved by applying the relevant presumptions of equity. Calverley v Green (1984) 155 CLR 242, Dullow v Dullow (1985) 3 NSWLR 531 applied. (2) (by the Court) There is no rigid distinction to be drawn as between payments to children a father and a mother, and the mere fact that the payment in question was made by a mother rather than a father was not decisive of the case. Bennet v Bennet (1879) 10 Ch D 474; Scott v Pauly (1912) 24 CLR 274; Pickens v Metcalf and Marr (1932) NZLR 1278 discussed. (3) (Gleeson CJ and Cripps JA, Kirby P dissenting) However, the findings of fact made by the trial judge, which were correct, and the circumstances of the case, negated any potential presumption of advancement, and left standing the presumption of a resulting trust, upon which the trial judge's decision was correctly based. Gleeson CJ The late Mrs Alice Veronica Brown had two sons and two daughters. In 1987 she moved into a nursing home, where she died, in August 1990, aged eighty-nine. For about thirty years before she moved into the nursing home Mrs Brown had lived with one of her sons, and his family, in a house at 2 UNREPORTED JUDGMENTS Gladesville. Title to the land on which the house stood was in the name of Mrs Brown's two sons. In early 1990, a few months before she died, having altered her will to leave the whole of her estate to her daughters, Mrs Brown commenced proceedings in the Equity Division claiming a declaration that she had a beneficial interest as a part-owner of the Gladesville land. The precise nature of her claim will appear in more detail below. The hearing of the action commenced before Mrs Brown died, and concluded after her death. Her claim was successful. Bryson J granted the principal relief she sought, and directed an enquiry as to certain outstanding issues. This is an appeal, by leave, against the declarations and orders made by Bryson J. The appellants are Mrs Brown's two sons. The respondents are her two daughters in their capacity as legal personal representatives of her estate. The central issue of fact at the trial concerned certain arrangements between Mrs Brown and her sons in 1958, and the intentions of the parties to those arrangements. The resolution of that issue was complicated by the circumstance that, although Mrs Brown swore affidavits setting out her version of the events in question, and giving an account of her intentions, she was too ill to be cross-examined. Bryson J, pursuant to the discretionary power conferred by the rules (SCR Pt38 r9(3)), permitted her affidavits to be read. However, in his judgment his Honour made it plain that he was conscious of the difficulty which that created for his task of fact finding. The background to the dispute was as follows. In 1951 Mrs Brown and her late de facto husband became the registered proprietors of a dwelling house at Marrickville, where they lived with their four children. It seems that the Marrickville property was put on the market in about 1957, and it was still for sale when Mr Brown died in 1958. At that stage Mrs Brown's eldest daughter, who had married, was living elsewhere, but Mrs Brown and her three other children were living in the Marrickville house. Mrs Brown was aged 58, and her four children were respectively aged 31, 26, 24 and 22. The daughters were the oldest and the youngest; the sons came in between. The family decided to move to larger premises, and a property known as 118-120 Morrison Road, Gladesville was purchased. The property comprised lots 100-101 of the relevant Deposited Plan. The Marrickville property, which was by then the sole property of Mrs Brown, was sold for £2,595. The Gladesville property was purchased for £4,800. Title to the Gladesville property was taken in the names of Mrs Brown's two sons. It was common ground, however, that she contributed, out of the proceeds of the sale of the Marrickville property, the sum of £2,125 which went towards the purchase price of the Gladesville property. The balance of the purchase price was paid by the sons, who borrowed money on the security of a mortgage. The sum of £2,125 represented the greater part of Mrs Brown's assets. Following the purchase of the Gladesville property, Mrs Brown, her two sons, and her younger daughter, took up residence there. When the younger daughter married she moved out, leaving Mrs Brown and the two sons in residence. Later, one of the sons, having married, moved out, so that finally the house was occupied by Mrs Brown's son Jack, Jack's family and Mrs Brown herself. That was the position at the time Mrs Brown moved into a nursing home. In 1972, 1981 and 1986 some extensions were made to the Gladesville premises. These were in large part carried out by the sons themselves, who were tradesmen, and there was no evidence as to how much they cost. There was evidence as to the nature and purpose of the extensions, some of which added to URJ BROWN v BROWN (Gleeson Cu) 3 the accommodation that was made available for Mrs Brown, and some of which added to other accommodation. Bryson J, for reasons given in his judgment, took the view that the extensions were not, in the circumstances, of particular relevance to the decision he had to make, and I see no reason to disagree with that. In 1985 the two sons purchased some nearby land at Gladesville, and then, in 1987, they effected a sub-division and sold, for an amount in excess of $600,000, a parcel of land that consisted of part of the original lot 101, and the additional land that they had recently acquired. This, it seems, precipitated the family dispute that ended up in the Equity Division. Mrs Brown claimed that she then became aware, for the first time, that title to the Gladesville property was in the name of her two sons, and that they asserted that she had no legal interest in it. In 1990 she commenced these proceedings claiming, in effect, that she was a beneficial part-owner of the land to an extent that equated with her proportionate contribution to the original purchase price of the property (ie, in the proportion of 2125 to 4800). Mrs Brown, in her affidavits, and the two sons, in affidavit and oral evidence, gave quite different versions of the arrangements made in 1958 in relation to the purchase of the Gladesville property. In the end, Bryson J found most of that evidence to be unreliable. His Honour evidently took the view that, at the very least, it represented an attempt to reconstruct, more than thirty years after the event, conversations and agreements about matters which the parties had never, in truth, addressed at the time. Curiously, although there were solicitors involved in the 1958 dealings, nobody suggested that the solicitors had been asked to advise in the matter now in dispute. Mrs Brown had a solicitor acting for her on the sale of the Marrickville property, and the sons had a different firm of solicitors acting for them on the purchase of the Gladesville property. The sale of Marrickville and the purchase of Gladesville were completed simultaneously, and Mrs Brown's solicitor obviously knew that the bulk of the proceeds of the Marrickville sale would be applied towards the purchase price of Gladesville. However, there was nothing to show that either Mrs Brown's solicitor, or her sons' solicitors, had any role to play in connection with whatever arrangements were entered into between Mrs Brown and her sons concerning her rights, if any, in relation to the Gladesville property. There was certainly no written record of any such arrangements. The bare objective facts were that title to the Gladesville property was taken by the sons only, but the money that was used for the purchase came partly from Mrs Brown and partly from the sons. The defence case at the trial was that, in 1958, an oral agreement had been made between Mrs Brown and her sons to the effect that, in consideration for her contribution towards the purchase price of the Gladesville property, Mrs Brown was to have the right to reside in the property for the remainder of her life. Subject to that, there was no suggestion, and it was nobody's intention, that Mrs Brown would have any interest, legal or beneficial, in the property. When the sons were examined about their version of the 1958 arrangement, their evidence became seriously confused and contradictory. They began to talk, for example, about a loan, as though there was some kind of agreement that Mrs Brown might be entitled to have her contribution repaid to her. It became apparent, however, that they were not capable of giving a coherent account of any loan arrangement. They could not explain when, or in what circumstances, the loan might have to be repaid. There was a substantial inconsistency between a loan, on the one hand, and the agreement which they asserted in their defence, 4 UNREPORTED JUDGMENTS which involved a payment to them by Mrs Brown on condition that in return they would accommodate her for the rest of her life. So far as might be gathered from the terms of the affidavits she swore, Mrs Brown herself would not have done a much better job of expressing any agreement she made with her sons, or of giving an account of her intentions. Her affidavits were internally inconsistent. She was adamant that she never agreed that she would have no interest in the Gladesville land, and she maintained that prior to 1987 she did not know that title had been taken in the names of her sons only. However, her evidence as to what she intended or believed on the subject of title to the land was quite confused. At one stage she said that she intended that title would be in her name alone, and she believed that was what had been put into effect. At another stage she said that she thought that title might have been in the joint names of herself and her sons, and she suggested that she intended that they were to own it in proportion to their respective contributions to the purchase price. As Bryson J observed, these unconvincing attempts by all parties to explain their respective understandings of the 1958 arrangements, when considered in the light of the absence of any contemporaneous documentation of those arrangements, strongly suggested that in truth no agreement about the matter of ownership of the Gladesville land had been made at all. We have not had the benefit of hearing any of the witnesses, and Bryson J did not have the benefit of hearing Mrs Brown. Nevertheless, a reading of the transcript gives the strong impression that in 1958 neither Mrs Brown nor her sons thought through the consequences of their transaction, or made any agreement about title to the land that was being purchased. This is not particularly surprising. The persons involved were, at the time, of relatively modest means, and the dealings were between a mother and her two sons. It is unfortunate that it was not possible to question Mrs Brown as to whether she had taken any advice from her solicitor about the matter. However, Bryson J had to do his best with the material before him, and the fact that the relevant events had occurred so long ago added to the difficulty of his task. For reasons that appear to me persuasive, his Honour rejected the evidence of the sons as to the arrangement they had made with their mother. His approach to the evidence of Mrs Brown was circumspect, in the light of the fact that she was not available for cross-examination. His Honour expressed his conclusions as follows: "None of the defendants' evidence left me with any impression that they were clear in their recollections or confident in their evidence of these conversations from long ago; in my finding Mr Raymond Brown recollects very little of them, while Mr Jack Brown recollects practically nothing. Merely on appraisal of their own evidence taken as a whole, including cross-examination, with the probabilities of the matter, I do not find that there was such an arrangement as they allege; I find that there was no such arrangement. In the circumstances Mrs Brown's not being available to be cross-examined does not seem to me to be of crucial importance. In her affidavits she made unqualified statements which would establish that she did not intend to make a loan or a gift, that she had no agreement with the defendants relating to ownership or title to the property, and that it was only in recent times that she learnt that she was not one of the registered proprietors of the Gladesville URJ BROWN v BROWN (Gleeson Cu) 5 property. When I look at these with the conclusion which I would base on the defendants' evidence, there is no reason in substance why I should not accept what she says, and I do accept it. I find that when Mrs Brown contributed moneys to the purchase of the Gladesville property she did not intend that the beneficial ownership of the property should be otherwise than in proportion to contributions made by her and the defendants to the purchase price. I further find that she was not a party to any arrangement with her sons which would affect or alter the beneficial interests which would arise under the law relating to resulting trusts." His Honour then went on to apply what he described as the law relating to resulting trusts to uphold Mrs Brown's claim. To that law I will return. No successful challenge has been made to the findings of fact made by Bryson J. It is important to note the negative and qualified form in which his Honour's ultimate findings were expressed. He did not accept the whole of Mrs Brown's affidavit evidence as to her positive intentions, confused as that evidence was. Rather, in the light of the whole of the evidence he concluded that Mrs Brown did not have any intention concerning the potential ownership of the Gladesville property to the effect that such ownership should be otherwise than in proportion to contributions made by her and her sons to the purchase price. He found that she was not a party to any arrangement with her sons that would alter what he regarded as the interests that would arise in the law relating to resulting trusts. In short, his Honour rejected the evidence of the sons as to their version of the arrangements, and he accepted the evidence of Mrs Brown insofar as she said she had no intention of making a loan or a gift, and that she had no agreement with her sons concerning ownership or title to the property. He made no positive finding accepting her evidence as to her specific intentions, and, for my part, Iam far from clear as to the precise effect of that evidence. It was submitted on behalf of the appellants that, in the fact finding process, his Honour failed to give due weight to the consideration that Mrs Brown was not available for cross-examination. This submission does less than justice to his Honour's reasoning, and, in particular, it ignores the cautious nature of the findings which his Honour made. A number of particular submissions on matters of fact that had been put to Bryson J and considered by him were reiterated on this appeal. For example, it was said that there were indications in the evidence that assertions by Mrs Brown that in 1958 she handed over to her sons the whole of the management of her affairs were unreliable. There is much force in the argument that Mrs Brown's case appears in a number of respects to have been overstated in the affidavits that were prepared for her, and I have little doubt that if she had been cross-examined she would have been forced to resile from some of statements she made in them. Even accepting, however, that she was probably, like her sons, endeavouring to reconstruct in her own favour a version of an agreement about a matter that was in truth never considered in any detail, or worked out in any clear fashion, the ultimate conclusion reached by Bryson J appears to me, on the probabilities, correct. It is necessary, then, to consider the legal consequences of that conclusion. The decision of the High Court in Calverley v Green (1984) 155 CLR 242 establishes that the consequences of the facts found by Bryson J are to be worked out by reference to the presumptions of equity which are applicable in determining the beneficial ownership of property which is purchased and 6 UNREPORTED JUDGMENTS transferred into the legal ownership of persons otherwise than in accordance with their respective contributions to the purchase price. As Deane J observed (at 266) those presumptions are well entrenched landmarks in the law of property and cannot be discarded by judicial decision. The contrary view of Murphy J stood alone. The continuing applicability of the presumptions was acknowledged by this Court in Dullow v Dullow (1985) 3 NSWLR 531 (see Hope JA at 535-536). For the purposes of a case such as the present, the starting point is the implied trust (sometimes referred to as a resulting trust) which, subject to an important qualification, arises where the legal title to property is vested in someone other than the person who provided the purchase money. The presumption was expressed by Deane J (at 266-267) as follows: "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 holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it." The principle involved in the presumption was stated in Dyer v Dyer (1788) 2 Cox 92 at 93; 30 ER 42 at 43 by Eyre CB as follows: "The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several, whether jointly or successive, results to the man who advances the purchase money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of common law, that where a feoffment is made without consideration, the use results to the feoffor." That presumption was applied by Bryson J, who upheld Mrs Brown's claim to a beneficial interest in the subject land proportionate to her contribution to the purchase price. The equitable presumption can be rebutted or qualified in a given case by evidence of a contrary intention common to the contributors of the purchase price (Calverley v Green, per Mason and Brennan JJ at 261). The findings of fact made by Bryson J negate any such common contrary intention in the present case. They also negate a finding of a unilateral intention on the part of Mrs Brown to make a gift to her sons (cf Gibbs CJ at 251). Cases arising out of contributions by spouses, or other persons, to the acquisition or upkeep of property in which they have cohabited can give rise to problems which courts have attempted to resolve by reference to inferred intention (Gissing v Gissing [1971] AC 886) or to concepts of unconscionability and unjust enrichment (Baumgartner v Baumgartner (1987) 164 CLR 137). Such problems do not arise here. The essential facts are uncomplicated. The purchase price of the Gladesville land was contributed by Mrs Brown and her two sons, but legal title was taken by the sons only. There was no relevant agreement or common intention as to beneficial ownership. In accordance with the contemplation of the parties Mrs Brown and, first, both, and later, one, of her sons resided on the land. That provides no basis for constructing equities that would defeat the presumption earlier stated. However, the basic assumption is subject to a qualification which, where it applies, can reverse the practical result. This qualification is that which is involved in what is called the presumption of advancement. There are exceptional cases, usually described by reference to a certain relationship between the parties, where equity assumes that the proper inference is the URJ BROWN v BROWN (Gleeson Cu) 7 contrary of that giving rise to an implied or resulting trust of the kind earlier described. In such circumstances the assumption is not that a trust arises but, rather, that one party intended to benefit the other and that the latter was intended to have both beneficial and legal ownership of the property in question. That presumption, where it exists, is also rebuttable. The relationship between the basic presumption of a resulting trust and the presumption of advancement is important in a case such as the present. In his Lectures on Equity (1936) at p77-p80 F W Maitland referred to the presumption of advancement as a sub-rule that qualifies the presumption of a resulting trust. Lord Eldon in Murless v Franklin ((1818)1 Swans 13 at 17; 36 ER 278) referred to the general rule that on a purchase by one person in the name of another the nominee is a trustee for the purchaser, which is subject to an exception where the purchaser was under a species of natural obligation to provide for the nominee. In Napier v Perpetual Trustee (WA) ((1980) 55 ALJR 1 at 3) Aickin J also spoke of the presumption of advancement as an exception to the primary presumption of a resulting trust. If, in a given case, either there is no presumption of advancement or the presumption of advancement is rebutted in evidence, then the exception does not apply and the basic presumption operates. This is exactly what occurred in Calverley v Green. The parties in that case were not married, but shared a de facto relationship. The man provided money which went to acquire real estate in their joint names. Of the four judges in the majority, three (Mason, Brennan and Deane JJ) held that it was settled law that the presumption of advancement that applies where a husband purchases property in the name of his wife does not apply in the case of a de facto relationship. Therefore, they said, the basic presumption of a resulting trust applied. On the other hand Gibbs CJ held that there was a presumption of advancement by reason of the relationship between the parties, but it was rebutted by the facts of that particular case. In the result, therefore, he also held that the presumption of a resulting trust applied. The learned author of Pettit, "Equity and the Law of Trusts" (6th Ed p123) speaks of evidence which rebuts the presumption of advancement as reinstating the presumption of a resulting trust. (See also Malsbury v Malsbury (1982) 1 NSWLR 226 at 229 per Needham J). As it happens, the facts of the present case raise a vexed question as to whether the relationship between the parties of the relevant transaction was such as to give rise, in equity, to a presumption of advancement. In Calverley v Green (at 268-269) Deane J said that the categories of relationships that give rise to a presumption of advancement ought not, at least so far as the High Court is concerned, to be regarded as closed, and acknowledged the possibility that such categories may need to be adjusted to reflect modern conditions. However, he said that any such adjustments would need to be made by reference to logical necessity and analogy, and not by reference to idiosyncratic notions of what is fair and appropriate. Historically, the relationship between a father and child has been treated as the classic example of one giving rise to a presumption of advancement. There has been some disagreement as to the precise reason for this. In Wirth v Wirth (1956) 98 CLR 228 Dixon CJ (at 237) said that the rationale of the presumption was the greater prima facie probability of a beneficial interest being intended in the situation to which the presumption has been applied. As was noted above, Lord Eldon, in Murless v Franklin referred to cases where one party to a relationship is under a natural (or moral) obligation to provide for the other. 8 UNREPORTED JUDGMENTS The relationship between a mother and child has, in the past, been held not to give rise to the presumption of advancement (Bennet v Bennet (1879) 10 Ch D 474; Scott v Pauly (1912) 24 CLR 274; Pickens v Metcalf and Marr (1932) NZLR 1278). However, doubts have long been expressed as to the rigidity of this distinction. In Scott v Pauly (above at 281-282) Isaacs J said: "The case of a father having an obligation in conscience to provide for a child, either unadvanced or treated as unadvanced, is different from the case of a mother dealing with a daughter, and particularly where the daughter is married and in fairly good circumstances. In the first case the facts are in themselves sufficient to rebut the presumption of a resulting trust; in the second, according to Bennet v Bennet, they are not. That case, drawing a distinction between father and mother, has not, so far as I am aware, been judicially doubted. Some text writers doubt it, while others do not. It is unnecessary now to consider its correctness, and I assume it is right. If it ever comes to be questioned, it may be that the solution will be found in the circumstance that the 'presumption' there spoken of is an inference which the courts of equity in practice drew from the mere facts of the purchaser being the father, and the head of the family, under the primary moral obligation to provide for the children of the marriage, and in that respect differing from the mother. In case of his death the inference called a presumption as to the mother might well be different from that where the father was still alive." In the United States the presumption applies in the case of mothers as in the case of fathers (Scott on Trusts, 4th Ed, Vol 5 p182). The position in Canada appears to be unresolved (Waters, The Law of Trusts in Canada, 2nd Ed p316). In this Court, in Dullow v Dullow (1985) 3 NSWLR 531 at 536, Hope JA said that the state of authorities would seem to leave it open for judicial decision to allow the same presumption to be made in the case of a gift by a mother to her child as is made in the case of a gift by a father to his child. (See also Ford & Lee, "Principles of the Law of Trusts", 2nd Ed, 1990, p982-p983). We are here dealing with a transaction that occurred in 1958. In the social and economic conditions which apply at the present time the drawing of a rigid distinction between male and female parents, for the purposes of the application of the presumptions of equity with which we are concerned, may be accepted to be inappropriate. I would be prepared, although with rather less conviction, to say the same about conditions in 1958. I would, therefore, not decide this case upon the basis that, Mrs Brown being a mother rather than a father, the presumption of advancement did not apply. However, the facts as found by Bryson J, and the objective circumstances, rebut a presumption of advancement. His Honour found that Mrs Brown did not intend to make a gift (or a loan) to her sons. Moreover, where a widowed mother, of modest means, makes a payment of substantially the whole of her assets to contribute to the purchase of real estate, and legal title to the real estate is vested in her adult, able-bodied sons, the facts seem to me to point against an intention of advancement. Mrs Brown had no moral obligation to make such provision for her sons at the expense of her estate. The sons, it may be remembered, alleged that she was making a bargain with them that was partly for her own benefit, but that allegation was rejected by the trial judge. Since there was no operative presumption of advancement, the basic presumption of resulting trust applied. That is the presumption invoked by Bryson J. URJ BROWN v BROWN (Kirby P) 9 The appeal should be dismissed with costs. Kirby P This appeal raises two points. The first is whether the presumption of advancement, available to rebut a presumption of a resulting trust, is available in the case of a gift by a mother to her children as it would be in the case of a gift by a father to his children. The second point is whether, in the way the present trial was conducted, it is open to the appellants to raise the first point in the appeal, without occasioning impermissible procedural unfairness to the respondents. A mother surrenders her sole property interest to her sons The fundamental facts were uncontested. The late Mrs Alice Brown and her reputed husband had four children. These children are now the parties to these proceedings. The sons are the appellants. The daughters, as trustees of Mrs Brown's will, to which probate has now been granted, are the respondents. In the 1950s the Brown family lived together in a property at Marrickville, owned by Mrs Brown and her husband. The husband died in 1958, by which time the eldest daughter had left home. After Mr Brown's death, the sons, whose business was prospering, proposed that the family should move to a larger home at Gladesville, comprising a property consisting of two lots. This was done. In the course of the purchase of the Gladesville property, Mrs Brown effectively surrendered her interest as owner of the Marrickville home. The Gladesville property was acquired in the name of the sons only. The purchase price was achieved through payment by Mrs Brown, out of the proceeds of the sale of Marrickville, of 2,595 pounds. The sons contributed the balance of the total purchase price of 4,800 pounds. Mrs Brown continued to live with her children at Gladesville. In time, the youngest daughter and one of the sons moved out of that home. Mrs Brown remained living at the Gladesville home, with her son Jack and his family, until she moved into a nursing home soon after she initiated these proceedings. It appears that the event which precipitated the suit was the decision of the sons to sell one of the two lots of the land they had purchased at Gladesville. That sale realised for the sons more than $600,000. It was at that time that the state of the legal title, being in the names of the sons alone, first came (as it was said) to the attention of the daughters and Mrs Brown. Mrs Brown explained the commencement of the proceedings, in the Equity Division of the Supreme Court, as having been based upon her determination that her daughters would share in the benefits of her estate. Notwithstanding this assertion, Mrs Brown, at about this time, changed her will to one which, in effect, gave the entirety of her estate to her daughters. Sadly, prior to the proceedings, there was much acrimony between Mrs Brown and her sons. In an affidavit which she swore, she complained, amongst other things, that they had ceased visiting her in the nursing home. By her statement of claim, Mrs Brown contended that the sons "hold and have at all material times held the Gladesville land upon a resulting trust" for herself and themselves in proportion to their respective contributions towards its purchase. Orders were sought in respect both of the remaining lot at Gladesville, (owned by the sons and occupied by Mr Jack Brown and his family) and the proceeds of the sale of the lot which the sons had sold disposed of at an earlier time. 10 UNREPORTED JUDGMENTS The sons swore affidavits and gave oral evidence before the primary Judge (Bryson J). They gave confusing and conflicting versions of the arrangement pursuant to which Mrs Brown had surrendered the legal estate in the real property at Marrickville and how they had acquired the legal estate in the property at Gladesville. As to their respective contentions that the consideration for this benefit was that the sons would ensure rent/rate-free accommodation for their mother for life, or that the benefit was some kind of loan, Bryson J concluded: "None of the defendants' [sons] evidence left me with any impression that they were clear in their recollections or confident in their evidence of these conversations from long ago; in my finding Mr Raymond Brown recollects very little of them, while Mr Jack Brown recollects basically nothing. Merely on appraisal of their own evidence taken as a whole, including cross-examination, with the probabilities of the matter, I do not find that there as such an arrangement as they allege; I find that there was no such arrangement. " Mrs Brown's affidavit was also internally contradictory. A medical report was provided by Dr C S Ferraris, shortly before the trial, that Mrs Brown was unfit to be cross-examined and that "her responses to questions would be unreliable and variable". By inference, the same comments would probably have applied to the reliability of the affidavit sworn by her but a month earlier. By this time, Mrs Brown was 89 years of age. She had, as Dr Ferraris described, "multiple problems". Bryson J commenced the hearing with the hope of being able to make arrangements to take Mrs Brown's evidence at the nursing home. But, as events transpired, she died on the third day of the hearing. She therefore never gave oral evidence. Bryson J did not have the advantage, such as is conventionally attributed to the observation of witnesses, of judging Mrs Brown's evidence from the impression which she made upon him. He had only her sworn affidavit which he permitted to be read, notwithstanding Mrs Brown's unavailability for cross-examination. Of course, that affidavit was treated with considerable circumspection by Bryson J, having regard to the fact that it was untested. It would have been evaluated by his Honour against his assessment of the other evidence (including that of the sons). His approach to the probabilities was derived from an evaluation of the fundamental facts and the ordinary experience of human life. This Court is bound by Bryson J's determinations which are based upon the advantages which he had, as the trial judge, in viewing witnesses and assessing their truthfulness in the light of his impressions of them. The current doctrine of the High Court of Australia forbids this Court from disturbing conclusions based upon such impressions (including the subtle influences of demeanour) unless contradicted by incontrovertible evidence or otherwise for good reason glaringly improbable. Abalos v Australian Postal Commission (1990) 171 CLR 167, 179 and other cases there cited. This is not a case where this Court would be authorised to disturb Bryson J's conclusions so far as they were based upon the impression made upon his Honour by the evidence of the sons. That leaves his Honour's assessment of the untested affidavit of Mrs Brown. In this regard Bryson J did not have the same advantage over this Court. Like us, he did not see Mrs Brown. This Court is as equally competent to assess the acceptability of Mrs Brown's affidavit as his Honour. In an appeal by way of rehearing, we are obliged to shoulder the responsibility of substituting our own opinion for that of the primary judge if we find that judge has erred. Warren v Coombes (1979) 142 CLR 531, 551f. Of course, in approaching that question, we will keep in mind the URJ BROWN v BROWN (Kirby P) 11 other advantages which the trial judge enjoys, as explained in such cases as Lend Lease Developments Pty Ltd v Zenlicka (1985) 3 NSWLR 207 (CA), 209. I agree with the remarks of Gleeson CJ concerning the criticism voiced of Bryson J's decision to allow the affidavit of Mrs Brown to be read at all. In my view, his Honour's decision in this regard was correct. In any case it is unassailable. The question remains: what is to be made of Mrs Brown's affidavit, given its own defects, shared with the evidence of the sons, in the precise recall of the circumstances surrounding the mother's surrender of her substantial asset, and the sons' acquisition of her capital, as the basis for the purchase of their property at Gladesville? The primary judge finds a resulting trust Bryson J concluded that the receipt by the sons of the proceeds of the sale of the mother's asset was subject to a resulting trust. He came to that conclusion in a short passage in his reasons: "In the circumstances, Mrs Brown's not being available to [be] cross-examined does not seem to me to be of crucial importance. In her affidavits she has made unqualified statements which would establish that she did not intend to make a loan or a gift, that she had no agreement with the defendants relating to ownership or title to the property, and that it was only in recent times that she learned that she was not one of the registered proprietors of the Gladesville property. When I look at these with the conclusion which I would base on the defendants' evidence, there is no reason in substance why I should not accept what she says, and I do accept it. I find that when Mrs Brown contributed moneys to the purchase of the Gladesville property she did not intend that the beneficial ownership of the property should be otherwise than in proportion to contributions made by her and the defendants to the purchase price. I further find that she was not a party to any arrangement with her sons which would affect or alter the beneficial interest would arise under the law relating to resulting trust." It will be observed that Bryson J based his conclusion in this respect upon two grounds. First, his Honour rejected the evidence of the sons that their mother had surrendered her interest in real property in exchange for a lifetime's accommodation and care. As I have said, that foundation is impregnable, not least because Bryson J, who saw him, described the evidence of Mr Raymond Brown as "unconvincing". I find the other ground (acceptance of the evidence in Mrs Brown's affidavit) much less convincing. There is the internal contradiction pointed up by Gleeson CJ. There is also the inability of the sons to cross-examine Mrs Brown (for which, in fairness, Bryson J made allowance). There is also the very strong likelihood, in the medical evidence which was available, that the affidavit did not represent the unassisted recollection of this elderly and ill woman of events so long in the past. However, the fact remains that a woman of 57, with a continuing need for a home, effectively gave all of her most substantial asset away to her sons. She reserved nothing for her daughters. In the ordinary course of events such conduct would give rise to a presumption of a resulting trust in her favour. In the absence of a convincing case on the part of the sons (other legal presumptions for the moment ignored) the conclusion reached by Bryson J would thus follow simply by the application of ordinary equitable doctrine. 12 UNREPORTED JUDGMENTS The status of presumptions has been the subject of discussion both in the High Court of Australia and in this Court. In Calverley v Green (1984) 155 CLR 242 at 264 Murphy J expressed reservations about the operation of such presumptions. He voiced a preference for replacing them with the rational evaluation of all of the evidence - in a mind unimpeded by rules of thumb which, for the most part, were developed in different times and other social circumstances. "Presumptions arise from common experience... If common experience is that when one fact exists, another fact also exists, the law sensibly operates on the basis that if the first is proved, the second is presumed. It is the process of standardised inference. As standards of behaviour alter, so should presumptions, otherwise the rationale for presumptions is lost, and instead of assisting the evaluation of evidence, they may detract from it. There is no justification for maintaining a presumption that if one fact is proved, then another exists, if common experience is to the contrary. "With specific reference to the presumptions of a resulting trust and of advancement - the two presumptions said to be applicable in this case - Murphy J said (ibid, 264-265): "The general presumption of a resulting trust when the purchaser of property causes it to be transferred to another should be discarded. The presumption that when unequal contributions are made to the purchase of property there is a presumption of a resulting trust in shares proportionate to the contributions should also be discarded.... The presumption of advancement, supposed to be an exception to the presumption of resulting trust, has always been a misuse of the term presumption, and is unnecessary. Transfer of the title of property wholly or partially to another is commonly regarded as of great significance.... The notion that such a deliberate act raised a presumption of a trust in favour of the transferor, would astonish an ordinary person. In the absence of those presumptions, the legal title reflects the interests of the parties, unless there are circumstances (not those false presumptions) which displace it in equity. False presumptions which override the registered title are destructive of an orderly Torrens title system and should not be tolerated... " In Stivactas v Michaletos (No 2), Court of Appeal, unreported, 31 August 1993; [1993] NSWJB 101, I expressed my respectful preference for the opinion of Murphy J in Calverley. See ibid p5. However, as in that case so in this. I am not free to follow the opinion expressed by Murphy J. An analysis of the other judgments in Calverley, and of authority of the High Court of Australia undisturbed by that decision, makes it plain that the presumptions of resulting trusts and of advancement, long accepted by the law of equity in this country, continue to apply as part of the law to be administered by this Court. No other judge in Calverley accepted Murphy J's opinion. The controversies of that decision related to the scope and content of the presumption of a resulting trust and of advancement. The continuing application of those presumptions, properly defined, was not questioned by the other members of the Court. They therefore continue to bind this Court. This being the case, it is my duty to apply the ordinary principles which govern the determination of a resulting trust. Where two or more persons advance the purchase price of property in different shares, it is presumed (whatever the legal title may suggest) that those persons, or persons to whom the legal title is transferred, hold the property upon a resulting trust in favour of those who provided the purchase price. They do so in the shares in which they provided the purchase moneys. See Calverley (above) at 266f. URJ BROWN v BROWN (Kirby P) 13 Where the presumption of a resulting trust applies, it has been said several times that it should not "give way to slight circumstances". See eg Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, 365. Applying the presumption as to resulting trusts in the circumstances of this case I would conclude, with the primary judge and the other members of this Court, that they give rise to the application of the presumption. The finding of Bryson J excluded its rebuttal by the substitution of a proved intention on the part of Mrs Brown contrary to that imputed by the presumption. Accordingly, subject to what follows concerning the countervailing presumption of advancement, the declarations and orders made by Bryson J were impeccable. The presumption of advancement: a suggested discriminatory rule As an illustration of the truth of Murphy J's statement in Calverley (above), that where the standards of behaviour alter so that they require the alteration of the presumptions imposed by the law, I could mention the applicability of the presumption of advancement to a de facto relationship which divided the High Court in Calverley. But for the moment, I wish to concentrate only upon the expression of the presumption of advancement as affecting gifts made by a father to his wife or children (on the one hand) and by a wife or mother to her husband or children (on the other). It has commonly been presumed, until now, that in the former case the presumption of advancement was applicable, whereas in the latter case it was not. Powell J described the position in Oliveri & Anor v Oliveri, unreported, Supreme Court,. 29 March 1993, at p31: "... [T]he better view in the past was that where the payment was made by a mother - who, in those days, had no obligation to maintain her child or children - there was no presumption of advancement, but rather a presumption of a resulting trust in favour of the mother (Holt v Frederick (1726) 2 P Wms 346; Re De Visme (1863) 2 De GJ & Sm 17; Bennet v Bennet (1879) LR 10 Ch D 474; cp Sayre v Hughes (1868) LR 5 Eq 376; Batstone v Salter (1874) LR 10 Ch 471; re Gremio [1937] IR 470; McCabe v Ulster Bank [1939] IR 1); this notwithstanding, it seems that very little evidence of an intention to advance was required, the view apparently being taken that little additional motive beyond their relationship would be needed to induce a mother to make a gift to her child. It is this law which, as it seems to me, provides the explanation for the decisions in Toddy v Moorehouse (1874) LR 19 Eq 69; and Re Bulankoff (1986) 1 Qd R 366..." For the respondents it was conceded (properly in my view) that no decision binds this Court to accept, as still stating the law, the distinction between the presumptions applicable to a gift by a father to a wife or child and the presumption applicable to a gift by a mother or wife to a husband or child. There are several reasons for terminating the gender distinction accepted by earlier judges. They are reasons of legal authority, legal principle and legal policy. So far as authority is concerned, a number of decisions in this country have cast doubt upon the continued applicability of the earlier exposition of the presumption as one confined to a gift by a male donor. As long ago as 1912 in Scott v Pauly (1912) 24 CLR 274, Isaacs J, in the passage cited above by Gleeson CJ, noted the doubts cast upon the differentiation between gifts by fathers and mothers. He suggested that the distinction might not prove to be a sure foundation for the process of reasoning of a modern court of equity. Instead, he contemplated a different distinction - one based upon the particular relationships 14 UNREPORTED JUDGMENTS of the parties rather than the gender of the donor. In this regard, Isaacs J was beckoning, in my view, towards the position ultimately expressed by Murphy J in Calverley (above). In this Court, in Dullow v Dullow & Anor (1985) 3 NSWLR 531 (CA), Hope JA (with the concurrence of McHugh JA and myself) observed at 541: "\.. It is not necessary for me to consider what the correct principle is as to any presumption of advancement when a mother places property in the name of a child. I should say however, as at present advised, I think that if the law is to be left constrained by presumptions, the same presumption should apply to gifts to children by both mother and father..." In Dullow, as earlier in Scott, it was not essential for the Court to resolve the issue in order to decide the case. But a fairly clear indication was given of how the Court would decide, were it required to do so. In Calverley v Green, the problem before the High Court was, as I have stated, quite different from that under consideration in this case. That was a case where Mr Calverley advanced the repayments on the home of his de facto wife Miss Green. He paid the deposit out of his own funds. However, pertinent to the issue now before this Court are the remarks of Gibbs CJ in that case. Although he differed from the majority in his reasoning, Gibbs CJ was not in dissent. He reached the same conclusion as the majority but through a different process of legal reasoning. At 247, his Honour said: "... [T]he general rule that in the situations mentioned it is presumed that a resulting trust arises in favour of the purchaser, or in favour of two purchasers in the proportions in which they, contributed the purchase money, is subject to the exception created by the presumption of advancement. 'It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose or in other words that the equitable right is not at home with the legal title': Martin v Martin (1959) 110 CLR 297 at p303; in other words, it is 'no more than a circumstance of evidence which may rebut the presumption of resulting trust': Pettitt v Pettitt [1970] AC 777, at p814. The presumption arises when a husband makes a purchase in the name of a wife, or a father in the name of his child or other person to whom he stands in loco parentis. The authorities have denied that it arises where a wife makes a purchase in the name of her husband (Mercier v Mercier [1903] 2 Ch 98), or a mother in the name of her child (Bennet v Bennet (1879) 10 Ch D 474; Scott v Pauly (1917) 24 CLR 297 at 303; Pickens v Metcalf & Marr [1932] NZLR 1278... The principle on which these decisions have been rested is not altogether satisfactory. Lord Eldon said in Murless v Franklin (1818) 1 Swans 13 at p17 [36 ER 278 at p280] that the presumption of advancement arises 'where the purchaser is under a species of natural obligation to provide for the nominee'.... The principle upon which the presumption of advancement rests does not seem to me to have been convincingly expounded in the earlier authorities, nor do the two presumptions, of a resulting trust and advancement, together always lead to a result which coincides with that which one would expect to occur in ordinary human experience." It was in his search for a new basis for the presumptions that Gibbs CJ declined to follow earlier authority which suggested the presumption of advancement was not applicable to a de facto relationship between a man and a woman. His Honour's reasons afford, in my respectful opinion, further support for the ultimate conclusion which Murphy J reached in the same case, viz that arbitrary presumptions can result in outcomes which appear disharmonious to the justice of the particular case. Nevertheless, in the end, Gibbs CJ did not join Murphy J URJ BROWN v BROWN (Kirby P) 15 in throwing over the presumptions. He found that there was such a presumption of advancement between de facto spouses but that it had been negatived by the evidence called in the particular case. The remarks of Gibbs CJ in Calverley provide a compelling reason for releasing the presumption of advancement from its earlier gender-based discrimination. So long as it survives as a tool of legal reasoning, it should be grounded not in the gender of the parties making and receiving gifts but in the relationship which exists between them. It is from such relationships, in the ordinary experience of human existence, that substantial gifts may be grounded in the presumption of advancement, rather than controlled by the presumption of a resulting trust. In other jurisdictions of the common law, there have been differing approaches to suggestions that the distinction in respect of the presumption of advancement, grounded in gender, should be dropped. In the fourth edition of Halsbury's Laws of England, vol 48 para607, Bennet v Bennet was still assumed to state the law of England. Perhaps this merely reflected the encyclopaedic nature of the work and the failure to think afresh upon the changing social circumstances since Bennet was decided in 1879. In New Zealand the decision in Pickens v Metcalf & Marr (above) was followed in In Re Lloyd [1960] NZLR 947. However, as Gleeson CJ has pointed out, the law in the United States of America has rejected the distinction, so far as the presumption of advancement is concerned, between gifts by mothers and fathers. In Canada, the Court of Appeal of Prince Edward Island held in Re Dagle; Dagle v Dagle Estate (1990) 70 DLR (4th) 201 (CA) that there was no reason why the presumption of advancement, if it was to survive in respect of gifts to children by fathers, should not be equally applicable to gifts by mothers. See ibid, 208. At 209, in support of this proposition, the Court said: "The common law has never been held to be fixed in time. As times change, so did the common law. There is no reason at this point in time where women play such an important role in the work place that they cannot make a gift to a child resulting in the presumption of advancement." With no authority binding this Court to a contrary conclusion, with some authority in Australia pointing to the removal of gender discrimination in the expression of the presumption and with authority in other jurisdictions of the common law favouring that result, I would have no hesitation in supporting the principle that the presumption of advancement, if it is still to be applied, must be applied equally to gifts by mothers and wives as by fathers and husbands. There are also reasons of legal principle which support this conclusion. They include the general desirability that the law should not be expressed in terms which differentiate between people on the ground of their gender unless the differentiation is firmly based upon rational grounds supported by fact, not mere prejudice, stereotype or history received from earlier times when attitudes to women were different. In Oliveri (above) Powell J referred to the operation of the Family Law Act 1975 (Cth), by which a mother is now rendered liable to contribute to the maintenance of her child or children. Even in 1958, when the alleged gifts here in question were made, there were numerous legal obligations upon women which undermined the suggested differentiation as between men and women in respect of the presumption of advancement. To the extent that such differentiation was earlier justified by the want of any legal obligation on the part of a woman to maintain her children or to make proper provision for them, that distinction has 16 UNREPORTED JUDGMENTS been removed. In such a legal context, to continue the distinction upon the footing of gender is clearly unacceptable. In terms of legal policy the same considerations apply. If presumptions are to be maintained as helpful tools, in the practical task of legal reasoning in disputes of this kind, they must be based upon modern social norms and understandings. They may be freed from the stereotyped notions of the obligations men owed to their wives and children but which women did not owe to their husbands and children. Adoption in a modern society of a gender neutral presumption The reasons of legal authority, principle and policy therefore combine to support the proposition, advanced for the appellants in this Court, that they were entitled before Bryson J to have the benefit of the presumption of advancement to assist the decision in their case. Cf Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 252. To so determine involves no rejection of binding authority. It is simply the application of the law as to presumptions in the circumstances of Australian society at the relevant times for which those presumptions are invoked. The hesitations which may restrain judges in the development, modification or expansion of rules of substantive law do not apply when a judge is invited to develop, modify or expand (in accordance with legal authority, principle and policy) a procedural rule or a principle of evidence defining the content of a presumption which assists in judicial reasoning. See Halabi v Westpac Banking Corp (1989) 17 NSWLR 26 (CA), 41. There are three countervailing considerations which were raised for the respondents. They should be mentioned. But they have no ultimate weight. The first is that it was urged that the adoption of a principle of gender equality in the presumption of advancement should be postponed and not applied in this case because the relevant "advancement" occurred in 1958. Thus, it was suggested that in 1958, the relationship between men and women, fathers and their children and mothers and their children was significantly different from today and such as to make appropriate the application of the Victorian doctrine differentiating between the presumptions applied in cases of gifts by mothers and fathers. I would reject that assertion. Even if applicable in the early part of the century, as when Scott was decided in the High Court, I would not agree that the distinction was still applicable in the social circumstances of 1958. Secondly, it was said that the distinction was one which was favourable to women (wives and mothers) and that this might justify its continuance. Thus, if the presumption of advancement did not apply to rebut or modify the presumption of a resulting trust, the woman donor would be protected by the resulting trust which the court would then enforce. This argument is likewise unacceptable. It is true that the principle of gender neutral application of the law will normally involve the removal of legal rules which have disadvantaged women. See eg Bryson v Bryant (1992) 29 NSWLR 188 (CA). However, it would be an impermissible approach to the development of either common law or equitable principle to accept the removal of stereotypes only where this resulted in advantages to women. Cf R Graycar and J Morgan The Hidden Gender of the Law, Federation Press, Sydney, 1990, 118, 371. It is always open to a party, by specific and express evidence, to seek to rebut the consequences of the operation of the presumptions for which the law provides. In the operation of the presumptions, so long as they endure, their content should be, and is, gender neutral. In this respect, the rules reflect the egalitarian nature of modern URJ BROWN v BROWN (Kirby P) 17 Australian society, including as between the sexes. It is unnecessary to define when such equality relevantly came about. Doubtless, economists would debate the impact of female employment during the Second World War or the decisions of industrial tribunals leading ultimately the Equal Pay Case. In my view, it had come about sufficiently by 1958 to make distinctions in respect of the gifts of Mrs Brown, to her sons or to her daughters, and different rules applicable to the gifts of Mr Brown senior and Mrs Brown to their children, completely unacceptable. That conclusion will have its consequences for the operation of the presumption of advancement in this case. Thirdly, it was suggested that in some way the fact that the appellants were "able bodied sons" disqualified them from the presumption of advancement in their favour, if it applied. I would reject that notion. It is redolent with the assumptions about the relationship of parents (male or female) with their children, which reflect earlier times. The stereotypes concerning able-bodied sons have been rejected in this State in the context of family provision cases. See eg Hunter v Hunter & Ors (1987) 8 NSWLR 573 (CA), 580; cf Anderson v Teboneras & Anor [1990] VR 527. This discarded principle should not be permitted to find its way back into the law of trusts as a suggested exception to the presumption of advancement. Application of the revised presumption of advancement The foregoing consideration of the applicable principles is of importance to this case. This is because, in the end, Bryson J decided the case without the benefit of oral evidence as to intention on the part of Mrs Brown herself. He had only her affidavit. As I read his Honour's reasons, he accepted the difficulty of relying upon that affidavit, Mrs Brown not being called to give oral evidence. He remained of the view that both Mrs Brown and the sons were seeking to reconstruct what had happened thirty years earlier. Ultimately, he proceeded to determine the case by the application of the presumption of a resulting trust. That presumption not having been rebutted by a contrary intention on the part of Mrs Brown (affirmatively proved by the sons' evidence) it determined the outcome of the case. The declarations and orders followed. With respect, the difficulty with this reasoning is that it failed to give any weight to the presumption of advancement in favour of the sons, deriving from the gift by their mother to them which the legal reasoning set out above suggests was a tool available to the primary judge for the process of reasoning available to support the sons' case. It was not a tool of reasoning which could be dismissed out of hand. The search for the actual intention of the late Mrs Brown could not be concluded by the evidence of the sons. But equally it could not be satisfactorily concluded from the untested affidavit of Mrs Brown. Thus his Honour was truly in the realm of the operation of reason, assisted by any presumptions which the law provides. If the view of Murphy J had prevailed in Calverley, the appropriate way of resolving the disputed claims of the sons and of the daughters would have been by the application, not of fixed presumptions to the undoubted legal estate in favour of the sons, but by the application of unencumbered reason and logic. But that was not the course mandated by the law as stated in Calverley. Nor was it the course taken by Bryson J. 18 UNREPORTED JUDGMENTS Bryson J applied one presumption, viz that of a resulting trust. But he did not apply the competing presumption, viz that of advancement. He thus concluded his analysis of the case without giving any weight to one of the tools of reasoning which the law provided and which, in my view, in this case, favoured the interests of the sons. The importance of this omission cannot be gainsaid. If, for example, the position had been that the late Mrs Brown had predeceased her husband and that it was he, and not the wife, who made the gift to the sons in 1958, it cannot be doubted that the presumption of advancement would have been invoked. Unless itself rebutted, it would have produced the rebuttal or qualification of the presumption of a resulting trust which was the ultimate legal foundation of Bryson J's orders. There is another reason why the omission of consideration of the presumption of advancement cannot, in the facts of the case, be regarded as insignificant. If we turn back to the fundamental facts, they certainly include the fact that, after the advancement in question, Mrs Brown undoubtedly continued to live under the roof of the house which was purchased at Gladesville with the assistance of the proceeds of the sale of her home at Marrickville. That indeed became her rent-free, rate-free and trouble-free accommodation for the rest of her life until the dispute between the sons and the daughters arose and she moved into a nursing home. Although Bryson J, on the basis of the sons' evidence, rejected their contention of the specific arrangement with the mother, by which she would exchange her legal estate in Marrickville for the right of accommodation and support for life at Gladesville, this finding is not equivalent to one that the mother positively intended not to make a gift to her sons. In the absence of the mother's oral evidence and based only on an affidavit with internal contradictions together with the evidence concerning Mrs Brown's mental state it would have been difficult for Bryson J, with any confidence and persuasiveness, to have reached such a conclusion. It would not have been one which I would have reached in these facts. Thus, this was a case where presumptions were very important. Indeed, their operation was arguably vital to the outcome of the case. As Gibbs CJ said in Calverley (in the passage cited above) they can sometimes result in unexpected conclusions. But so long as they continue to operate as part of the reasoning process required of judges by our law, it was the duty of Bryson J to apply them. To apply them both. In the present case, it is far from clear that the application of the presumption of advancement in favour of the sons would not have resulted in a different outcome to the case. The suggested procedural unfairness of allowing the point There is no doubt that the late Mrs Brown, in her statement of claim, relied upon the presumption of a resulting trust (see para8). In their statement of defence, the appellants contented themselves to meeting this claim by a denial that they: "[H]old or have ever held the Gladesville land on a resulting or any other trust for the [mother], either at all or in the proportionate shares set out..." The appellants did not, in their defence, call in aid the presumption of advancement. URJ BROWN v BROWN (Kirby P) 19 Moreover, in their written submissions at trial, which were placed before this Court, there was a paragraph which appears to concede that the presumption of advancement would not be available to the appellants at the trial: "[T]he plaintiff has the assistance of the law in that, as a mother, a presumption of advancement would not normally arise in favour of a gift by her to her defendants, her sons." The amended notice of appeal complains about numerous aspects of the trial and of the decision of Bryson J. But it contained not a word about the suggested mistake on his Honour's part in failing to give the appellants the benefit of the presumption of advancement which, as I have held, the law provided in their favour. The first time that the presumption was invoked was in the argument before this Court. It resulted from questions by the Court and in the appellants' submissions in reply. It was at that point, in response to the obvious concern of the members of the Court about that point, that there was revealed a letter which had been sent to the Registrar of the Court of Appeal and to the solicitors for the respondents alerting them to the intention of the sons to rely upon the suggested error on the part of Bryson J in failing to afford them the application of the presumption of advancement. It was at that stage, that counsel for the appellants sought leave to add a new ground of appeal: "His Honour erred in not finding or not considering the possibility of, a Presumption of Advancement in favour of the Appellants... being intended by the Plaintiff at the time she contributed to the proceeds of the sale of the Marrickville property to the purchase of the Gladesville property. By not considering the above, His Honour misdirected himself on the onus of proof borne by the Plaintiff, and was in error in finding that the Presumption of Advancement did not shift the onus of proof that there was no such intention onto the Plaintiff." The respondents objected to the additional ground. With commendable candour, their counsel acknowledged that he could not "honestly answer one way or the other, at the moment, as to whether any further evidence would have been led" if the point had been argued at trial. He reserved his clients' position. It is a basic rule of procedural fairness that a party should not be permitted to raise, on appeal, a new point which, had it been raised at trial, would have opened the proceedings up to the production by the opposing party of evidence which was not called in the way the trial was conducted. As I understand it, this rule is not enforced as one of a sophisticated game of chance between parties. It is a rule defensive of the finality of litigation. But above all it is protective of the fairness of the trial process. It is plainly unfair if a party has to meet a new case on appeal which, had it been raised at trial, could have been met by evidence which was not called in the light of the matters pleaded and argued. See Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1, 7. This principle applies whether the failure to raise the point at the trial was deliberate or inadvertent. See University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 (HC), 483. On the other hand, if what is raised is purely a question of law, and if no further evidence could have been called upon it at the trial, the appellate court, in an appeal by way of rehearing, is usually in just as good a position to apply the law to the proved facts as was the judge of trial. In such a case the appellate court may, in the interests of justice, if it considers it expedient to do so, permit the fresh argument of law to be advanced. See Suttor, loc cit; Coulton at 8. 20 UNREPORTED JUDGMENTS The resolution of the application for the enlargement of the grounds of appeal and, if enlarged, of that ground depends, therefore, upon whether it would have been open to the respondents to call further evidence upon the point now sought to be argued. Having had time for reflection, and protected by an order of the Court permitting further written submissions, counsel for the respondents produced detailed submissions setting out arguments as to why the amendment should not be permitted a description of the evidence which, it was suggested, the respondents lost the opportunity to call. Thus, it was said, it would have been open to the respondents to seek to rebut the presumption of advancement by calling evidence to the effect that the appellants did not have a moral claim to Mrs Brown's assets. It was put before the Court that Mrs Brown was under no moral obligation to give the sons the entirety of her assets, to the exclusion of the daughters. I find this argument unconvincing. In the issues which were fought at the trial, it was clearly relevant to Mrs Brown's case to rebut the defence of the appellants and to prove that she had not formulated an intention to give the property to them. To this end, it was relevant for her to prove the nature of her own needs and her relationships with her four children, as distinct from with the two sons alone. To some extent she sought to do so. To the extent that Bryson J was deprived of the evidence of Mrs Brown herself, that was because of her state of health and her death during the course of the trial. It had nothing to do with the issues for trial raised by the appellants. The initial difficulty which counsel for the respondents faced, in identifying the additional evidence that would have been called, was perfectly understandable. There was no significant additional evidence that would have been called to meet the presumption of advancement, had it been pleaded at the trial. The point should be tried but at cost to the appellants. Nevertheless, I am conscious of the injunctions both of the High Court of Australia, and of this Court, against the adoption of unfair procedures which disadvantage a party by raising points on appeal which are new or by presenting a different case to the appellate court. For the respondents it was put that, if the Court were minded to consider that the presumption of advancement applied, it should adopt the course of remitting the matter to the primary judge. Such a course has both advantages and disadvantages. The disadvantages are that the finality of the litigation, already long protracted, is further delayed. As well, if the matter were returned before Bryson J it would be difficult for his Honour precisely to recapture the impression of witnesses and the considerations which were in his mind in October 1990, when he decided the case. I give weight to these considerations. As against them, there stands the fact that, in my respectful opinion, the case was not decided by the primary judge applying the applicable legal principles. In particular, the principle relating to the presumption of advancement was not applied, seemingly because it was not urged upon his Honour at the trial by the appellants. The trial judge has great advantages over this Court in completing the trial with all of the tools of reasoning which the law affords. It is easy in circumstances such as this to say that finality dictates that the litigation should end and that the appellants should be bound by the conduct of their counsel at the trial. But in this case that conduct was clearly affected by an error of law which was, at least partly, understandable. The case was ultimately determined upon one presumption but without the operation of the countervailing URJ BROWN v BROWN (Cripps JA) 21 presumption. In my view, that countervailing presumption should have been applied. A trial according to law was therefore not had, as was the appellants' right. It is possible that, even with the application of the presumption of advancement, the same conclusion would be reached. The presumption might be sufficiently rebutted. Or it might be held that, even applied, it does not adequately operate to rebut or modify the presumption of a resulting trust found by Bryson J. But at least then the case will have been determined by the application of the correct legal principles. That course can be assured by imposing appropriate cost orders and by making it plain that, upon the return of the matter to the Equity Division, it would be open to the trial judge to permit the respondents to call any further evidence which is relevant to assist in the rebuttal of the presumption of advancement, as it applies. The legal mistake which has occurred here is one which should be corrected. But in the way in which the case proceeded, and because the point was not earlier taken for the appellants, the correction must be at cost to them. Costs should be ordered on a solicitor and client basis. This is to reflect my opinion that the appellants are entitled to succeed only upon a point of law which they failed to raise at first instance. So far as the remittal to the Equity Division is concerned, this follows the practice of this Court to leave it to that Division to determine the judge who should perform the retrial. In the circumstances, however, it would obviously be sensible that that judge should be Bryson J, that the evidence admitted in the first trial should be accepted by agreement before him and that the matter should proceed at trial as on a successful application to amend the statement of defence to rely upon the presumption of advancement. In all other respects I agree in the reasons of Gleeson CJ. But for my opinion that a significant mistake of law has occurred in the conduct of the trial which was largely understandable and which may have been critical to the trial's outcome, I would have joined in the orders which the Chief Justice has proposed. Orders The orders which I favour are: 1. Appeal allowed; 2. Set aside the declarations and orders of Bryson J dated 29 October 1990; 3. In lieu thereof, order that the proceedings be remitted to the Equity Division of the Supreme Court for retrial; 4. Order that the costs of the appeal be paid by the appellants on the solicitor and client basis; and 5. Order that the costs at first instance abide the outcome of the retrial so ordered. Cripps JA I agree with Gleeson CJ. Appeal dismissed with costs Counsel for the appellant: R Skiller Solicitors for the appellant: Ronald S Czinner & Co Counsel for the respondent: R G Forster/A Galasow Solicitors for the respondent: Lees & Givney