【Classic Cases】WXX & AnXX v WXX [2010] NSWSC 1XX6

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

BRYSON AJ

Friday 22 October 2010

SC 2010/2XXX6 KXX MoX YiX WXX & AngX v JoXXXh ChX Wai WXX

JUDGMENT

1 HIS HONOUR: The parties to these proceedings are closely related. The first plaintiff is the mother of the second plaintiff, who is her youngest child and the youngest of her three daughters and the defendant is the youngest of her three sons. The first plaintiff was born in 1928 and at the time of hearing was 81 years of age. The defendant was born in 1958 and the second plaintiff was born in 1960. 

2 The family migrated to Australia from Hong Kong in 1975 with several other family members. There was considerable adversity in the first plaintiff’s early years in Australia. She was not supported by her husband who returned to Hong Kong and died there in 1982. 

3 The defendant attended High School in Australia but not for long and left in Year 10. He has had various occupations, first working in restaurants. At a later time he owned a taxi for some years. 

4 The second plaintiff attended High School in Australia for three or four years and since then has worked in positions where she had some business experience, as a cashier in a hotel, as a legal secretary, as a teacher of English in Japan. Later she worked as a legal secretary for five years in a large law office in Hong Kong. 

5 There were no pleadings. The plaintiffs sought to establish trust interests in land of which the defendant is the registered proprietor, relying on constructive trusts alleged on several alternate bases. The second plaintiff claims that she should be given a constructive trust interest or some other equitable remedy over the house at Earlwood having regard to extensive renovations which had been carried out at the expense of her husband and herself. The nature of the equitable remedy and the ground on which it should be awarded had to be collected from written submissions and from observations by the plaintiff’s counsel, in the absence of any pleadings. A claim like this is not a fit subject for extemporisation. The second plaintiff made a number of money claims against the defendant arising out of breach of trust and several loans; the lapse of time made it obvious that there would be questions under the Limitation Act 1969. There was also a claim that obligations of the defendant to the second plaintiff were secured under an equitable mortgage by deposit of the Certificate of Title; it never became clear which obligations were said to be secured in this way. 

6 The facts were complex and there were disputed issues of fact. The issues could not be clearly understood from the affidavits. The folly of attempting to conduct a complex equity suit in the middle of the air, without defining issues, should have been obvious to all the professional persons involved. The Court should not be handled in this way; the possibility is clearly opened up of further disputes about what was or should have been in issue, and what should have been decided. The evidence was distinguished by an unusually large clutter of marginally relevant and frankly unimportant small details.

7 The events precipitating the litigation were that the first plaintiff lodged a caveat on 16 September 2009 on the title to the defendant’s house in Earlwood claiming “an Equitable Estate in the land arising from the Caveator’s financial contribution and otherwise, to the acquisition and maintenance of the land and further interest”. She said in the caveat “The caveator purchased the property on trust for the Registered Proprietor and [the second plaintiff]”.

8 On 3 December 2009 the second plaintiff lodged a caveat claiming a beneficial interest in equal shares with the defendant and an equitable mortgage. Solicitors representing the plaintiffs wrote to the defendant on 15 December 2009 calling on him to transfer a half share to the second plaintiff, pay the second plaintiff $100,000 said to be “half of the costs of the renovation” and acknowledge a life tenancy of the first plaintiff by a registrable instrument. The defendant was also called on to pay the second plaintiff $124,700 in respect of the Campsie property. These claims were altogether excessive, but the defendant’s evidence is that he did not open the letter and first knew of the claims when he was served with the summons. The plaintiffs continue in occupation of the house, and there is no evidence that, when the proceedings were commenced, the defendant had sought to eject them. He does not make any cross-claim, and they continue in occupation.

9 The second plaintiff gave evidence that in early 2007 she wished her husband to move out of the house and asked the defendant to help; and he declined and told her that her husband could stay in the room downstairs. This led to argument in which the defendant said that her husband could stay but the second plaintiff had to leave the house right away. She did not do so and he has never taken any action to eject her. There have been discussions between them about entitlements, from which it appears that at times the defendant has at least considered conferring some entitlement on the second plaintiff; however he has not agreed to do so.

10 After the family migrated to Australia, they lived in rented accommodation in various places until the first plaintiff and the defendant bought a strata title unit in Summer Hill; title was in their names as tenants in common. This was the family home of the present parties and other family members for some years. The defendant’s evidence was to the effect that the property was purchased for $57,500; he says “we paid $10,000 together” and also says that he took out a mortgage for $47,500 under his own name from Advance Bank. Registration particulars show that the unit was transferred to them in equal shares in September 1980, when a mortgage to NSW Permanent Building Society Limited was registered. The mortgage must have been granted by both of them notwithstanding that the defendant’s evidence is that he was the borrower. It was his evidence that only he made payments on the mortgage and only he paid the outgoings; no one else paid any rental or other expenses, or payment like rent. Several family members lived there.

11 After the house in Earlwood was acquired the strata title unit at Summer Hill was sold. The defendant’s evidence is that the sale price was $140,000, after expenses about $100,000 was left and the first plaintiff took this sum and kept it. However later, about August 1989, at his request she gave him $50,000, which she said was the part of the proceeds that was left, to purchase a taxi; she transferred $50,000 to his bank account and he purchased a taxi, using the $50,000 and a much larger sum borrowed from an ANZ affiliate. He used the Earlwood property as security for the taxi mortgage. His evidence about the amount of proceeds of the sale of Summer Hill was incorrect to a significant extent as the statement of the solicitors who acted for them as purchasers, which the second plaintiff found in the house at Earlwood at a late stage in the litigation, shows $79,804.39 as the balance remaining after discharge of mortgage and payment of expenses. There may have been some further moneys from the deposit after deduction of agent’s commission, but the defendant’s statement that about $100,000 was available is significantly excessive. The $50,000 which he later received was more than half the proceeds of sale. On any view, the first plaintiff got a significant part of the proceeds of the sale of Summer Hill.

12 Adverse observations on the implication of this inaccuracy for the defendant’s credit were made, but in my view these have no force, remembering that his evidence related to transactions from 22 years earlier of which he did not have a written record.

13 Dealings with the Summer Hill property do not have great significance for the disposition of these proceedings, but I notice that there was no formality in this shared dealing between family members, there was no exactitude about accounting between the first plaintiff and the defendant, and there was no exactitude about outgoings among family members who used the house as their shared home. The defendant’s name was on the title for a half share, and actual enjoyment of the advantage of the dwelling as a family home was shared amongst several family members without apportioning out the burdens to accord with the benefits. These events show an immigrant family doing their best with the resources available without being punctilious about ownership rights among family members. They also show however that the defendant was treated as a part-owner, and that obligations and entitlements went with this. 

14 The house at Earlwood, the subject of these proceedings, was purchased on 21 December 1987. The defendant was the sole purchaser. The purchase price appears by the Transfer, which was registered on 18 March 1988, as $139,950.

15 The plaintiff recalled the price at about $150,000, and says she paid a 10% deposit of about $15,000 “with all the moneys that I had at the time”. She does not claim to have made any other contribution to the purchase. 

16 The defendant’s evidence is that when he was looking for a house the first plaintiff told him “I have $40,000, you can use it to buy a house. You can put it in your name as well”. He agreed, and she transferred the $40,000 into his bank account in a few instalments. In his evidence the $40,000 became the deposit and he obtained a mortgage for $100,000 from ANZ Haymarket branch. The property and the mortgage were solely in his name. His sister Annie, who is not a party to the proceedings and has made no claim, paid the solicitor’s fees. 

17 That is to say, the defendant’s evidence is that the plaintiff contributed $40,000 which was used for the purchase. Plainly in neither case is the recollection of the amounts involved exact. The amount of the purchase price suggests that a 10% deposit would be $13,995; there was a withdrawal from the defendant’s bank account at ANZ Haymarket of $13,997 on 11 December 1987; this was probably used for the deposit (perhaps with a $2 fee for a bank cheque).

18 Notwithstanding the first plaintiff’s evidence that she contributed $15,000, it should be accepted that she in fact contributed $40,000 to the purchase. Unless the plaintiffs establish that this contribution was not made with the intention of making an advancement for the benefit of the defendant, no resulting trust arises where the first plaintiff, his mother, made a contribution to the purchase of the house in the name of the defendant; see Brown v Brown (1993) 31 NSWLR 582.

19 The plaintiffs’ case is that the first plaintiff made a statement to the defendant, at the time of discussing putting his name on the title, which establishes that they both intended to different effect. The first plaintiff said (affidavit 19) that she told him 

“I don’t want to put my name in because I am too old, CingX is in Japan, so she cannot sign the papers, we’ll put your name only for the ownership of this house, but half of this house in fact belongs to CingX, each of you own a half share of the house.”

and that the defendant replied “OK”.

20 The defendant denied that this conversation happened. In his evidence the relevant conversation was the one in which the first plaintiff told him that she had $40,000 and he could use it to buy a house in his name. He denies that there was any conversation with the first plaintiff about the second plaintiff having any interest in the property, and says that from what he understood he was always the only person whose name would be on the Earlwood property. 

21 All witnesses at the hearing had strong interests in the outcome, and they were obviously influenced by their interests. I do not have confidence in the defendant’s evidence. His credibility was severely impugned. Although I keep in mind that much of the defendant’s evidence was given through interpretation, I did not find his demeanour when giving evidence at all impressive. It is very unlikely that he has sufficient difficulty in speaking English to justify his requiring interpretation. He has lived in Australia since 1975, and he was 17 years old when he got here. Earlier he lived in Hong Kong and went to school there, and a lot of English is spoken in Hong Kong. He gave me the impression that he was playing the fox and using what opportunities there were to take time and think things out. Sometimes he spoke an answer in English, but he did not sustain this and reverted to interpretation after a relatively short answer. I have a very adverse impression of the way he handled language and interpretation. 

22 However it is not possible to make confident findings on the basis of the first plaintiff’s evidence either. The first plaintiff gave oral evidence and I had the opportunity to observe her. The adverse effects of advanced years on her memory and on her personality were very obvious. She did not have sufficient vigour of mind to sustain cross-examination and give careful or considered answers. Her situation, when giving evidence in litigation among closely related family members would have been stressful to any parent at any age, but it was plain that giving evidence about her conduct and state of mind many years ago was quite beyond her. She twice broke off from giving evidence, weeping and in obvious distress, so that I adjourned the proceedings briefly. She repeatedly dealt with questions put to her by referring to her difficulties of memory; this was plainly correct and not a mere shield or cover. The Court’s usual expectation about how cross-examination will be conducted associated with Browne v Dunn (1893) 6 R 67 (HL) did not apply in her case: her incompetence as a witness was altogether clear. She returned repeatedly to two or three themes about what she always did or always said without any particularity; and in my appraisal this was the most she was capable of. She cannot have been in a better state or more able to give reliable evidence when she made her affidavit a few months earlier in March 2010. The burden lies on the plaintiffs in accordance with the test in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (Dixon J) of bringing my mind to an actual persuasion on the balance of probabilities that she had and manifested an intention which rebutted the presumption that she made an advancement of the purchase money; it is not possible to reach such an actual persuasion on the basis of her evidence. A claim that unrecorded conversations more than two decades ago created enforceable interests in land which outweigh registered title is a serious allegation and should not be accepted without full consideration and evidence which creates confidence. Conveyancing by conversation around the kitchen table cannot readily be regarded as effective, even by people with no legal training, and the Court can only act if the facts are clearly proved.

23 I also have to address the probabilities of the matter. On her own evidence, the first plaintiff told the defendant “I don’t want to put my name in because I am too old …”. This leaves no room, on her own evidence, for finding that she made the contribution with the intention that she should have a life interest; but such a claim was made, markedly anomalously and unsupported by any substantial evidence. According to her evidence she said: 

“CingX is in Japan, so she cannot sign the papers…but half of this house in fact belongs to CingX …”

This is not a reason why the title could not be put in the second plaintiff’s name; any necessary communication with the second plaintiff could have been arranged without great delay, and if a lawyer acting on the purchase had known that this was considered to be a difficulty, the lawyer is highly likely to have pointed out that she could easily be contacted. It is also highly likely that a lawyer who knew of an intended benefit for the second plaintiff would have taken some measure to record her intended involvement, and put her intended entitlement on a better footing than reliance on unrecorded conversations. 

24 There is no indication that the first plaintiff or the defendant made or considered making a written record, in Cantonese or in English, or making a contemporaneous statement to another family member, establishing the intention with which the property was being purchased. There is no indication of any arrangement to protect or assist the defendant in respect of the large obligation for the balance of purchase money which he would have to undertake and did undertake by borrowing on mortgage. It is altogether improbable that the defendant would have incurred a large liability for the benefit of his sister, who was absent overseas and did not know of the transaction, without her being placed under any obligation however informal to assist him to meet the mortgage debt. Not only was there no arrangement for the second plaintiff to be involved in this way; she did not know that the house had been purchased at all let alone that she was to have an interest in it, until about September 1988.

25 As the first plaintiff was contributing less than a third of the purchase price, it is difficult to see how she would think she could give a half interest to her daughter, or why the defendant, if he were in a rational state of mind, would agree to that.

26 Ancillary to this claim were some issues relating to the source of the contribution which the first plaintiff made. Her evidence relates to what she thought was a contribution of $15,000. Some observations were made by plaintiffs’ counsel directed to showing that some of the money contributed by the first plaintiff is traceable to moneys which the second plaintiff had sent to the first plaintiff from Japan, and had been deposited by the first plaintiff in her own bank account. From the evidence, including the second plaintiff’s evidence, these payments should be understood to have been a gift to her mother, although there was probably some shared concept that there was a moral obligation on the mother, as the most senior member of the family, to deal with the money in an appropriate way. Attempts to show that remittances by the second plaintiff in Japan were paid into the first plaintiff’s bank account and could be traced to moneys later paid out were unsuccessful. There was not enough information in evidence about what moneys were in the first plaintiff’s bank account for any tracing exercise really to begin. 

27 In oral evidence the first plaintiff said, after saying to the effect that she paid the down payment meaning the deposit, as follows (T43, line 33):

“Q. And you don't recall how much that was?

A. INTERPRETER: I can't recall how much, but my husband gave me a diamond watch and a diamond ring I sold them and paid the deposit.”

And at line 41:

“Q. When you provided the deposit by selling the watch and I think the ring, you gave that money to JoXXXh?

A. INTERPRETER: I cannot recall, but I remember that I used this amount of money to pay for the deposit. Whatever my daughter would like, I would buy for her.”

This evidence does not support tracing money of the first plaintiff into the deposit.

28 Overall and notwithstanding my poor view of the defendant’s credibility, I do not find on the balance of probabilities that there was any such statement of intention as the plaintiffs claim. 

29 The plaintiffs gave evidence relating to a conversation later in 1988 when CingX returned from Japan. The first plaintiff’s evidence is as follows:

“28. In September 1988, CingX returned to Australia from Japan. JoXXXh and I picked her up from the airport and brought her to our new home in Earlwood. I remember we had a conversation to the following effect in front of JoXXXh:

‘Me: Do you like your new house?

CingX: Yes mum, I love it.

Me: I’m glad that you like the house, I was worried that you might not like it because it is so old. The deposit we paid for the house consists of the money you sent from Japan, so both of you and JoXXXh have half share of the house.’ “

30 The second plaintiff also gave evidence about this event:

“29. On the way home from the airport, mum and JoX were telling me that the Earlwood property was very old and full of rubbish when they bought it and that they need to renovate the house. When I stepped into the house, I remember telling my mother in words to the effect ‘the house is not bad’.

30. My mother continued in words to the effect ‘Do you like the house?’ I replied ‘Yes, I like it very much’. My mother said in words to the effect of ‘I’m glad that you like the house, a portion of the deposit paid on this house was the money you sent to me from Japan. I’ll give you half share of the house, and JoX the other half’. “

31 It should be observed first that these events were not contemporaneous with the acquisition of the property or the contribution of purchase money; title had passed to the defendant in March 1988. Conversations about six months later are not available to establish the intention with which money was contributed at the time of the purchase; the event of purchase had ended. Endeavours were made to establish that these statements were made in the presence and hearing of the defendant, so as to found a constructive admission based on the absence of intervention and dispute by him at the time. 

32 It was not established in a clear way that these statements (if they were made at all) were made in circumstances where the defendant could hear them; or in circumstances where he was reasonably called on to engage in debate. According to their evidence the conversations between the plaintiffs took place as the defendant drove them in his car to Earlwood from the airport, and again while the second plaintiff, who had only heard of the purchase of the house in the conversation in the car, was inspecting the house for the first time. They do not say that the defendant took part in these conversations. The defendant denied that he knew of any such conversation and denied that he ever had any conversation with either of the plaintiffs to the effect claimed.

33 I am not able to find on the balance of probabilities that there were conversations in the circumstances and to the effect which the plaintiffs’ evidence would support. If there had been, the defendant could not reasonably be supposed to think that his title to his house was under challenge as he picked his sister up from the airport and drove her to the house which had become the family home. There could well have been discussion about the acquisition of the house and its availability for the second plaintiff to live in, as she has now done for many years. In my finding these events, if they happened, do not assist the plaintiff’s case.

34 It was contended for the second plaintiff that these conversations and the circumstances in which they occurred constitute representations (I take it, by the defendant) upon which the second plaintiff relied to her detriment, giving rise to an entitlement to some equitable remedy. This contention and the conclusions which were drawn from it do not have a basis in fact. 

35 Later treatment of the mortgage debt by the defendant supports the view that he was the sole owner of the property. He used the property as security when he incurred further debt in connection with buying the taxi. He paid out the debt in a refinancing in 1992, in which he mortgaged the property to the Arab Bank. He repaid all that debt by 2002, when the mortgage was discharged and he received the Certificate of Title; he did this with his own resources, or in any event without resources of the plaintiffs. There are assertions that the plaintiffs or one or other of them made payments towards the mortgage on Earlwood but there are no confirmations of this and no particulars of times or amounts, and the defendant’s evidence is to the effect that only he made such payments. In my finding no one but the defendant paid off the mortgages on Earlwood.

36 It was the first plaintiff’s evidence that, dealing with times after acquisition, 

“I remember I always said to JoXXXh in words to this effect ‘You cannot sell this house while I am alive. This house belongs to you and CingX in equal shares’. I have told all of my children many times in the past in words to the effect of ‘this house is for JoXXXh and CingX only when I am gone’. “

She said to the effect that it was her hope that her family and she could live in the property as long as she lived. She gave evidence to similar effect orally, always in highly general terms. Indeed she has lived in the property at most times since it was acquired, and she still does now, as does the second plaintiff. 

37 Statements of this kind, the exact terms of which cannot be established, do not establish beneficial ownership, no matter how often they are repeated. As the house has always been treated as the family home and has actually been available for family members particularly the plaintiffs to live in, there can well have been many statements to the effect that it was not to be sold while the first plaintiff was alive, and that it was in some way to be available to the second plaintiff; it would not be surprising if such attitudes and expectations were held by family members, and so far they have actually been fulfilled. 

38 In December 1988 the second plaintiff purchased a home unit in Campsie for $117,000. The first plaintiff said that she paid the deposit with $10,000 which she said was money that the second plaintiff had given her. There is not a full explanation of sources of funds. The second plaintiff borrowed the balance of $93,000 from the ANZ Bank. She did not occupy this unit, which was a rental investment. She went overseas about July 1990 and remained overseas at most times until January 2003. However there were visits, by her to Australia and by other family members to her overseas. After travelling in China she worked for five or six years as a legal secretary in Hong Kong for DeaXXXs, a large legal firm. She married and had a daughter. She and her family came to live in Sydney in January 2003; they moved into the Earlwood property and have lived there ever since.

39 It is notable that sufficient care was taken with the identity of the registered proprietor for the names of the first plaintiff and the defendant to appear on the title of the property at Summer Hill and of the second plaintiff alone on the title to the property at Campsie. What was done about land titles within this family suggests that placing the title to Earlwood in the sole name of the defendant was not a random circumstance but was a considered action.

40 For some years after the second plaintiff went overseas the first plaintiff managed her investment property for her, collecting the rent and paying expenses. She became ill in 1996 and told the second plaintiff that she was unable to manage the unit and it should be sold, and that she could buy another property when she came back to Sydney using the money from the sale. The second plaintiff agreed and the first plaintiff arranged for her son ChX YuX WXX (who is not a party to these proceedings) to help her sell the unit. ChX attended to this, arranged for the sale of the unit for $124,700 and retained a solicitor to act for the second plaintiff on the sale. 

41 Some documents relating to the sale were sent by the solicitor to the second plaintiff in Hong Kong, signed by her and returned; these were the Contract of Sale, or in any event the first page where she signed as vendor, and a Power of Attorney appointing the defendant her attorney for limited purposes connected with the sale. The second plaintiff signed these documents and in each case had her signature witnessed by a lawyer at DeaXXXs and returned them to the solicitor in Sydney. 

42 The Power of Attorney is in evidence (CB74). Its terms show that it was executed in Hong Kong on 2 April 1997, witnessed by Ms M S NX, a New South Wales solicitor at MXXXrs DeaXXXs, GrXXXm & JXXXs, Hong Kong and registered in the Land Titles Office on 8 May 1997. The defendant executed the Memorandum of Transfer on sale in exercise of this power.

43 The second plaintiff and the defendant each gave evidence which seemed to be directed to establishing some distance between the deponent and the Power of Attorney. The second plaintiff says that it was only after commencement of these proceedings that she realised that the document was a Power of Attorney, that she was suffering depression at the time and did not appreciate what it was that she was signing or its effect. At the time she had some years’ experience working in law offices in Australia and in Hong Kong as a legal secretary, and she arranged for her signature to be witnessed by a lawyer at DeaXXXs. This evidence is extremely improbable and I do not believe it. 

44 The defendant for his part says that he cannot remember whether he was told that he had a Power of Attorney at the time, that he signed whatever his brother and sister asked him to. In my finding it is altogether clear that in fact he knew that he had been given a Power of Attorney by the second plaintiff. I do not understand why this was so or why ChX did not become the attorney; but that is not an important matter.

45 A curiosity is that the Power of Attorney states a number of matters which the attorney was authorised to do including executing the transfer, but does not expressly authorise the attorney to receive the proceeds of sale. In connection with the transaction the defendant gave his bankcard to the solicitor who was acting for the second plaintiff so that the solicitor could deposit the sale proceeds into the defendant’s account. He says: 

“I felt that if I had the power of attorney I was the one who is supposed to deal with the money anyway.”

46 The defendant gave evidence which suggested that in some way he was not fully a party to the arrangements under which the balance of the proceeds of sale were received into his bank account. This has no substance; it is altogether clear that he must have known and did know that arrangements were made for these funds to go into his bank account. They did go into his bank account; it is his evidence that about $50,000 was received and deposited into his bank account and “I understood that the money was not mine”. The transfer was dated 16 May 1997 and registered on 31 May 1997. It is probable that the amount which he refers to as about $50,000 was paid into his bank account in May 1997.

47 The figure of $50,000 is suspiciously round; there has been rough and ready accounting, but at this interval of time and in the absence of solicitors’ files or other documents in evidence, I have no reason to think that the accounting might be improved on by a further enquiry; I would not order an inquiry but adopt $50,000 as the figure for which the defendant was accountable.

48 The defendant has never paid over the $50,000 to the second plaintiff. He has never accounted to her in any proper way. In my view his behaviour in not giving her the money in the intervening 13 years has been dishonest and is severely adverse to his credit. As any honest person would know immediately, money received in these circumstances as a result of acting under a Power of Attorney is held on trust and cannot be used for one’s own personal purposes; one does not need to be an equity lawyer to see that at once. The defendant has had a plain obligation to pay over or account for $50,000 to the second plaintiff, from the time when he received it in 1997.

49 In the summons claims 11, 12, 13 and 14 relate to the defendant’s liability for the proceeds of sale. The defendant by his counsel relied on provisions of the Limitation Act in answer to this claim.

50 The failure to account to the second plaintiff when he received the money into his bank account was in my finding a breach of trust, and subject to the limitation period of six years fixed by s 48 of the Limitation Act; see s 48(a), but subject to consideration of the exception in s 48(b) where another limitation is fixed under provision of the same Act. 

51 Section 47(1) relates to 

“An action on a cause of action: 

…

(b) for a remedy of the conversion to a person’s own use of trust property received by the person while a trustee, against that person or against the person’s successor, …”.

The limitation period in s 47 is:

“(e) a limitation period of twelve years running from the date on which the plaintiff or a person through whom the plaintiff claims first discovers or may with reasonable diligence discover the facts giving rise to the cause of action and that the cause of action has accrued, …”

52 Other provisions of s 47(1) do not apply; the claim is not in respect of fraud or fraudulent breach of trust as in s 47(1)(a) or to recover trust property or property in which it can be traced as in s 47(1)(c) or property which has been wrongfully distributed as in s 47(1)(d).

53 In my opinion the second plaintiff’s claim relating to the $50,000 is not based on fraud or deceit and does not fall within the references to fraud or to deceit in s 55 or in s 47. The facts in evidence do not in my understanding show a basis for a claim of fraud or deceit. If such a claim were relied on, there would have been a need to plead it in a clear way.

54 On the defendant’s evidence (affidavit 37) in June 1997:

“I also took the $50,000 from my bank account for the reception and wedding expenses. When I arrived in Hong Kong, I met with my sister CingX and said to her, in words to the effect of:

I: ‘I took the $50,000 for my reception. I will return the money to you, whenever and wherever you want me to.’

CingX: ‘No problem’.

No interest was ever mentioned in relation to this amount.”

55 The second plaintiff denies that there was any such conversation and says to the effect that she did not ever receive any explanation of what had happened on the sale of her property: 

“45. Since then, I did not hear from anybody in relation to the sale of my property any more. I didn’t know when it was sold, the sale price or the amount actually received after paying off the mortgage, where the money went.”

56 The second plaintiff said that she asked the defendant who told her “don’t worry about it, I’ll fix it up”, and she asked the first plaintiff and her brother ChX and received answers which gave her no information and in effect fobbed her off. In her evidence she did not learn until 2007 from ChX that the defendant was indeed involved in the sale of her property.

57 The second plaintiff’s evidence would seem to show that her claim was barred under s 48 after six years from the end of May 1997 when she became entitled to an accounting. The defendant’s evidence that he took the $50,000 from his bank account establishes that the relevant limitation period is 12 years under s 47(1)(b). The defendant’s evidence shows (and it must be accepted in this respect) that in June 1997 he converted the money held on trust for the second plaintiff in his bank account, to his own use by drawing it out and spending it on his wedding reception. The period of 12 years runs from the time indicated by s 47(1)(e).

58 The defendant’s evidence that he told the second plaintiff in Hong Kong in June 1997 that he had taken her $50,000 for his wedding reception and that he would return it whenever and wherever she wanted him to, is improbable; the probabilities favour a finding that, as her evidence would show, she was not given this information at that time. If she had been positively informed that he had taken her money and used it in that way, it is very unlikely that she, with her experience as a legal secretary, would not have taken some effective action to enforce her rights at that time or in the years which followed; relevant circumstances include her marriage, family obligations, need for housing and her expenditure of significant money on the Earlwood property. 

59 Section 47(1)(e) requires me to consider when the second plaintiff might with reasonable diligence have discovered the facts giving rise to the cause of action arising on conversion by the defendant to his own use of the money held on trust for her. Notwithstanding that she was in Hong Kong at the time, avenues for enquiry into what had happened on settlement of the sale and whether there was any balance due to her, and what had become of it, were plain and obvious. She had received communications from the solicitor acting for her; the simplest enquiry of that solicitor would have told her how much money was due to her and would also have told her that it had been paid to the defendant. Indeed it seems objectively very unlikely that the solicitor, who had communicated with her to get her to execute documents, did not give her a statement at the conclusion of the purchase by posting a copy of the statement to her in Hong Kong; that would be the ordinary and prudent thing to do which few solicitors would omit. She could also have made enquiries of her brother ChX about what took place. It is very unlikely that ChX and the first plaintiff fobbed off her enquiries.

60 Then too, it is very improbable, notwithstanding her evidence, that she was unaware that she had executed a Power of Attorney giving authority to the defendant. If she had acted with reasonable diligence she would, within a few days or a few weeks after May 1997, have made enquiries which probably would have revealed how much money was due to her and what had happened to it. If she had used reasonable diligence she would in my finding have discovered the facts giving rise to the cause of action well before 11 January 1998, that is, more than 12 years before the commencement of these proceedings. If the defendant’s evidence about what he told the second plaintiff in June 1997 were believed, the 12 year period began some time in June 1997.

61 In reply to this defence plaintiff’s counsel relied upon statements in the defendant’s affidavit of 24 April 2010 in these proceedings as a confirmation under s 54 of the Limitation Act. 

62 The defendant’s affidavit of 24 April 2010 contains the passage to which I earlier referred acknowledging that the defendant understood that the $50,000 was not his, that he took it for his wedding expenses and that he told the defendant that he had done so in June 1997. In my opinion this is not a confirmation within s 54(1) because, in accordance with the terms of subs 54(1) itself, confirmation is not available unless it is made before the expiration of the limitation period which, if there were otherwise any uncertainty, had certainly expired by 24 April 2010. In other words, if the statements in the affidavit constitute an acknowledgment, they were made after the cause of action had been extinguished and therefore cannot be relied upon.

63 I also incline to the view that the statement in the affidavit in these proceedings is not within the terms of s 54(5) a confirmation made to the second plaintiff; it should not be seen as a communication directed to the second plaintiff at all, and for this reason does not fall within s 54(2)(a)(i). However, I do not act on this view, for reasons which appear from a later excursus. 

64 Claim 6 in the summons is a claim for a declaration that the defendant charged the property at Earlwood to secure loans made to him by the second plaintiff and that the second plaintiff holds an unregistered mortgage by deposit of title deed. Underlying this are claims that the defendant is indebted to the second plaintiff for money lent. It is difficult to understand this from the summons and the affidavits, but it emerged at the hearing that such claims are made. There is no claim for a judgment for debt for money lent. There are references here and there to other money said to have been lent or paid to the defendant by the first plaintiff, but no claim seems to be based on those.

65 The second plaintiff alleges (affidavit 47) that in about 2000 the defendant asked her to lend him $7,000 and said that he would repay her in three month’s time; she agreed and sent him $8,000. He has never returned any of this money. She also says (affidavit 55) that “one day in 2003” the defendant asked her to lend him $10,000 and promised to repay in a month’s time; he said “I can borrow from the bank but I hate the paperwork”. She agreed, she withdrew $10,000 from the bank and handed it to him. He has not repaid the $10,000 although a couple of times he returned $1,000 to her and then asked for it back within a few days.

66 She says that about a month later (that is to say, in 2003) he again asked her to lend him $10,000, she agreed to do so, withdrew $10,000 from her bank account and handed it over to him in cash. Although he occasionally returned $1,000 to her, he would ask for it again within a few days, so that ultimately he did not repay any of this loan. 

67 The defendant’s evidence generally confirms these events except that he says that the loan in 2000 was $5,000 not $8,000 or $7,000. Of the loans totalling $30,000 his evidence confirms that he borrowed that sum in total but he says “I have repaid her a few thousand, but I cannot remember how much”. 

68 She says that again in October 2003 the defendant asked her for a loan of $10,000 and she agreed. Her evidence of this event is as follows:

“On or about October 2003, JoX came over to the Earlwood property again asked me to lend him money and said to me in words to the effect of ‘Can you lend me $10,000. This is the last time. Here is the certificate of title of this property. You have this as security, so you don’t need to worry about not getting your money back’. I replied ‘OK’. Again, I didn’t ask him why he needed so much money, but in fact I was glad that he said it was going to be the last time because I am not that rich, I cannot afford to lend any more money to him. He drove me to HSBC Bank in Hurstville again. I forgot whether it was this occasion or when I paid off the credit card debts for him that I had to use the funds in my joint name account with my husband KaX HXX.”

As so often in this case, the claim is that arrangements of serious import were left to word of mouth, but without any explanation for the absence of an obviously useful written record. These are not day-to-day arrangements within a household. They refer to serious property rights.

69 The defendant’s evidence dealing with possession of the Certificate of Title is as follows:

“43. When she first arrived in 2003, I had the following conversation with CingX while showing her my Certificate of Title of the Earlwood property (which was in a drawer) at the same time:

I: ‘If you want that $50,000 I can pay you back immediately. The mortgage on this house is all paid off, check out this certificate of title. I can borrow up to $200,000 with this Certificate.’

CingX did not indicate whether she would like her money back immediately or not. I then put the certificate back into the drawer. Subsequently she said: ‘You are just going to keep it in the drawer like that? How about you give it to me and I will keep it somewhere safe for you’.

She then opened the drawer and took the Certificate out. I left the room before I could see where she kept the Certificate afterwards as I did not mind where she would put it. At that time, I believe that as long as the Certificate is somewhere in the house it was good enough for me. I believe that CingX still has my Certificate of Title at the moment.”

70 Each was challenged on these events in cross-examination. The evidence of neither of them made a good impression on me. The evidence of the second plaintiff is improbable in that the proposition which she attributes to the defendant that the Certificate of Title should serve as a security for a further loan is a marked departure from the informal arrangements in which earlier loans of significant sums had been made, without any formality and in particular without any written record. It is improbable than an arrangement about security over the Certificate of Title would have been made without any kind of covering memorandum, particularly in view of the second plaintiff’s experience of working for some years in law offices. Each of them knew what a mortgage was. Handing a certificate of title to a bank or other business lender to whom one was indebted would have fairly obvious implications of an intention to create security; handing a certificate of title to one’s sister who is living, rent free, in one’s house does not have those obvious implications.

71 In the defendant’s evidence of what took place he showed her the Certificate of Title so as to make it known that the mortgage had all been paid off and that he was in a position to borrow significant funds; that he was keeping the Certificate of Title in a drawer in the house and that she proposed to keep it safe. This is a plausible account. Indeed both are plausible accounts, and I see no real indication that the probabilities favour one or the other. The second plaintiff’s evidence leaves it quite unclear whether, according to her account of the transaction, she was to have security for the last $10,000 which was advanced contemporaneously, or whether security extended to earlier advances. If it was an arrangement for security, this question must have presented itself to the minds of those participating; I cannot see how they would have failed to discuss the subject of how much money was to be secured, and it is very likely, even between persons closely related, that some note would be made of the arrangement. 

72 KaX HXX gave evidence that in a conversation with the defendant, sitting in the defendant’s car outside the Earlwood home, early in 2007, after discussing conflict between the second plaintiff and the defendant, the defendant said to KaX HXX “Actually I gave the title deed to CingX”. The defendant denies saying this. KaX HXX’s evidence attributes it to him that he told him this, in a conversation when the title deed was not being discussed and the statement of the defendant was a propos of nothing. The statement itself if it was made is indeterminate as to whether there was an arrangement for security over the title deed. The circumstances made it very improbable that the defendant made the statement and he denies it. I do not find that it was made.

73 The defendant’s evidence does furnish an explanation of a kind for his showing his sister the title deed. It was significant, in the context of his borrowing from her, that the title was free of mortgage. This would indicate that he was in a position where he potentially could borrow from a bank. 

74 According to the defendant’s evidence, the context included that he owed her $50,000 as well as the various loans, and that she knew that. In the course of cross-examination the defendant said (T107-15)

“Q. Is it possible that the conversation you had with CingX when you had the certificate of title in your hand occurred later in 2003? 

A. INTERPRETER: No. Once she arrived I show it to her because I want her to - I want to show her that I have the certificate of title and she would be happy for me. 

Q. You want to show her the certificate of title and-- 

A. INTERPRETER: She would be happy for me. 

Q. Oh, so she would be happy for you, is that why? 

A. INTERPRETER: Yes. “

75 There were adverse observations on the reference to making the second plaintiff happy, but remembering that the answer was given through interpretation, and the defendant’s position that he showed her the Certificate of Title to show that he was in a position to raise money, I do not find that answer anomalous.

76 The second plaintiff has quite good English and gave her evidence without interpretation. She has significant experience working in offices in Sydney, including a law office, and even longer experience working in a law office in Hong Kong where English is one of the languages used. In this context, the absence of records, whether written confirmation of the defendant’s obligations, or other records of significant transactions seems to me to be a marked anomaly in her evidence. Her evidence relating to the Power of Attorney and her claim not to have known what it was is altogether unlikely, even if it is true as she claims that she was suffering from depression at the time. Her evidence about her state of knowledge and state of mind about whether any money was due to her from the sale of the Campsie property, and her lack of effective action when she was not given explanation or was fobbed off, is so improbable as to be adverse to acceptance of her evidence. 

77 The defendant’s evidence made a markedly poor impression on me, while the second plaintiff’s evidence included some implausible passages. While I am not able to make any confident finding about what arrangement was made or about the circumstances in which the second plaintiff got control of the Certificate of Title, I am not able to find on the balance of probabilities that there was an agreement or arrangement that she was to hold it as security for a debt or debts. I find that the conversation which took place was about how the Certificate of Title would be looked after and kept safe in the defendant’s house. 

78 In Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 566 a unanimous High Court said “a loan of money payable on request creates an immediate debt” and stated fully the basis of this view. Australian courts have acted on the view that this establishes the accrual date for limitations of actions: see Chidiac v Maatouk [2010] NSWSC 386 at [234]-[238]. All the loan debts referred to in evidence have been extinguished by the operation of Limitation Act s 63. There can no longer be an effective security for payment of those debts. For this reason, if there ever was an equitable mortgage by deposit it is no longer in force.

79 The second plaintiff’s evidence is to the effect that soon after she returned in 1988 the first plaintiff and she decided to knock down the laundry and build a bigger one at the same spot with extra room. She said “We did not trouble JoXXXh with the renovation”. She paid for the labour, material, council application and engineer’s fees. In the second plaintiff’s evidence, the Earlwood property required a lot of work to be done before anyone could move in. She gives some evidence about work done on the property, not in clear terms and not accompanied by evidence of the amounts spent at this stage. She does say, however “JoXXXh was not involved or paid for any of the renovation costs”.

80 As well as making the house suitable for occupation by family members, a number of rooms, up to five, were rented out for some years. The rent was collected and the first plaintiff kept it.

81 By the end of 2004 the defendant had moved out and lived elsewhere. In the second plaintiff’s evidence, in or about March 2005 the defendant wished to renovate the Earlwood property “because the house was very old”. She says that the defendant approached a builder for a quote, without effect, and that she later obtained a quote from the builder for renovations at around $65,000. She said “At the end of the day, the [cost] was around $80,000”. 

82 After renovations started the builder said that he had found termite infestation, problems with the roof timbers and tiles; the tile roof was replaced with Colorbond. The second plaintiff said in her affidavit “At the end of the day, there were some unexpected expenses incurred, my husband KaX HXX spent approximately $80,000 on the renovations. All payments were made by him from his bank account with no contribution by JoX or Mum”. Her evidence would show that apart from agreeing to renovations and initially contacting the builder, the defendant had no real part in the renovation and made no payment. The first builder was discharged, another builder was unsatisfactory and the third builder who was introduced by KaX HXX’s cousin took about a year to finish the renovations. 

83 There is no satisfactory proof of the cost of these renovations. Although in affidavit evidence the second plaintiff and her husband each spoke of the cost in round numbers as around $80,000, she referred to a much higher figure in oral evidence, and her solicitor on her behalf sent a letter of demand before action putting the amount spent at $200,000. She produced documents which were admitted in evidence only on credit; these did not support the claim that $200,000 was spent. 

84 The evidence of the second plaintiff and her husband on the subject of how much was spent on renovations is not reliable, but it could not support a finding of more than $80,000. There is no evidence which would support a finding establishing the amount by which the renovations increased the value of the property, if they did so. 

85 There was no evidence that the defendant ever gave the second plaintiff or her husband or anyone else, any promise or assurance about the outcome if the renovations were carried out. The picture that the defendant’s evidence would give is that he initially wanted some renovations done and took ineffective measures to involve a builder; the second plaintiff and her husband took control of matters, engaged and paid builders, made decisions about what was to be done and did not involve the defendant in any significant way. He had moved out of the house before 2005 when the renovations began. 

86 There is no basis in the second plaintiff’s evidence for finding that she relied on any representation or assurance by the defendant that she would have any interest in the property or any advantage resulting from carrying out the renovation works and paying for them. She does not claim that there was any representation or assurance, or that she assumed that there was one from circumstances, and she does not give evidence that she relied on any such matter. The expectations of the second plaintiff and her husband are I think clearly established by evidence of her husband showing that what he hoped for was that they would be able to live in the house for 10 years; and five of those years have passed. The expectation that they would stay in the Earlwood property for 10 years was not created by the defendant; it appears to have been generated by KaX HXX himself. There is no evidence that the second plaintiff shared that expectation; she does not say in evidence what advantage, if any, she expected that her participation would bring to her. It is KaX HXX’s evidence that he has not asked to have the money that he paid for renovations paid back and “I just want my family and I to stay in the Earlwood property for at least 10 years”. This is not a basis on which an interest in the house could be awarded by the Court to the second plaintiff by way of a remedial constructive trust.

87 The plaintiffs’ counsel, referring to Baumgartner v Baumgartner (1987) 164 CLR 137 at 147-148, contended that the second plaintiff should be awarded a remedy under the equitable principles there referred to, in which the Court “restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them”. These observations were made in explanation of passages in the judgment of Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 620 of which the majority in Baumgartner approved. 

88 In my view there is no basis for a remedy on these principles. There was no joint endeavour, joint relationship or other shared investment project. In particular, there is no basis on which it should be found that the purchase and occupation of the Earlwood house was a shared endeavour of the second plaintiff and the defendant. The second plaintiff had no part in acquiring the house. Its owner and its only owner at all relevant times has been the defendant. The plaintiffs and several other family members have been allowed to live there as if it were their home, without payments in the nature of rent. At two stages, in about 1988 and from about 2005 onwards, the second plaintiff has taken part in and paid for alterations and renovations so as to make the house more suitable to the needs of herself and persons for whom she felt concern. The defendant’s involvement has been that when his relatives wished to do these things at their expense he did not stop them. He allowed them to go on using his house as the family home; and they are still doing so. There is no connection between these events and the principles discussed in Baumgartner. 

89 Counsel also contended that there was a common intention constructive trust or proprietary estoppel. In my view the facts furnish no basis for such a conclusion.

90 On behalf of the defendant it was contended that the second plaintiff’s evidence shows that the money expended on renovations in 2005 and later was not hers but was her husband’s money. In one passage in her evidence she clearly speaks to that effect, but overall it appears that the money was drawn from a joint account, containing (it would seem) money derived from sale of property which her husband had owned in Hong Kong. The money spent on renovations was money of which in a practical sense the second plaintiff shared with her husband control and disposition. If she had been otherwise entitled to any remedy in respect of this expenditure, she would not have failed on this ground.

91 At the present time the second plaintiff’s wish to continue to occupy the house has not been defeated. She and her husband are still in occupation and the defendant has made no cross-claim or taken any other measures to remove them. The litigation was precipitated by the second plaintiff making demands far in excess of any rights she may have, which the defendant did not comply with. Both plaintiffs continue in occupation. 

92 In the circumstances I am of the view that I should dismiss the proceedings.

93 I come now to the excursus on acknowledgement and s 54 of the Limitation Act. The history of the law of acknowledgments was explained in Spencer v Hemmerde [1922] 2 AC 507 by Viscount Cave at 512 to 516. The Limitation Act 1623 did not deal with acknowledgments, and judicial decisions gave effect to acknowledgements which were treated as fresh promises to pay. The effect of these decisions was limited by Lord Tenterden’s Act 1829 (Imp) which was applied in New South Wales by the Written Memorandum Act 1834: the force of Lord Tenterden’s Act s 1 was to require that the acknowledgement be in writing and signed. The underlying need to find an express or implied fresh promise to pay continued: the implication was made readily, but it does not seem possible to treat a statement in evidence, in an affidavit or elsewhere, which establishes the fact of a debt as a promise to the creditor.

94 In the ordinary meaning of the word “acknowledgment” an acknowledgment is a communication. It is used in this sense in the Limitation Act as shown by context in s 54(2)(a)(i) which refers to an acknowledgment “to a person”. An admission that there was a cause of action, in a document which is not a communication to or in some way directed to the person who has the cause of action is not, in the ordinary meaning of language, an acknowledgment to that person, and does not become in the ordinary use of language an acknowledgment to the person, for the reason that it is known that the document would come to the knowledge of that person.

95 On the occasions when s 54 has been considered by the Court of Appeal of New South Wales, there has not been any close analysis of the concept of acknowledgment in the context of an affidavit, pleading or similar document. It is I think right to say that the Court of Appeal has taken a broad view of what can constitute acknowledgment. In General Credits Ltd v Wenham (1989) 18 NSWLR 570 – a draft proof of debt lodged by a mortgagee with the liquidator claiming moneys were owed under a mortgage was an acknowledgment of the mortgagor’s claim to redeem the property and obtain an account – questions addressed on appeal related to the sufficiency of the contents of the communication: see 574-575, and the Court was of the view that a communication to the liquidator was an acknowledgment to the company: see 575-576. 

96 In Marks v Roads & Traffic Authority of New South Wales [2004] NSWCA 43; (2004) Aust Torts Reports 81-732 at 81-732 there was no corresponding difficulty. In Duncan v Mendes [1998] NSWCA 278 the issues related to the sufficiency of the contents of a letter of acknowledgment directed to the claimant’s solicitor.

97 In my understanding it was accepted in The Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535 that an acknowledgement is a communication to the creditor. This appears more clearly in the dissenting judgments: Brennan J at 579 and Gibbs CJ at 548 (dealing with the final submission). In the majority judgments Aickin J treated a different issue as the critical issue: see 549. Wilson J (with whom Murphy J agreed) regarded the absence of intention to communicate to the creditor as immaterial so long as the document is actually delivered to him: see 566, and regarded this as emerging from cases including Hipworth v Mahar (1952) 87 CLR 335, from which Wilson J at 561 set out the citation from Blair v Nugent (1846) 3 Jo & Lat 658 at 677 in which Sugden LC gave an affidavit among the instances of a sufficient acknowledgement. While I do not regard the question as altogether settled, Wilson J’s treatment requires me to accept that a statement in an affidavit may be an acknowledgment to a party to the proceedings.

98 The Irish cases referred to in Hipworth v Mahar and the references to affidavits in them seem to me difficult to relate to the principles on which acknowledgements were based. Indeed they were based on different legislation 3 & 4 Will 4 c27, s40, which the High Court said corresponded with s 304 of the Property Law Act 1928 (Victoria); see Hipworth at 339. The High Court set on one side the common law doctrine of “acknowledgment”: see 341.

99 There is no indication that s 54 of the Limitation Act was intended to widen the scope of acknowledgments: its terms are directed to full and clear restatement, without any large departure.

100 I regard the standing of a statement in an affidavit as an acknowledgement as open to further consideration, but perhaps only in the High Court of Australia. For this reason I have not acted on the view to which I would have inclined in the absence of Wilson J’s view in Stage Club Ltd.

101 My order is:

I give judgment for the defendant with costs.

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