Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Baptist Union of New South Wales v Chief Commissioner of State Revenue [2013] NSWADT 270 Hearing dates: 26 and 27 September 2013 Decision date: 28 November 2013 Jurisdiction: Revenue Division Before: A Verick, Judicial Member Decision: The decision made by the Chief Commissioner on 22 February 2012 to deny an exemption of duty is affirmed. Catchwords: STATE REVENUE - Stamp duties -Trusts - Formation - Whether an express trust exists on transfer of two properties from vendors - Absence of any written declaration - Exemption from duty under Duties Act 1997, s 275. Legislation Cited: Duties Act 1997 Baptist Union Incorporation Act 1919 Taxation Administration Act 1996 Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Higher Education Support Act 2003 Cases Cited: Trident General Insurance Co Limited v McNiece Bros Proprietary Limited (1988) 165 CLR 107 Kelly v Commissioner of Taxation [2021] FCA 423 Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 Commissioner of Stamp Duties (Qld) v Jollife [1920] HCA 45; (1920) 28 CLR 178 Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86 Milroy v Lord [1862] EngR 951; (1862) 4 De GF & J 264 Bolton v Federal Commissioner of Taxation (1964) 9 AITR 385 Commissioner of State Revenue v Lam & Kym Pty Ltd (2004) 10 VR 420 Klewar v Official Trustee in Bankruptcy (2008) FCA 1788 Sheikholeslami v Tocher [2011] FCA 1050 McEvoy v McEvoy [2012] NSWSC 1494 Rochefoucauld v Bousted (1897) 1 CH 196 Deryk Rowan Anre as Trustee of Colin George Ward (Deceased) v Zant Pty Ltd [2004] FCA 1716 Industrial Equity Ltd v Blackburn [1977] HCA 59; (1977) 137 CLR 567 Briggs v James Hardie & Co Pty Ltd & Co Pty Ltd (1989) 16 NSWLR 549 at 577 Salmon v Salmon & Co Ltd [1897] AC 22 Lee v Lee's Air Farming Ltd [1962] AC 12 Texts Cited: Jacobs' Law of Trusts, Sixth & Seventh Editions Lewin on Trusts, Seventeenth edition Category: Principal judgment Parties: Baptist Union of New South Wales acting in its capacity as trustee for Morling College Limited (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel C Catt (Applicant) S Kaur-Bains, A Gerard (Respondent) McPhee Kelshaw, (Applicant) I V Knight, Crown Solicitor (Respondent) File Number(s): 126097 reasons for decision 1This proceeding concerns the question of ownership of two villas for purposes of a claim for exemption from duty under the Duties Act 1997 ("Duties Act") on dutiable transactions. 2The applicant, Baptist Union of New South Wales ("the Baptist Union"), a body corporate incorporated under s 1 of the Baptist Union Incorporation Act 1919, purchased in November 2010 a residential property situated at 76/116 Herring Road, Macquarie Park ("Villa 76"). On 29 November 2010, solicitors for the Baptist Union lodged with the respondent ("the Chief Commissioner") a request for a ruling that the Baptist Union was exempt under s 275(1) of the Duties Act in respect of duty otherwise payable on the contract for sale, transfer and mortgage. 3In December 2011, the applicant purchased another residential property situated at 84/116 Herring Road, Macquarie Park ("Villa 84"). On 7 February 2012, the applicant also sought a ruling from the Chief Commissioner that the Baptist Union was exempt under s 275(1) of the Duties Act in respect of duty otherwise payable on the contract for sale, transfer and mortgage. 4On 22 February 2012, the Chief Commissioner made a decision in respect of the two applications confirming that, in each case, the Baptist Union was not exempt under s 275(1) of the Duties Act from duty otherwise payable on the contract for sale, transfer and mortgage. 5On 10 April 2012, the Baptist Union objected to both decisions under s 86(1)(b) of the Taxation Administration Act 1996 (the "TA ACT"). 6The Chief Commissioner disallowed the objection under s 91(2) of the TA Act. The applicant sought a review of the decisions made by of the Chief Commissioner under s 96 of the TA Act. 7Broadly stated, the applicant's case before the Tribunal was essentially that the Baptist Union purchased the two properties as a trustee for Morling College Limited, which operates the Morling College, a body corporate referred to in s 275(3)(a) of the Duties Act and the Baptist Union in its capacity as trustee was an "exempt charitable or benevolent body" as defined in s 275(3)(c). 8The relevant provisions of s 275 of the Duties Act provided as follows: 275 Charitable and benevolent bodies (1) Duty under the Act is not chargeable on the following: (a) a transfer, or an agreement for the sale or transfer, of dutiable property to an exempt charitable or benevolent body, ... (f) a mortgage given by or on behalf of an exempt charitable or benevolent body. ... (3) In this section: "exempt charitable or benevolent body" means: (a) any body corporate, society, institution or other organisation for the time being approved by the Chief Commissioner for the purposes of this paragraph whose resources are, in accordance with its rules or objects, used wholly or predominantly for: (i) the relief of poverty in Australia, or (ii) the promotion of education in Australia, or ... (c) any person acting in the capacity as trustee for a body corporate, society, institution or other organisation referred to in paragraph (a) or (b). 9In addition to the documents produced as required by s 58 of the Administrative Decisions Tribunal 1997, the Chief Commissioner also handed to the Tribunal a further Bundle of Documents. 10By way of evidence, the applicant produced written statements made by Geoffrey Ronald Brooke, 'an officer of Morling College Limited' and Alan Lesley Soden who was the General Secretary of the Union 'in the period from 2001 until 23 March 2013'. Both were made available for cross-examination, but only Mr Soden was cross-examined at the hearing. 11Both parties, in addition to their viva voce submissions, also produced comprehensive written submissions, some filed before the hearing and further submissions handed in at the hearing. 12The transcript of the examination in chief and cross-examination of Alan Lesley Soden on 26 September 2013 was, as requested at the hearing, also forwarded to the Tribunal by the Chief Commissioner on 24 October 2013. THE ISSUES 13The parties in a joint written statement identified the issues for the Tribunal as follows: Trustee Issue This issue is whether, in terms of s.275(3)(c) of the Act, Union was "acting in the person's capacity as trustee" for Morling College Limited ("Morling") when it entered the dutiable transactions for which exemption was sought under s.275(1)(a) and (f) of the Duties Act. Whether s.23C(1)(b) of the Conveyancing Act 1919 (NSW) applies to an express trust and if it does whether there is compliance with that section. Promotion of Education Issue For the purposes of s.275(3)(a) of the Duties Act, whether Morling uses its resources wholly or predominantly for the promotion of education. Statutory Construction Issues Two statutory construction issues are raised by the words used in s.275(3)(a) of the Duties Act "for the time being approved by the Chief Commissioner for the purposes of this paragraph" and "used wholly or predominantly". "For the time being approved" Issue Whether the Duties Act, properly construed, required that at the time the agreement of sale and mortgages ("the transactions") were entered into, Morling was at that time, "approved by the Chief Commissioner" for exemption under s.275(3)(a) of the Duties Act. "Predominantly" Issue What does "predominantly" mean as used in s.275(3)(a) of the Duties Act. Whether the applicant has discharged its onus under s. 100(3) of the TAA. 14The parties also identified issues not in dispute between the parties, which were set out in the Chief Commissioner's written submissions - 6. The parties agree that Union is not in the position of being a general trustee of Morling College Limited ("Morling"). The issue is whether there was an express trust in respect of the purchase of Unit 76 and 84, such as that Union holds the legal titles in the said properties and Morling holds the beneficial title in the properties. 7. Further, Union says: (a) it does not contend there is a resulting, implied, or constructive trust. Union contends there is an express trust: (b) it does not contend that there was a declaration of trust by Union in respect of the interest in Unit 76 and 84 in favour of Morling; (c) it does not contend that for the purposes of s.275(3)(a) of the Duties Act Morling uses its resources "wholly" for the promotion of education, rather it says it uses its resources "predominately" for the promotion of education. FACTUAL BACKGROUND 15The background facts relevant to this application may be shortly stated. 16The affairs of the Baptist Union are conducted under by-laws and the Baptist Union has passed by-laws establishing various departments, including the Department of Theological Training, to conduct a Theological and Bible College and to provide training for ministry, missionary activity and other spheres of Christian service. 17The Theological College was established in 1916 and has been known as Morling College since 1985. 18In November 2006, Morling College Limited was incorporated with the Baptist Union its subscribing member and its sole member. Mr Soden in his statement provides the reasoning for the incorporation - 11. The reason for the incorporation of Morling College Limited was to enable Morling College to be approved by the Australian Government as a "higher education provider" under the Higher Education Support Act 2003 (Cth); which allows eligible fee paying students undertaking approved courses taught by Morling College to access a Commonwealth Government loan scheme called "FEE-HELP" to pay all or part of the student's tuition fees. FEE-HELP cannot be used for additional study costs such as accommodation. 19Mr Brooke, the current Bursar/Secretary of Morling College Limited, in his statement explained the status of and operations at Morling College as follows (reference to attached exhibits omitted): 11. Morling College commenced operations on or around September 2008 with the transfer of 'Morling College' from the Baptist Union of NSW to the company. Prior to September 2008, 'Morling College' was an autonomous activity or department of the Baptist Union of NSW. 12. Morling College did not, at the time it was incorporated, change the bank accounts that it used, which were in the name of "Baptist Union of New South Wales - Morling College" and the company has continued to operate those accounts. The signatories to the account are staff of the company and directors of the company. All of the student fees are accounted for in the financial records of the company that are filed with ASIC. It is the company that determines fees and charges for students and it is also the company that determines what monies will be expended from the bank account. 13. Morling College has its campus at 120 Herring Road, Macquarie Park. I understand that Morling College has been at this campus since 1962, and that the land is owned by Baptist Union of NSW since 1959 and agreed by the NSW Baptist Assembly of 1958 that it be used by Morling College. From April 2010, Baptist Union of NSW permitted Morling College to occupy and use the campus. On 1 April 2010, Baptist Union of NSW granted a long term lease to Morling College giving it use of the campus for 99 years at a nominal rent. 14. Morling College offers fully accredited undergraduate, graduate and postgraduate awards in Bible, Theology, Pastoral Care, Mission, Evangelism, Chaplaincy, Youth and Children's Ministry as well as a Gap Year program called 'Plunge'. 20On 26 September 2008, the Baptist Union entered into a Deed with Morling College Limited to transfer the legal and beneficial ownership of Morling College and the property used by the Baptist Union in the operation of Morling College to Morling College Limited for a nominal transfer fee. 21Each year the Baptist Union also makes a 'recurring grant' of a sum between $300,000 and $350,000 to Morling College Limited 'which financially underpins certain costs and activity'. 22Although Morling College Limited is a separate legal entity, its constitution provides that the Baptist Union's Council of the Department of Theological Training is also the Board of Morling College Limited. TRUSTEE ISSUE Factual background 23The first and perhaps the most critical issue for consideration is whether the Baptist Union purchased the two properties 'acting in the person's capacity as trustee' for Morling College Limited. 24The applicant submitted that 'the facts pertaining to the acquisition of Villa 76 by the Applicant acting in the capacity as trustee for Morling College are set out in paragraphs 29 to 50 and 66 of the Statement of Geoffrey Ronald Brooke and paragraphs 19 to 29 of the Statement of Alan Soden'. 25In his statement, Mr Brooke provides the background leading to the purchase of Villa 76. He states that, sometime in 2010, part of the land with three buildings used for lecturer accommodation owned by the Baptist Union and used by Morling College was sold by the Baptist Union. This, he states, required Morling College 'to start looking for alternate accommodation for some of the lecturers'. And that with the recruitment around September 2010 of Mr Robotham 'to assist in the development of Morling College's distance education programs' it was necessary to find 'additional accommodation for Mr Robotham and his family' before January 2011. 26In September 2010, Mr Brooke became 'aware that Villa 76 was for sale in a complex next to Morling College' and he, with Rev Clifford, the Principal of the Morling College, inspected Villa 76. Both agreed 'that it would be suitable for lecturer accommodation' and 'determined how Morling College should fund the acquisition, including using $200,000 from moneys that it had on deposit and borrowing the balance'. 27Mr Brooke recalls 'that on 8 October 2010, the Executive Committee of Morling College recommended in principle that Morling College acquire Villa 76' and he obtained an independent valuation. He further notes that on '15 October 2010, the Board of Morling College ratified the Executive Committee's recommendation' and he proceeded to make 'an offer to acquire Villa 76 for $655,000 that was accepted by the Vendors'. 28Mr Brooke recalls that 'it was proposed to acquire the property in the name of Morling College, and a sales advice was issued from the agent with Morling College Ltd as the purchaser'. 29However, he recalls that it 'was necessary to advise the Baptist Union of NSW of the proposed acquisition' and 'that there was concern by some within the Baptist Assembly that Morling College had been established to effectively create an entity that was independent of the Baptist Union of NSW'. He further states that - This was never the intention nor was it the case, however because of the sensitivity to Villa 76 being acquired in the name of the company it was decided that it was best to reassure those who were suspicious of the motives of the establishment of Morling College Ltd to have the property held in the name of the Baptist Union. 30Mr Brooke also notes in his statement that, on 21 October 2010, Geoffrey Moore, a director of the company and Honorary Legal Adviser, sent an email 'to Rev Clifford, suggesting that it would be better politically for Villa 76 to be acquired by the Baptist Union of NSW on behalf of Morling College'. And on 27 October 2010, Mr Brooke 'sent an email to Alan Soden (the General Secretary of Baptist Union of NSW) and Ron Symes (Chair of the finance Board of the Baptist Union NSW) advising that Morling College wished to purchase Villa 76' and in 'particular requesting that Executive Members of Baptist Union and the Finance Board consent to purchase Villa 76 "on behalf of and for the benefit of Morling College"'. 31Mr Brooke further recalls that Baptist Financial Services made a loan of $455,000 'to Baptist Union of NSW for the purpose of the purchase of Villa 76 for Morling College faculty housing' and that the balance of the purchase price 'was provided by Morling College from the bank operated by the company (which as previously mentioned remained in the name of "Baptist Union of NSW Morling College")'. 32In his statement, Mr Soden confirms that 'Baptist Union of New South Wales was only willing to acquire Villa 76 on the basis that Morling College Limited was responsible for the costs of acquisition (especially loan repayments), and the costs of maintaining the property' He further, confirms that - 29. At all times since the acquisition of Villa 76, Morling College Limited, and not Baptist Union of New South Wales, has paid for utilities for that villa, and has made loan payments to Baptist Financial Services. 33Mr Soden was cross-examined and provided additional factual background. 34He confirmed that 'Union is responsible for the operation' of Morling College and that when Morling College was incorporated there was concern expressed by the churches that they 'might lose control of the theological college and thereby lose control of' the 'property upon which the theological college buildings existed'. But that, after 'discussion, people accepted that it was okay, that that wasn't going to happen'. 35The following extracts from the transcript of the cross-examination provide further clarification as to the circumstances surrounding the purchase of Villa 76 - Q. ... The concern was that Morling had been established to effectively create an entity that was independent of the Baptist Union, that was the concern amongst some of the Assembly members wasn't it? A. Some of them were concerned about control or loss of control. Q. Because there was concern about loss of control is it true to say that the Assembly's view, or Union's view, was that it's considered best to reassure those members of the Assembly who were suspicious of the motive of Morling to have the property held in the name of Baptist Union? A. The property was always held in - which property are you talking about? Q. I'm talking about unit 76, that the acquisition of unit 76 be in the name of Baptist Union to allay any fears that some of the members of the Assembly of the Union had? A. Because they hadn't had - the Assembly hadn't had the conversation at that time and so there were some members of the leadership that thought it would be better rather than to introduce something that would make people feel unsettled, it would be better that it be acquired in the name of the Baptist Union indeed because the larger property, the property that - the Eastwood property upon which the college is built, is held in the name of the Baptist Union and they thought it would be a sensible thing to continue with it at that time. ... Q. In terms of unit 76, Union agreed to purchase that property in its name, that's correct isn't it? A. It did but on the understanding that all costs and everything associated with the acquisition would be attended to by the college and its management structure if you like. Q. That's right, and that's why you say don't you that the memorandum of understanding was prepared to make clear as to how - who was going to pay for the ongoing expenses? A. Yes. Q. Of unit 76 and what would happen in the event of sale, that's correct isn't it? A. Yes, I mean if it had been conducted after the articulation of the vision and the changes that have now happened, I believe it would've been acquired in the name of the college and there would've been no problem but at that time because things were in the state of flux, the decision was made to buy it the way we did. Q. That state of flux you refer to is the political issues that you raised earlier? A. That's right. Q. I'll just use the label political issues just to make clear? A. Sure, sure, quite true. Q. So because of these political issues, at the time unit 76 was acquired, the decision was taken that Union would buy unit 76 in its name, that's correct isn't it? A. That's right. Q. It was also the case wasn't it that Union agreed with Morling College that it would permit Morling College to use the unit 76 to house its lecturers, that's correct isn't it? A. Either to - as I recall it it was either to house faculty or potentially a student or students plural, yes. 36As regards the purchase of the second property, Villa 84, the following short submission was made by counsel for the applicant- 7. Nearly identical facts pertaining to the acquisition of Villa 84 by the Applicant acting in the capacity as trustee for Morling College are set out in paragraphs 51 to 66 of Mr Brooke's Statement and in paragraphs 30 to 34 of Mr Soden's Statement. Most relevant of repeating are the emails of 25 October 2011 being a circular resolution of the Applicant's Executive Committee: "That the Seal of the Union be fixed to acquire a townhouse at 84/116 Herring Road Macquarie Park, in the name of "Baptist Union of NSW on behalf of Morling College" subject to the agreement of the Finance Board. That the Seal of the Union be affixed to loan documents for a loan of $480,000 from BFS noting that Morling College will be responsible for loan repayments and any and all future costs associated with the property at 84/116 Herring Road Macquarie Park, subject to the agreement of the Finance Board" And the email of 27 October 2011 indicating that Mr Brooke had heard that the Applicant's Executive Committee had given the approval to proceed, and instructing McGrath that the property was to be purchased in the name of "Baptist Union of NSW on behalf of Morling College". 37Mr Brooke in his statement explains that in 2011 Morling College recruited 'a lecturer in Missiology (a component unit in a number of courses offered by Morling College)' from New Zealand and required accommodation for the lecturer and his family. He approached the real estate agent that had acted in the purchase of Villa 76 and was advised that Villa 84 was for sale. In his statement, he confirms that 'Villa 84 was acquired in much the same way as Villa 76, including using $200,000 from moneys that Morling College had on deposit and borrowing the balance'. 38He further confirms 'that Baptist Financial Services did make a loan to Baptist Union of NSW for the purchase of Villa 84 for Morling College faculty housing'. He also recalls that 'on this occasion it was proposed the words "on behalf of Morling College" would appear on the contract' but that these 'words appeared on the original version of the contract but by the time of exchange and preparation of the transfer they were no longer included on the contract'. 39Mr Brooke also confirms that 'since the acquisition of Villa 84, Morling College has paid for utilities, and has made loan payments to Baptist Financial Services, from the bank account operated by the company'. 40Mr Soden in his statement also confirms that a 'similar process occurred with the acquisition of Villa 84 and further confirms that - 31. Again, the Baptist Union of New South Wales was not involved in the negotiation of the contract to purchase Villa 84, the instructing of McPhee Kelshaw Solicitors or the negotiation of the loan. The Baptist Union of New South Wales signed the contract of sale, loan contract and other documents on the recommendation and request of Morling College Limited, on the basis of an agreement to later be set out in a memorandum of understanding. 32. Again, Baptist Union of New South Wales was the entity that acquired Villa 84, and it was the borrower of $480,000 from Baptist Financial Services for the purpose of the purchase of the villa for Morling College faculty housing. Relevant Legal Principles 41The legal principles to determine the existence of an express trust are well settled in law. 42The relevant test to determine the existence of an express trust, which is often relied on by courts, was stated by Mason CJ and Wilson J in Trident General Insurance Co Limited v McNiece Bros Proprietary Limited (1988) 165 CLR 107 at 121 as follows: ... the courts will recognize the existence of a trust when it appears from the language of the parties, construed in its context, including the matrix of circumstances, that the parties so intended. We are speaking of express trusts, the existence of which depends on intention. In divining intention from the language which the parties have employed the courts may look to the nature of the transaction and the circumstances, including commercial necessity, in order to infer or impute intention: see Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 at 189. 43Some further guidance is found in Kelly v Commissioner of Taxation [2012] FCA 423, in particular in the following statements (per Besanko J) - 155. ... An intention to create a trust must be clearly established. In determining whether there is such an intention, the law has regard to the objective circumstances and not the alleged trustee's subjective intention. If the outward manifestation of the alleged trustee's conduct shows an intention to create a trust then a trust will be held to exist even if subjectively the alleged trustee did not intend to create a trust. In Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, Heydon and Crennan JJ said at 290 [1115] (footnotes omitted): As with contracts, subjective intention is only relevant to trusts when the transaction is open to some challenge or some application for modification - an equitable challenge for mistake or misrepresentation or undue influence or unconscionable dealing or other fraud in equity, a challenge based on the non est factum or duress defences, an application for modification by reason of some estoppel, an allegation of illegality, an allegation of "sham", a claim that some condition has not been satisfied, or a claim for rectification. But subjective intention is irrelevant both to the question of whether a trust exists and to the question of what its terms are. (see also French CJ at 263 [17] and Gummow and Hayne JJ at 274 [55]). 156. Although an intention to create a trust must be clearly established, it is not essential that the alleged trustee use words such as "I declare myself a trustee": Commissioner of Stamp Duties (Qld) v Jollife [1920] HCA 45; (1920) 28 CLR 178 at 190-9 pre Isaacs J. 157. The other certainties which must be established are certainty of subject matter or property, and reasonable certainty as to the identity of the beneficiaries of the trust: Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86 at 97 per Dixon CJ, William and Fullagar JJ. ... 159. In a case where consideration is not provided, an ineffective disposition of an equitable interest by one mode of disposition will not be upheld by finding that there was another mode of disposition: Milroy v Lord [1862] EngR 951; (1862) 4 De GF & J 264. Even where there appears to be consideration, the Court will be cautious about attempting to rescue the transaction by holding that it occurred by a mode that the parties never intended: Bolton v Federal Commissioner of Taxation (1964) 9 AITR 385 at 386 per Windeyer J. 44An express trust 'may be created by transferring property to the proposed trustee to hold upon trust for the proposed beneficiary or, without transfer of property, by declaration of trust. Those methods of creation are mutually exclusive in the sense that one cannot effectually transfer property to another to hold upon trust and at the same time declare that one holds it oneself on trust. They are also exhaustive because, as the texts make clear, they are the only methods for the inter vivos creation of trusts. [(Of course excluding resulting and constructive trusts and trusts otherwise arising by operation of law.)]' per Nettle J in Commissioner of State Revenue v Lam & Kym Pty Ltd (2004) 10 VR 420 at [41]. His Honour, when speaking of 'texts', was referring to passages in various well recognised treatises on trust law including Jacobs' Law of Trusts in Australia [6th ed. pp 75-7] and Lewin on Trusts [at [2000] - [2015] and [5050] - [5110]]. 45The existence of an express trust created by the transfer of land to a person who is the trustee of another person can be proved by oral evidence because the trust is created by the transfer instrument (per Jenkinson J in Elio Di Pietro & Ors v Official Trustee in Bankruptcy As Trustee of the Bankrupt Estate of Patricia Williams [1995] FCA 1529. But as noted by Bennet J in Klewar v Official Trustee in Bankruptcy (2008) FCA 1788 at [51] any express trust in relation to any legal interest in land not in writing 'would be unenforceable because of the operation of s 23C of the Conveyancing Act: If a trust of any legal interest in lands, freehold or leasehold, is to be created by assignment of that interest to trustees, to be valid it must be in writing: s 23C(1)(a). If the trust property is an equitable interest in land and a trust is to be created by assignment, writing is essential to its validity both under s 23C(1)(a) and under s 23C(1)(c). Where the trust property is either a legal or an equitable interest in land, if it is proposed to make it the subject of a declaration of trust, it must also comply with the evidential requirements of s 23C(1)(b). J Heydon and M Leeming, Jacobs' Law of Trusts in Australia (7tth ed, LexisNexis Butterworths, 2006) at [706].' Submissions 46The applicant's case was that the applicant acquired 'both properties, Villa 76 in November 2010 and Villa 84 in December 2011, in its capacity as trustee for Morling College' because - 17. An analysis of the present factual situation clearly indicates that the Applicant did acquire both the properties, Villa 76 in November 2010 and Villa 84 in December 2011, in the capacity as trustee for Morling College. Similarly to Sheikholeslami v Tolcher, it was Morling College that funded the purchase of the properties, by utilising its cash/bank deposits to make payments of in excess of $200,000 per property and with the assistance of loans from BFS, where Morling College was, and has been, responsible for loan repayments and for any and all future costs associated with the properties. Most clearly, the Memorandum of Understanding in respect of each property bind Morling College to be responsible for costs of acquisition (especially the loan repayments) and costs of maintaining the properties. Morling College took steps to have strata notices, rates notices, water bills to be sent directly to Morling College and Morling College paid these invoices. 18. Further, there are manifestations of the intention of the Applicant to be trustee and create trusts over the properties. The Executive Committee of the Applicant passed a circular resolution that the Applicant purchase Villa 76 "on behalf of and for the benefit of Morling College" and subsequently passed a circular resolution that the Applicant purchase Villa 84 in the name of "Baptist Union of NSW on behalf of Morling College'. And it was on the basis that Morling College was responsible for loan repayments that the Applicant entered the respective loan agreements with BFS. 47The applicant's case was essentially that a trust was created by transfer of the two villas to the applicant as trustee of Morling College Limited. 48Ms Kaur-Bains, counsel for the Chief Commissioner, submitted that the Baptist Union did not intend to hold the two villas as a trustee for Morling College Limited on the basis of the following manifestations (references to source omitted) - In neither Contract for Sale is Morling Ltd mentioned. Indeed, and most importantly as a manifestation of intention, in the Contract for Sale of Land in respect of No 84 the words "on behalf of Morling college" have been expressly removed; Union's mortgage contract with BFS, by clause 7.3.1, expressly provides that Union was not capable of declaring a trust in respect of No 76 and No 84 without prior consent of BFS. No consent is in evidence. Additionally, it is to be noted that Mr Alan Soden (who has sworn an affidavit in these proceedings as a relevant officer of Union) is also a director of BFS. Indeed Mr Soden as Director of BFS signed the Mortgage for BFS re No 84. The Tribunal would comfortably conclude that Mr Soden would not countenance Union deliberately breaching a mortgage contract with BFS of which he is a director, (which of course would be the case if the Tribunal determines Union's intention was to declare a trust re No 76 and No 84 for the benefit of Morling Ltd). As late as October 2011 Union was expressly advising the Chief Commissioner that it was entitled to exemption from duty on the basis of s. 275(3)(b) of the Duties Act. Union, in neither exemption application, indicated to the Chief Commissioner that it held No 76 and No 84 on trust for Morling Ltd. The Tribunal may comfortably conclude that Union did not consider itself to hold the properties on trust for Morling Ltd. These are very relevant manifestations of intention. On other occasions that Union intended Morling to have the beneficial (and legal) ownership of property it has transferred that property to Morling Ltd; Union is the controlling member of Morling. It is the only member. In acting as trustee for Morling Ltd, Union is not protecting any interest of Morling's or its own that it could not and would not be in a position to protect as the sole owner of Morling. The fact that Union is the sole member, and thus controlling member, of Union also casts substantial doubt over any claim that there was concern over Morling Ltd owning property as a separate entity. Union completely controlled Morling. There was no identifiable need (other than obtaining an exemption from duty under the Duties Act) for Union to act as trustee for a company of which it is the sole member. So far as the Memorandum of Understandings are proffered as outward manifestations of intention that Union holds the properties on trust for Morling Ltd, it is submitted that those documents are outward manifestations of the opposite intention. Those documents, as stated in their purpose, "set out the rights and responsibilities" of Union and Morling in respect of the properties. They set out rights of use and enjoyment and relevant responsibilities for expenses. They say nothing of beneficial ownership. That is so in circumstances where they could have had that been the intention. Those Memorandums are not evidence of a trust. 49The applicant's response to the above manifestations identified by the Chief Commissioner was as follows. 50The Chief Commissioner 'is incorrect to say that the requirement for written consent in Clause 7.3.1 of the mortgage granted by the Applicant to Baptist Financial Services prohibited the trust for the benefit of Morling College that was created by the acquisition of the properties, where that acquisition was the "purpose" for which the loans were made by Baptist Financial Services to the Applicant'. 51The Applicant's explanation in relation to the submission that no mention was made by the applicant in its applications for exemption that it held the villas on trust for Morling College was - 12. The Tribunal should observe that although s.275(3)(c) of the Duties Act contemplates a trustee being an "exempt charitable or benevolent body", the Respondent's "Application for exemption" Form ODA 048 did not at the time (and continues not to) permit such an application to be made by a trustee under s.275(3)(c). Rather by its Form ODA 048 the Respondent forces, and continues to force, an Applicant to tick a box and seek exemption only under either s.275(3)(a) and s.275(3)(b) of the Duties Act. This is clearly contrary to the express provisions of the Duties Act. Knowingly or otherwise, the Respondent has been complicit in any errors that may originally have been made by the Applicant. That said, the Tribunal can observe that the Applicant does give as a purpose in the application forms that the "residence has been purchased to house teachers ..." The Respondent did make a decision on the non-existence of that trust relationship - and this decision is now before the Tribunal. 52In relation to the other 'bullet points' made by the Chief Commissioner, the applicant's response was as follows: 43. It is assumed that the fourth bullet point relates to the transfer of the 'college' by the Applicant to Morling College and the subsequent long term lease of the campus. Nothing can be adversely inferred from those separate transactions. 44. In relation to the fifth bullet point, the conclusions drawn by the Respondent concerning the parent corporation/controlled subsidiary are contrary to established legal principle in Industrial Equity Ltd v Blackburn [1977] HCA 59; (1977) 137 CLR 567, that each body corporate is a separate legal entity; and the Respondent's conclusions to the contrary are, in the words of Rogers AJA in Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 577, "entirely too simplistic". ... 46. In relation to the sixth bullet point, the Memorandum of Understanding sets out rights, responsibilities and such that are consistent with an existing equitable obligation. If it were necessary, the Memorandum could itself be "subsequent conduct" that was an indicator of the existence of a trust: see McEvoy at [3] and [34]. 53The applicant further submitted that the 'task of the Tribunal is to decide whether the Applicant has established that it intended to acquire the properties "on behalf of and for the benefit of Morling College", and that the Applicant holds the legal title to the properties subject to an equitable obligation to deal with the properties for the benefit of Morling College'. 54 Counsel sought 'to prove the existence of the trust by evidence of the agreement (an objective manifestation of intention) that the applicant acquired the properties on behalf of and for the benefit of Morling College' on the following basis: 5. If a written declaration of trust was required, but there was an absence of writing, it would be unconscionable (fraud by the trustee), for s.23C(1)(b) of the Conveyancing Act to be used to deny the existence of the trust: see Elio Di Pietro (supra) at [6], and McEvoy v McEvoy [2012] NSWSC 1494 at [33] per Pembroke J - both relying on Rochefoucauld v Bousted (1897)1 Ch 196. 6. Similarly, if a person entered a contract to purchase property intending to do so as trustee for another, the person cannot deny that he was trustee - and it is irrelevant that the terms of the trust have not been reduced to writing: Deryk Rowan Andre as Trustee for Estate of Colin George Ward (Deceased) v Zant Pty Ltd [2004] FCA 1716; (2004) 213 ALR 812 at [20], per Hill J - also relying on Rochefoucauld. 7. Where there is an absence of writing, the existence of the trust can be proved by the doctrine of part performance: see s.23E(d) of the Conveyancing Act, and McEvoy (supra) at [32] and [34] - where it was accepted that payments towards the mortgage, undertaking of responsibility for the rates, taxes and outgoings of the property, and maintenance and improvement of the property, represented acts of reliance referable to the trust arrangement. 8. And lastly, s.23D(1) of the Conveyancing Act indicates that an interest in land created by parol, and not by writing (under s.23C(1)(b)), has force and effect of an interest at will, meaning that it can be determined at the will of either party. 55In the Chief Commissioner's closing submissions, counsel submitted that a 'transfer of property from an arms-length vendor to an arms-length purchaser (the usual position with most sales and transfers) does not create an express trust. It is simply a transfer for value pursuant to a contract for sale.' 56It was also submitted that what is required to create a trust by transfer 'is for the settlor to transfer the trust property to a trustee to hold on the trusts', citing Lewin on Trusts, Seventeenth edition, at 3-21, p.38 and Jacobs Law of Trusts, Seventh Edition at [601].' And that in 'the present instance there is no settlor of a trust transferring property to Union who in accordance with the intention of the settlor will "hold on ... trust", for Morling.' 57Counsel further submitted that - ... only a declaration of trust by Union could create a trust in respect of Nos 76 and 84 and in those circumstances s.23 (1)(b) of the Conveyancing Act applies. However, Union says it does not contend that an express trust was created by declaration of trust. Consideration and Conclusion 58The question is whether there is any evidence or any conduct that shows a sufficiently clear intention on the part of the Baptist Union to create a trust over the two villas in favour of Morling College Limited. The inquiry requires a careful examination of the nature of the transactions and the whole of the circumstances attending the relationship between the Baptist Union and Morling College Limited in respect of the purchase of the two villas by the Baptist Union. Given that no special words are necessary to create a trust in the ordinary sense, the intention can be distilled from the language used or any conduct of the parties connected with the purchase. 59It is also necessary, as emphasised in Byrnes v Kendle (per Heydon and Crennan JJ at [114]) that in 'relation to alleged trusts which are not wholly in writing, the need to draw inferences from circumstances in construing the terms of conversations'. 60I find the following factual findings as being crucial to establish the necessary intention, in the absence of any written declaration or any trust in writing. 61The relevant parties are very closely connected and, in fact, for a large part of the history of Morling College, it was essentially 'a department of the Baptist Union of New South Wales' and the Baptist Union under its By-Laws continues to be 'responsible for the operation of the Baptist Theological College of NSW, that was established in 1916, and that has been known as Morling College since around 1985.' 62The reason it was incorporated as Morling College Limited, as stated by Alan Soden in his statement, 'was to enable Morling College to be approved by the Australian Government as a "higher education provider" under the Higher Education Support Act 2003(Cth)'. No other reason has been advanced. 63Although Morling College Limited is a legal entity, the ownership and control remains with the Baptist Union because the Baptist Union is the sole member and the Baptist Union's Council of the Department of Theological Training is the Board of Morling College Limited. No evidence was produced to suggest that the Executive Committee of Morling College was, at the relevant time of the purchase of the two villas, in the sole position to decide to acquire the properties. 64On the contrary, the evidence strongly suggests that the Baptist Union had to approve of any such purchase and, as it happened, the Baptist Union was able to decide that the legal ownership had to be with the Baptist Union. This decision was made to allay the concerns of the members of the Baptist Union. No evidence was produced to suggest that the members were informed that Morling College Limited was the beneficial owner of the two villas. 65Mr Soden who, during the relevant time, was not only the General Secretary of the Baptist Union he was also a Director and Secretary of the Baptist Financial Services Australia Limited, which provided funds to the Baptist Union to assist in the purchase of the two villas. The loan application to purchase Villa 76 was made by Mr Soden on behalf of the Baptist Union. No mention was made that the purchase was on behalf of Morling College. It was for 'Morling College faculty housing' as confirmed in the loan offer by the Baptist Financial Services. 66In his statement, made clearer in his cross-examination that 'at that time because things were in the state of flux, the decision was to buy it the way we did'. He agreed with counsel for the Chief Commissioner that the reference to 'the state of flux' was a reference to 'political issues', which concerned members of the Baptist Union as to the control of and the direction Morling College was taking at that time. Clearly, the Baptist Union did not want to lose its control over Morling College and ownership of Villa 76 ensured that the Baptist Union had that control. 67I agree with the submission made by counsel for the Chief Commissioner, that the Baptist Union members had no reason to be concerned because the Baptist Union continued to control Morling College Limited. The Baptist Union was the subscribing member and is the sole member. 68The applicant has, in response to the Chief Commissioner's submission, cited Industrial Equity Ltd v Blackburn and Briggs v James Hardie & Co Pty Ltd and submitted that 'the conclusions drawn by the Respondent concerning the parent corporation/controlled subsidiary are contrary to established legal principle' and 'entirely too simplistic'. 69Both cases, unfortunately, did not deal with the current issue being the ability of the Baptist Union Board, which was at the relevant time also the Board of Morling College Limited, to decide what properties should be purchased by Morling College Limited. 70In Industrial Equity Ltd the High Court was considering claims by creditors of companies in a group. The Court held that each company in a group had its own separate legal personality, a 'recognition which derives from Salmon v Salmon & Co Ltd [1897] AC 22, and which was has been confirmed by Lee v Lee's Air Farming Ltd [1962] AC 12'. And the court further held that creditors of a subsidiary company in a group, 'can look only to that company for payment of their debts'. 71In Briggs v James Hardie & Co Pty Ltd, Rogers AJA was considering the independent legal personality of a company within a group. His Honour observed that 'the corporate veil may be pierced where one company exercises complete dominion and control over another is entirely too simplistic' in the context of company law as it stood then. 72Neither case considered the point made by the Chief Commissioner. The question addressed by the Chief Commissioner was whether Baptist Union was in a position to exercise control over Morling College Limited. It clearly had that ability 73Both parties had the advantage of legal advice from their solicitors and from Mr Geoffrey Moore, a director of Morling College, who was the honorary legal adviser to the Baptist Union and Morling College Limited. In fact, Mr Moore's advice was 'that it would be better politically for Villa 76 to be acquired by the Baptist Union of NSW on behalf of Morling College'. 74The loan to purchase in each case was made by Baptist Financial Services to the Baptist Union and not to Morling College Limited. 75Morling College Limited did not have any independent bank account and continued to use the bank account created by the Baptist Union for purposes of Morling College. Funds from this account were used in paying the balance of the purchase price. 76A Memorandum of Understanding (MOU) was entered into by the Baptist Union and Morling College Limited, in respect of the purchase of each villa, 'to set out the rights and obligations' of the parties. The MOU, in each case, was signed by Mr Soden for the Baptist Union and Rev K Willis for Morling College Limited and is identical. The MOU for Villa 76 was signed in May 2011 but was to take effect from 5th November 2010, the date of the purchase of Villa 76. In the case of Villa 84 the MOU was signed in March 2012 but to take effect from 23 December 2011, the date of the purchase of Villa 84. 77 The MOU, in respect of each villa, states that the Baptist Union 'purchased the property for Morling for its exclusive use and enjoyment'. Under the MOU, Morling College Limited is responsible for mortgage repayments, all rates, taxes and all charges in respect of the Body Corporate. Morling is responsible for the maintenance and general upkeep of the property and for all payments whatsoever in respect of the property. The Baptist Union, also under the MOU, has assigned its voting rights for the Body Corporate to Morling. It was also 'mutually understood and agreed by and between the parties that in the event of the sale of the property all sale proceeds will wholly returned to Morling'. 78 As noted by counsel for the Chief Commissioner, in the case of both applications for exemption, no mention was made of the Baptist Union acting in its capacity as trustee of Morling College Limited. No reliance was placed on s 275(3)(c) of the Duties Act. In the case of the second application, it was on the basis that the Baptist Union was entitled to the exemption under s 275(3)(b). 79The applicant's response that the Baptist Union did not make the proper claim because the Chief Commissioner's Form ODA 048 did not permit the applicant to make the claim for exemption under s 275(3)(c) seems to be very weak. Forms, whether prescribed by law, do not affect the operation of the substantive provisions. No attempt was made by the applicant to attach a note to explain its precise ground for the exemption. It was only when the objection was lodged that the applicant sought to make the claim of being a trustee of Morling College Limited. The applicant was, of course, not bound by the grounds set out in the Baptist Union's original application for the grounds for an objection review. 80The statement made by Mr Brooke explains the background leading to the purchase of the first villa. There was clearly a need for Morling College to acquire accommodation to house a new staff member and his family. The initiative was taken by Mr Brooke to locate a suitable property and negotiate its purchase price. But Morling College was not able to purchase the property without the consent of the Baptist Union, which was sought from Mr Soden. 81Mr Soden explains, in particular in his cross-examination, the reasons leading the Baptist Union to be the ultimate purchaser and owner of the property. His explanation makes it clear that the owner at all relevant times had to be the Baptist Union. 82The MOU does not take the ownership issue any further. It merely sets out a relationship akin to that of a landlord and tenant who, instead of paying rent, was obliged to discharge the mortgage obtained by the Baptist Union to purchase the property. 83The MOU included an unusual clause that provided that, if Union sold the property, the funds would end up with Morling College Limited but in a bank account operated by the Baptist Union. No evidence was made available as to the reason for this undertaking, but it was not unusual for the Baptist Union to make available funds to Morling College to maintain its facilities. The Baptist Union provides funds to Morling College on a regular basis. Clearly, if the parties had intended for Morling College Limited to be the real owner under the MOU, this clause would not have been necessary. It was inserted to ensure that, if the Baptist Union sold the villas, the funds should be available for Morling College activities. But this clause did not create any trust relationship. 84In cross-examination, Mr Soden confirmed that the Baptist Union agreed with Morling College that 'it would permit Morling College to use the unit 76'. He did not elaborate to say that Morling College Limited was permitted to use the villa as a beneficial owner. If Morling College Limited was, in fact, the beneficial owner under the Memorandum of Understanding no permission was necessary for Morling College Limited to use the villa to accommodate staff or students. 85The applicant's short submission was that 'the Memorandum of Understanding sets out rights, responsibilities and such that are consistent with an existing equitable obligation'. This submission was not expanded and, in my opinion, is not supported by the exact terms of each of two Memorandums. 86Morling College Limited has some history of owning real estate. In his statement, Mr Brooke mentions, very briefly, that on '7 March 2008 Morling College completed the acquisition of Villa 37 in its own name'. No explanation was given by the applicant as to this independent acquisition of a villa by Morling College Limited. It is interesting to note that no similar objections were made by the members of the Baptist Union to the purchase of this villa by Morling College Limited. No mention of this purchase of a villa by Morling College Limited 'in its own name' is made by Mr Soden in his statement. 87Morling College operates from the campus at 120 Herring Street, Macquarie Park which, as confirmed by Mr Soden, 'continues to be owned by the Baptist Union of New South Wales'. From 'the incorporation of Morling College Limited, Baptist Union of New South Wales permitted Morling College Limited to occupy and use the campus'. On or about 1 April 2010, the Baptist Union granted a long-term lease to Morling College Limited at a nominal annual rent. This property was not transferred to Morling College Limited, suggesting again that the Baptist Union requires ownership of properties used by Morling College Limited in order to continue to control the management and direction of Morling College Limited. 88Mr Catt placed a great deal of reliance on the decision of the Federal Court in Sheikholeslami v Tolcher. 89Briefly, the applicant in that case sought to claim that she was the real owner of a property in Sydney, which had been purchased in the name of her sister. Both are Canadians. The sister in Sydney had been in litigation with the University of New South Wales leading to a sequestration order against her estate 'made on a creditor's petition based on a judgment debt for costs in proceedings brought unsuccessfully by the bankrupt'. Yates J held at [157]: My findings of fact, considered in light of the principles to which I have briefly referred, lead me to conclude that, upon purchase of the Kent Street property by the bankrupt, and at the time of her registration as proprietor of that property, the bankrupt and the applicant intended that the bankrupt would hold the property for the benefit of the applicant, pursuant to the arrangement I have found existed between them. These findings plainly support the existence of an express trust in respect of the Kent Street property. Accordingly, I find that, prior to commencement of her bankruptcy, the bankrupt held the Kent Street property on trust for the applicant as beneficial owner. 90Both sisters had travelled to Sydney in 1996. The applicant had accompanied to assist her sister's relocation to Australia to take up an appointment with the University of New South Wales. The sisters discovered that rental accommodation of the standard expected by the Sydney based sister 'was relatively expensive compared to the salary she was to be paid by the University and that the rent she would be required to pay for such accommodation would use up a disproportionately large part of that salary, relative to her other living expenses'. 91His Honour accepted 'that it was in these circumstances and at that time that the applicant raised the prospect that she would purchase a home unit, with financial assistance from an Australian bank, and rent it to the bankrupt, whose regular rental payments would at least cover the mortgage loan repayments' and that 'the bankrupt could not herself make such a purchase by either providing any down payment or obtaining financial assistance from a bank relying on her own means and resources'. 92The sisters 'looked at some home units for sale without, at that time, finding a suitable property to purchase'. 93After the applicant returned to Canada, the Sydney-based sister made inquiries about borrowing funds and foreign ownership of property in Australia and was advised that the bank would not entertain a home loan application from a foreign resident. Yates J accepted that in those circumstances, any home loan with the bank had to be in name of the bankrupt but on trust for the sister in Canada. His Honour also found that the applicant provided the deposit to purchase the property. 94His Honour accepted that the sisters had entered into an arrangement whereby the Sydney-based sister would lease the property from her sister by paying at least the amount of rent sufficient to cover the mortgage repayments. 95Yates J also accepted that the correspondence between the sisters, including a facsimile message sent to the Sydney-based sister from Canada by her sister and the evidence of an independent witness, assisted the applicant's claim that the property was held by the bankrupt on trust for her. The Court then held that the necessary intention had been present and that the property was held by the bankrupt sister on trust for her Canadian sibling. 96Although Yates J did not specifically refer in his judgment as to whether the express trust was created by transfer or declaration, but in the absence of any written declaration of trust or any discussion of s 23 of the Conveyancing Act it is clear that his Honour took the view that it was created by a transfer of the property on purchase in name of the bankrupt sister but on trust for her sister in Canada. This was, of course, not a traditional transfer of property from a settlor to a trustee when creating an express trust for a beneficiary. 97The decision was essentially on the special facts before the court, which had been largely accepted by Yates J in making his findings. 98The decision, except for one technical ground, provides very little assistance to the applicant to establish the necessary intention that it acquired the villas on trust for Morling College Limited. 99His Honour accepted that the bankrupt sister held the property in trust for her sister in the absence of any settlor/beneficiary transfer. It would seem that courts are willing to accept a transfer in circumstances where a settlor is absent, so long as the property is transferred directly to a trustee from an independent vendor. The recognised method of creating a trust by transfer, as suggested by counsel for the Chief Commissioner citing the learned authors of Lewin on Trusts and Jacobs' Law of Trusts, 'is for the settlor to transfer the trust property to a trustee to hold on the trusts'. The approach taken by Yates J technically assists the applicant against the Chief Commissioner's submission. But I do not think it takes the matter any further to establish a trust relationship between the Baptist Union and Morling College Limited in the absence of any intention on part of the Baptist Union to create a trust. 100One of the difficulties with this application, at least from the applicant's point of view, is the lack of any direct evidence in relation to its claim that the two villas were held by the Baptist Union on trust for Morling College Limited. 101In the present matter, the Baptist Union had to establish an express or inferred intention to create the alleged trusts. The facts do not go far enough to establish that the Baptist Union held the villas on trust for Morling College Limited, the beneficial owner of the two villas. What emerges from the evidence quite clearly is that it was necessary for the Baptist Union to be the legal owner. But there is no evidence that Morling College Limited was the beneficial owner of both villas. 102In this matter the trusts alleged were not, as was in Sheikholeslami, the result of any family dealings where the use of imprecise language is often the case used to create a trust. Here the parties had an in-house legal adviser and a firm of solicitors to advise the parties. If the parties had intended to create trusts as alleged some precise language would have been used both in the written documents/correspondence between the parties. 103The parties had the opportunity to state that relationship in the Memorandum of Understanding, but they chose merely to agree that the Baptist Union 'would permit Morling College to use' the villas, subject to Morling College paying for utilities and loan repayments, but without paying the Baptist Union any rent. 104Here the burden of proof was on the applicant that an intention to create the express trusts could be discerned from the language employed by the parties to the transactions and the relevant circumstances attending the relationships between them. Unfortunately, the applicant has failed to discharge that burden. In these circumstances, I am quite unable to be satisfied that the Baptist Union or Morling College Limited has shown there was an intention that the two villas be held by the Baptist Union as trustee for Morling College Limited. 105The conclusions I have expressed also highlight the difficulties for the applicant to succeed on the alternative formulation of the applicant's case, that a trust was created by some oral declaration. What emerges from all the evidence 'including the matrix of circumstances' is clearly a failure by the applicant to establish any intention to create any express trust in respect of both villas. 106It follows that in the absence of any trust in favour of Morling College Limited in respect of the two villas, the decision made by the Chief Commissioner and under review must be affirmed. 107Accordingly, it is also unnecessary to deal with the Promotion of Education Issue and the two Statutory Construction Issues identified by the parties. These issues would have been relevant only if the applicant was able to establish the existence of a trust in respect of the two villas in favour of Morling College Limited. ********** 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: 28 November 2013