Bhana v Bhana [2002] NSWSC 117

New South Wales Supreme Court

CITATION : Bhana v Bhana [2002] NSWSC 117 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2093/00 HEARING DATE(S) : 3, 4 & 21 September 2001 JUDGMENT DATE : 1 March 2002

PARTIES : Narotamdas Bhana (P) Chunchal Bhana (D) JUDGMENT OF : Hamilton J

COUNSEL : D M Bernie (P) J A Trebeck (D) SOLICITORS : Atkinson & Vinden (P) Osborne & Bricknell (D) CATCHWORDS : EQUITY [97] - Trusts and trustees - Classification of trusts - Implied trusts - Resulting trusts - Where intention presumed - When arising - Other cases - Voluntary transfer of Torrens title land - Whether presumption arises - Whether presumption precluded by Conveyancing Act 1919 s 44 (1). Conveyancing Act 1919 ss 6(1), 7(1) & 44(1) & (2) Imperial Acts Application Act 1969 ss 8, 9 Law of Property Act 1925 (UK) s 60(3) LEGISLATION CITED : Law of Property Act 1958 (Vic) s 19A Real Property Act 1862 s 85 Real Property Act 1900 ss 46, 99 Statute of Uses 1535 Crowley v Templeton (1914) 17 CLR 457 Holt v Deputy Federal Commissioner of Land Tax, New South Wales (1914) 17 CLR 720 House v Caffyn [1922] VLR 67 Nelson v Nelson (1995) 184 CLR 538 Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273 Ryan v Hopkinson (1990) 14 Fam L 151 CASES CITED : Ryan v Hopkinson (1993) 16 Fam LR 659 Wirth v Wirth (1956) 98 CLR 228 Ford & Lee, Principles of Trust Law in Australia (3rd ed, 1996) [21080] Jacobs' Law of Trusts in Australia (6th ed, 1997) [1220] LRC 4 (1967) 83 - 84 V Scott on Trusts (4th ed, 1989) par 405 Stein and Stone, Torrens Title (1991) DECISION : Claim for declaration of resulting trust dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 1 MARCH 2002

2093/00 NAROTAMDAS BHANA v CHUNCHAL BHANA JUDGMENT 1 HIS HONOUR: The defendant, Chunchal Bhana, is the sister in law of the plaintiff, Narotamdas Bhana, having been married to his brother, Thakordas Bhana ("Thakordas"), who died on 8 November 1996. Thakordas and the defendant were the registered proprietors as joint tenants under the Real Property Act 1900 ("the RPA") of the shopfront property at 327 Hume Highway, Bankstown ("the property"). The brothers, Hindu Indians, were born and mainly lived in South Africa. The plaintiff was for some time estranged from his family because his first wife was a Muslim. Before 1984 he migrated to Australia. In 1984 he bought the property for about $29,000. For some time he lived in it. He was by trade an upholsterer. By 1988 he had paid off his borrowings to purchase the property. In 1987 he remarried. His new wife, Praphavati Bhana ("Praphavati"), is a Hindu. After his remarriage he went to live in his wife's house at Ryde and let the property. 2 Thakordas migrated to Australia in 1990 with the defendant and their youngest son. They lived with the plaintiff and his wife in their home at Ryde. The evidence of the plaintiff and the defendant is agreed that Thakordas paid the plaintiff $14,000 in July/August 1990 and that this payment was for the purchase of an interest in a business run by the plaintiff in a factory at Mortdale. Thakordas was to participate in the business by producing leather jackets, but this portion of the business did not prosper and came to an end. Subsequently Thakordas ran a tailoring business. 3 In 1991 there were seven people living in the two bedroom house at Ryde. After his leather jackets business failed Thakordas did considerable work over some months at the Ryde house for the purpose of extending it. However, by later in that year the situation in the house was becoming impossible and relations between the plaintiff and his wife had so deteriorated that their marriage was threatened. Thakordas started to look for alternative accommodation for his family but without success. It was in this context that the conversations took place which led to the transfer of the property. There is no doubt that the property was in fact transferred by the plaintiff to Thakordas and the defendant as joint tenants, that the consideration expressed in the transfer was one dollar and that the stamp duty (at ad valorem rates) and solicitors' costs were paid by Thakordas. About these matters there was no controversy. 4 As to what occurred in those conversations there is much less certainty. The evidence is quite exiguous and, of course, set down for the first time nearly 10 years later. The plaintiff made two affidavits in chief. The total account in those two affidavits about the circumstances of the transfer is as follows. In the first affidavit: "10 The seven of us living is [sic] close quarters lead [sic] to increased tension between my wife and I. In or about late 1991, my brother said to me words to the effect of 'if you divorce, there will be problems'. My brother did not find work at that time and the property seemed ideal for him to start his own business if he wanted to.

11 My brother arranged for transfer of the Property to his name and the name of his wife jointly in or about November 1991. All the arrangements for this transfer were handled by my late brother. Thereafter, my brother and the Defendant and his son Jayesh Bhana lived in the Bankstown Property.

………

15 I hoped that with my brother living in the Bankstown Property, this would improve all our domestic relations and indeed, since that time, relations with my wife have improved.

16 I also hoped that at the time of the transfer that it would assist my brother to get started in business. My brother did have a partnership with me in the upholstery business and another partner ultimately, but was not successful in that business." 5 And in the second affidavit: "3 In or about late 1991, my late brother Thakordas Bhana, attempted to find a property for his family to rent but he was not successful. About this time, he said to me words to the effect 'You have a property in Bankstown, why don't I live there?' I replied 'I have a friend living there who is paying the outgoings but it should be alright for you to live there.'

4 At about the same time, I was having marital problems and my brother said to me words to the effect 'If you get divorced the property will be split and we will have to move, so why not put the property in our names?' I replied in words to the effect, 'Yes, you do the paper work'." 6 The defendant's account of that conversation in her affidavit is as follows: "7 In about November 1991 my husband had a conversation with the plaintiff at the plaintiff's home at Ryde. Present at this conversation were: the plaintiff, my late husband, my son Jayesh, the plaintiff's wife, and myself. The following conversation took place using words to the effect of: My husband said: 'The relationship between yourself and your wife is having problems. It would be better if my family moved out. We will buy a two bedroom unit in the Ryde area. I have made some enquiries with some of the local real estate agents about buying a unit'.

The plaintiff said: 'You can move into my Bankstown property and live there'.

My husband said: 'The only way that I will move into the property is if I own it. If you want to sell it then you can account for all the monies that I have given to you and let me know how much I owe you to buy the property'.

The plaintiff said: 'I do not want any more money from you. You can have the property".

At this point the plaintiff's wife became very upset. I saw that she had a scowl on her face. She left the room.

After the plaintiff's wife left the house I heard the plaintiff say to my husband: 'Go and see the lawyers and get the papers drawn up'." 7 Her son, Jayesh, who it is claimed was present, gives an account virtually identical word for word. 8 The defendant gives the following account of a second conversation when the transfer was signed: "11 …… My husband and I delivered the document to the plaintiff at his home after it was signed by us at the Solicitor's office. At the time we delivered the papers my husband said: 'Here are the papers for the transfer of the house. Could you sign them so that we can return them to the lawyers'.

The plaintiff took the document and signed it. The plaintiff's wife was also present. After the plaintiff signed the documents his wife walked out of the room hurriedly. She had a scowl on her face and appeared to be agitated. The plaintiff followed after her quickly. They both returned to the room a short time after leaving. The plaintiff's wife then witnessed the plaintiff's signature. ……" 9 Praphavati in her affidavit denies that she was present at the first conversation (having been in Canada at the time) and I accept this. She gives an account of the second conversation as follows: "4 …… I was present at the time of the Transfer. Four of us, namely the Defendant and her husband and my husband and I, were present at that time in late 1991. At first I did refuse to witness the Transfer and went out of the house. My husband spoke to me and said words to the effect of: 'Unless we transfer the property to them, they won't move out of the house.'

I then went back into the house and witnessed my husband's signature on the Transfer. I said to my late brother-in-law words to the effect of: 'What about my children?'

He said words to the effect of: 'Do not worry about them, I will take care of it.'" 10 In her cross examination there was the following significant passage: "HIS HONOUR: Q. Why were you upset? A. I was upset because the whole property was being transferred to him, just like that, without there being any agreement he is going to pay anything to us for the property and I had kids - in fact before I signed, before I witnessed the signature, I had a very heated argument with the plaintiff's husband because I said to him, 'Look, you have got children and I have got children. If we sign the property over to you who is going to benefit from it, my children or your children?' He said, 'Don't worry about it. I'll see to it all the children get a share to the property.'

Q. But did you believe after you had signed the transfer that your husband, you and your children had no more rights of any sort to the property? A. Not really, not really. I thought there would still be something in it for us, even after signing, as my husband kept telling me they didn't have anywhere to live and if they didn't live there they wouldn't move out.

Q. You believed you had some sort of rights but you did not believe there was a sufficient agreement or definition about what their rights now were? A. That's right.

Q. Is that right, tell me if it is wrong? A. Yes, it was a very confusing situation at that stage because here was Mr Tapidas telling me my children would be taken care of. I thought at least my children would get a share. Legally I knew: This is it. He has signed it over but on the other hand I thought: Look, under all the stress, look, I am sure there will be some agreement as to why the property is being transferred.

TREBECK: Q. You told his Honour legally you knew 'this is it, I am signing it over'? A. That's right.

Q. That meant that your husband could never get that property back to him, that is what you understood, wasn't it? A. Yes.

Q. You say that you said to your later brother-in-law, 'What about my children?' and he said, 'Don't worry about them, I'll take care of it'?" A. Yes." 11 The plaintiff's case is that upon the gratuitous transfer of the property there was a presumption that a resulting trust arose in his favour and in the circumstances that presumption was not rebutted. No case is put of any other type of trust arising. The defendant's case is that, if the presumption arose, it was in the circumstances rebutted, but that the presumption of a resulting trust in respect of a gratuitous transfer is prevented by the provisions of s 44(1) of the Conveyancing Act 1919 ("the CA"). 12 A resulting trust has been said to arise in relation to land in three circumstances: first, upon a gratuitous conveyance; secondly, where there is a conveyance which does not exhaust the beneficial interest; and, thirdly, where upon a purchase of land one person pays the purchase price but causes or allows the title to be taken in the name of another. The last is commonly referred to as a purchase money trust. As to the second and third of these instances there is no doubt that equity does imply a resulting trust. As to the situation in the first instance, that of the gratuitous conveyance, there has been much greater controversy. 13 This is a most recondite and confused area of the law. It arises as a matter of history from the common use in late medieval times of conveyances to uses which were enforced in courts of equity for the purpose of avoiding feudal dues. This practice was terminated by Henry VIII by the Statute of Uses 1535 ("the Statute of Uses") which executed the uses and caused the legal title to revert to the conveyor. Thereafter the institution of the trust was evolved by equity through the mechanism of the use upon the use: see, eg, Ford & Lee, Principles of Trust Law in Australia (3rd ed, 1996) [21080]. However, there was great controversy as to whether after the Statute of Uses in respect of general law conveyances a resulting trust was implied in the case of a gratuitous conveyance. It is unnecessary for present purposes to do more than cite the illuminating discussion of this matter by Sir Leo Cussen in House v Caffyn [1922] VLR 67. There his Honour referred to the conflict of both judicial authority and learned opinion. [The situation was equally confused in the United States: see V Scott on Trusts (4th ed, 1989) par 405]. Cussen J took the view that a resulting trust no longer arose in respect of a gratuitous conveyance under the general law . [This situation was reversed in England by s 60(3) of the Law of Property Act 1925.] However, his Honour took the view that the situation was different in respect of a gratuitous transfer of land under the Torrens system. In doing so, he referred to the inapplicability of the expression of uses in transfers of Torrens title land and to the situation before the passage of the Statute of Uses. The fact that law of this age and technicality featured in his Honour's reasoning demonstrates what I have earlier said about the recondite nature of this law. I should add that, despite the great respect due to the learned authors of Jacobs' Law of Trusts in Australia (6th ed, 1997), I agree with Windeyer J, who in Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273 said at 280 – 281 that the learned authors were incorrect in stating at [1220] that House v Caffyn supra supported the proposition that no resulting trust arose from a gratuitous transfer of Torrens title land. 14 The conclusions of Cussen J were, importantly, approved by Sir Owen Dixon in Wirth v Wirth (1956) 98 CLR 228 at 236 (a Queensland case). It is important to note that neither in Queensland (see Dixon CJ ibid) nor in Victoria (where s 19A of the Law of Property Act 1958 was enacted only in 1980 upon the repeal of the Statute of Uses in Victoria) was there in force a legislative provision corresponding with s 44(1) of the CA. Despite the controversy and conflicting authority, and whether or not the remarks are obiter dicta, I have come to the conclusion that I should accept as correct the view expressed by Cussen J and approved by Dixon CJ that a resulting trust arises upon a gratuitous transfer of Torrens title land. 15 That, however, leads to the question of whether or not s 44(1) of the CA has the effect of precluding the implication of a resulting trust in the case of land under the Real Property Act 1900 ("the RPA"). This, too, is a very difficult question, made the more difficult by the fact that the only authorities bearing directly upon it are two conflicting decisions of Judges in this Division of this Court. In Ryan v Hopkinson (1990) 14 Fam LR 151 Bryson J held that s 44(1) did not have that effect. His Honour said at 155: "On Mr Ryan's behalf counsel submitted that s 44(1) of the Conveyancing Act 1919 (NSW) operates to abolish any presumption of a resulting trust in favour of the first defendant. In my opinion this submission is incorrect and is not supported by the citations of House v Caffyn [1922] VLR 67 (Cussen J) and Wirth v Wirth (1956) 98 CLR 228 at 236 (Dixon CJ). In my opinion the whole subject of resulting trusts is not touched on in any way by s 44, which relates to the conveyance of legal estates by conveyances which purport to be or operate as conveyances to uses. The language used is technical and the text of s 44(1) shows that a distinction was drawn between resulting uses on the one hand and trusts on the other. The use referred to is the use of medieval and Tudor law which the Statute of Uses 1535 executed. It is very doubtful whether the Statute of Uses ever had the effect of executing a use in relation to land under the Torrens system, which is generally inconsistent with the continued operation of this part of the former conveyancing law. Further the Statute of Uses was repealed by the Imperial Acts Application Act 1969 (NSW), so that in 1983 there was no room for a use to result or pass in any other manner under that statute, hence no room for the operation of s 44(1). A resulting trust is an equitable interest; a resulting use prevents the legal estate from passing; the two inhabit different universes and s 44(1) has no operation on the present case."

That case went on appeal: Ryan v Hopkinson (1993) 16 Fam LR 659, but nothing was said on this subject in the Court of Appeal. 16 The contrary view was taken by Windeyer J in Newcastle City Council v Kern Land Pty Ltd supra. There his Honour said at 281: "It was, however, further argued that s 44(1) of the Conveyancing Act 1919 prevented a resulting trust from arising. Provided that section applies to land under the Real Property Act 1900 so that a registered transfer is a conveyance within the definition of that word for the purposes of that section, which it appears to me it is, then that argument is, I think, correct. Old System Land could be conveyed directly without the intervention of uses (s 44(2)) for no consideration without a resulting trust arising (s 44(1)). In such circumstances it would be extraordinary if a direct conveyance of Torrens Title land without consideration should give rise to a resulting trust. Thus, if the definition of conveyance can reasonably incorporate a registered transfer which operates as a deed then it ought to be so interpreted. Thus for this second reason I hold that no resulting trust arises."

I have, with respect, come to the conclusion that Windeyer J's view is to be preferred to that of Bryson J. 17 Section 44 of the CA relevantly provides as follows: "(1) No use shall be held to result merely from the absence of consideration in a conveyance of land as to which no uses or trusts are therein declared.

(2) Every limitation which may be made by way of use operating under the Statute of Uses or this Act may be made by direct conveyance without the intervention of uses." 18 The first thing that should be said about the application of s 44(1) to land under the RPA is that on a literal reading of the Act it appears to apply. In s 7(1) of the CA "conveyance" is defined as including any "assurance by deed of any property" and "deed" in relation to land under the RPA "includes a dealing having the effect of a deed under that Act", which a registered transfer has. Section 44(1) therefore literally applies to transfers of land under the RPA. It may be argued that if there is no place whatever for the declaration of uses or trusts in instruments under the RPA, there can be no significance in their absence. However, the subsection refers to all "conveyances" generally and in some of them the declaration of uses or trusts had a place when the section was enacted. Furthermore, it must be borne in mind that the provision operates by reference to the absence of consideration and the absence of a declaration of uses or trusts is merely definitive of the class of conveyances referred to. I do not see why the section should not apply to all "conveyances" that fulfil the terms of the subsection, whether relating to old system or RPA instruments. I am of the view that this is the application of the subsection, even if uses can play no part whatever in Torrens title conveyancing. 19 Section 6(1) of the CA provides as follows: "(1) Except as hereinafter provided, this Act, so far as inconsistent with the Real Property Act 1900, shall not apply to lands, whether freehold or leasehold, which are under the provisions of that Act."

It seems to me that there is nothing inconsistent with the RPA in the application of s 44(1) to Torrens title land. In my view, s 6 does not preclude the application of s 44(1) to land under the RPA. I can discover no authority on the operation of s 6 which assists one way or the other in the situation. 20 Before the CA was enacted it was the subject of a Commissioner's report. That Commissioner was Sir John Harvey, then a Judge and later Chief Judge in Equity of this Court and a highly respected property lawyer. I have turned to that report to glean whether there is any indication as to the Parliamentary intent in s 44. In the portion of the report relating to s 44, as set out in Young and others, Conveyancing Service NSW [35102] at 3507, the Commissioner discussed the question of whether the Statute of Uses should be repealed and referred to the widely differing opinions on this. He expressed his own view that it could be repealed without harm (as it had been in New Zealand) and continued: "In deference, however, to the strong opposition to the proposal to repeal the statute, I have adopted the middle course of drafting a section which permits every limitation which might be made by way of a use operating under the statute to be made by direct conveyance without the intervention of uses. This will enable conveyancers, if they so desire, to draw their documents so as to express exactly what estates they wish to convey. in simple direct language. In time such a system of conveyancing may wholly displace the present types of conveyance. Meanwhile, two modes of conveyancing will exist side by side, and practitioners may adopt either, as they are at liberty to do at present in the drawing of wills, and as they are at liberty to do in drawing documents under the Real Property Act. Subclause (1) of cl 44 alters the old implication of a resulting use to a settlor from a simple conveyance of land, without consideration and without the declaration of any use or a trust. As a result of this section, a conveyance purporting to be made by A to B, without more, will pass to B the whole estate of A."

It appears from the last paragraph that the intention was that a conveyance in accordance with s 44(1) even without consideration should transfer the entire legal and equitable title to the conveyee. It also appears from what he said that conveyancing under the RPA was not absent from the Commissioner's mind when the section was drafted and that he appeared of the view that uses might in some circumstances be expressed in an instrument relating to land under the RPA. 21 The latter is of some significance, because my conclusion that the section applies to Torrens title transfers, and this even if uses could play no part in conveyancing under the RPA, is strengthened if uses could play any part in conveyancing under the RPA. The question of whether the Statute of Uses could have any operation in respect of land under Torrens title, is somewhat vexed. Cussen J in House v Caffyn supra at 76 seems to suggest in general terms that it could not. Bryson J in Ryan v Hopkinson ibid seems to regard it as a matter of doubt. However, the better view appears to be that the Statute of Uses could in some circumstances have some operation. This appears to have been the view espoused by the Commissioner. In the case of a transfer of the whole of the fee simple the expression of uses would seem precluded by the operation of the register as the sole source of title, together with the provisions of s 46 of the RPA and the mandatory form of transfer which is prescribed: and see Crowley v Templeton (1914) 17 CLR 457 per Griffith CJ at 463. However, the RPA provides by s 99 in relation to the transfer of other estates in land as follows: "99 The registered proprietor of any land or of any estate or interest in land …… may …… create or execute any powers of appointment, or limit any estates whether by way of remainder or otherwise, without limiting any use or without any re-assignment being executed; but upon the registration of such transfer, the said land, estate, or interest shall vest …… in the person taking under such limitation, or in whose favour any power has been executed, or otherwise according to the intent and meaning appearing in such transfer and thereby expressed."

These provisions were rarely used in practice. Complex settlements of land have not been a common feature in Australia since the enactment of the Torrens legislation and, insofar as they have been created, have tended to be effectuated by the interposition of trustees and the creation of purely equitable estates, rather than by the "strict settlement" whereby legal interests in remainder were created. The registration of vested and particularly contingent remainders under the Torrens statutes has been an area of some difficulty but the registration of remainders is possible. Stein and Stone in Torrens Title (1991) at 158 have commented on the continuing availability, but rare use, of the strict settlement in relation to Torrens Title land. They comment, indeed, upon the apparent anomaly of the possibility of future legal interests appearing on the face of the title, whereas any reference to trust interests is forbidden in most Torrens statutes. 22 The Statute of Uses was still in force in New South Wales when s 99 was enacted (in terms virtually identical to its predecessor, s 85 of the Real Property Act 1862). It does not prohibit the expression of uses in the circumstances with which it deals, although it removes the necessity for their expression (the same policy as adopted in s 44(2) with respect to old system land). To me, this explains the reference to the double system of conveyancing in the Commissioner's report. Authority for the proposition that the Statute of Uses could operate in relation to Torrens title land is provided in Holt v Deputy Federal Commissioner of Land Tax, New South Wales (1914) 17 CLR 720 at 724. There, speaking in relation to circumstances where a will could still act as a conveyance, Griffith CJ said: "The Real Property Act 1862 repealed all laws inconsistent with its provisions, and, so far as relates to conveyances or transfers of land which has been brought under the Act, the provisions of the Statute of Uses have no application. But the Statute of Uses also applied to wills, and there is nothing in the Real Property Act inconsistent with it so far as it prescribed a rule for the construction of wills. The effect is that the land was given directly to the appellant for life, and under the Real Property Act he is entitled to be registered as the proprietor of a life estate in the land."

Although his Honour spoke of conveyances or transfers he made no reference to s 99 (or s 85 of the 1862 Act, as it then was). 23 In these circumstances, although the matter is not free from doubt, I am of the view that there was room for s 44(1) to have incidence upon instruments relating to land under the RPA. If this be correct, it reinforces the conclusion I have come to that s 44(1) applies to transfers of Torrens title land. 24 That is not the end of the matter. Section 44 in terms proceeds by reference to a resulting use, and not to a resulting trust, as is the case in relation to the English Law of Property Act 1925 s 60(3) and the Victorian Law of Property Act 1958 s 19A. It should be said at once that those provisions were enacted at the time of the repeal of the Statute of Uses in those jurisdictions, whereas s 44 was enacted in the context that the Statute would continue in force in New South Wales. They also operate by reference to the absence of the expression of uses, rather than by reference to the absence of consideration. These factors may well lead to those sections having an effect different from s 44, despite some similarity of form. However that may be, the generally accepted view has been that, in relation to old system titles the effect of s 44(1) has been to prevent the implication of a resulting trust as well as a resulting use. Insofar as there is an ambiguity in the section I am assisted in divining the intent of Parliament by what is said in the Commissioner's report. The close interrelation of the use and the trust particularly in relation to the conveyancing of land and the history of resulting uses and trusts (see House v Caffyn supra at 76) suggests that this is the better view to take. It is the view taken by the learned authors of Ford & Lee, ibid. In my view the intent to be divined from the section is that the resulting trust should not be implied in relation to gratuitous conveyances, and that in relation to RPA land as well as the diminishing amount of land under the general title. To hold otherwise would create the anomaly which, as Windeyer J has pointed out in the Newcastle City Council case supra, one would hesitate to create unless the necessity were more clearly indicated by the statute than it is here. 25 One last question is whether any difference was made to the operation of s 44 by the repeal of the Statute of Uses, which was effected in New South Wales by the Imperial Acts Application Act 1969 ("the IAA") s 8. It has been suggested that, because the section proceeds by reference to uses, it has nothing to operate on after the repeal. However, the employment of uses preceded the Statute of Uses. The Law Reform Commission, recommending its repeal, anticipated no such effect: LRC 4 (1967) 83 – 84. And s 9(1)(a) of the IAA would appear to preclude that result. 26 In those circumstances it is my conclusion that no presumption of a resulting trust arose from the transfer of the property to Thakordas and the defendant. The transfer gave the whole of the legal and equitable estate to the transferees. 27 One thing that may detract from this view is a dictum of McHugh J in Nelson v Nelson (1995) 184 CLR 538, a case which did involve Torrens title land in New South Wales. His Honour at 600 appears to assert that a resulting trust is presumed in case of a gratuitous conveyance as well as upon provision of the purchase money of land transferred to another. However, the dictum is obiter, as the case is one of a purchase money trust. There are no dicta to similar effect in the other judgments in Nelson. It does not appear that s 44(1) or its effect was cited or discussed in that case. In the circumstances, despite my great respect for his Honour, I do not regard myself as bound by that dictum. 28 As in my view no presumption of a resulting trust arose, it is not necessary for me to decide whether it was in the circumstances rebutted. However, if it were necessary to decide that, I should decide that the presumption was rebutted. I have grave doubts as to whether Jayesh was present when the first conversation took place. But, in any event, the identical wording (without any adequate explanation of how it came about) of his and his mother's accounts of the conversation robs them both of credibility. I am not prepared to accept their version of the conversation. I found the most credible witness, both as to recollection and as to the quality of her account, to be Praphavati. I do not think that a change in her evidence as to whether she challenged her brother in law before she left or after she came back to the room substantially detracts from her credibility. I accept that she believed at the time the transfer was executed that its effect and her husband's intention were to transfer all rights in the property to his brother. In her belief he said nothing either in the room or outside that conveyed any intention but that, and that in the face of her obvious distress at what was occurring. His answers in cross examination were confused. At times he claimed that he had believed that his brother had an obligation to transfer the property back to him; at another he conceded that he gave his brother the totality of his "former interest" in the property. I should add that I would decline to find that the motive of the transaction was to remove the property from the ambit of the Family Law Act 1975 (Cth). In my view the motivation that he had at the time was the absolute necessity on any terms to get Thakordas and his family out of the house in order to save his marriage. To do that he was prepared to do anything including transfer his whole interest in the property to Thakordas and his wife. He did not say anything to his wife at the time that evinced any intention to retain an interest in the property. The fact that benefits had proceeded from his brother in the form of the $14,000 for the enterprise which failed and some months work on his wife's house, together with the familial relationship, render it less unlikely that a gift was contemplated. By reason of those considerations, I should, if wrong about the non existence of the resulting trust, still reach the same conclusion as I have expressed in [26] above as to the result of proceedings. 29 Finally I should add that, if it is possible for a resulting trust to arise from an intention on the part of a voluntary transferor to retain the beneficial interest, rather than from the absence of consideration (which I gravely doubt), it will be plain from [28] that I should not find such an intention established. 30 There will therefore be judgment for the defendant on the plaintiff's claim. Subject to any submissions on the plaintiff's part, it seems to me that costs must follow the event. **********

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