VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP649/2018	
CATCHWORDS	
Property Law Act 1958 – Part IV – co-owned property – dwelling house purchased by parents in names of their two chldren – no contribution by children to acquisition cost – whether resulting trust in favour of parents – presumtion of advancement – acual intention of parents – evidence – directing mind that of Father – Father deceased – relevance of evidence of subsequent events – house let to tenants by Father – rent outgoings and maintenance accounted for in tax returns of children but parents received all rental and paid all outgoings and maintenance – house not revealed as asset by parents to department of social security in pension application - income from house also not revealed to Australian Tax Office -  relevance - failure of parties to call parents’ accountant to explain transaction – whether advese inference should be drawn – Applicant seeking contribution to maintenance costs from Respondent following death of Father – Respondent daughter seeking order for sale - Mother seeking declaration of ownership of fee simple in equity – whether mother co-owner – jurisdiction of tribunal – evidence that parents intended that they would receive the income from the house for their lifetimes– all claims dismissed or struck out.	

APPLICANT	Athanasios Zelos	
RESPONDENT
INTERESTED PARTY	Kyriakitsa Zelos
Maria Zelos	
WHERE HELD	Melbourne	
BEFORE	Senior Member R Walker 	
HEARING TYPE	Hearing	
DATES OF HEARING	18 – 20 November 2020	
DATE OF ORDER	4 February 2021 	
CITATION	Zelos v Zelos (Building and Property) [2021] VCAT 62	
Order

1.	The Application is dismissed.

2.	The Respondent’s counterclaim is dismissed.

3.	The claim by the Interested Party is struck out.

4.	Costs are reserved.

R Walker 
Senior Member			

APPEARANCES:		
For Applicant	Ms L. Mills of counsel	
For Respondent
For the Interested Party:	Mr A. Burnett of counsel
Mr S.L. Freire of counsel	

Reasons
Background
1	The application commencing this proceeding was brought by the Applicant (“Arthur”) against the Respondent (“Kitsa”), pursuant to Part IV of the Property Law Act 1958 (“the Act”), for contribution towards expenses he claims to have incurred with respect to a dwelling house and land in Bentleigh (“the Property”) which is registered in their names as joint tenants.
2	The Property was purchased in around May 1989 by their mother (“the Mother”) and her late husband (“the Father”), who was the father of Arthur and Kitsa.
3	Kitsa defended the proceeding and has brought a counterclaim (inter alia) for:
(a)	a declaration that she and Arthur are the beneficial owners of the Property;
(b)	an accounting for rental she says Arthur has received; and
(c)	an order for the sale of the Property and the division of the proceeds between herself and Arthur.
4	Arthur has defended the counterclaim, alleging that, from the time of purchase, he and Kitsa have held the Property upon trust for their parents who provided all of the money for its purchase. He alleges that, since their Father has since died, leaving the whole of his estate to the Mother, they now hold it on a resulting trust for the Mother.
5	On 12 April 2019, the Tribunal joined the Mother as an Interested Party to the proceeding, pursuant to s. 60 of the Victorian Civil and Administrative Tribunal Act 1998.
6	On 7 June 2019, the Mother filed a document entitled “Interested Party’s Points of Reply to Points of Counterclaim” in which she asserted that the Property was held by Arthur and Kitsa on a purchase price resulting trust for herself and the Father and, following the death of the Father, for herself. 
7	Objection was taken by the Mother as to the jurisdiction of the Tribunal to make orders that might affect her rights, but on 30 September 2020, following an interlocutory hearing, I found that the Tribunal has jurisdiction to determine the proceeding.
8	On 21 October 2020, the Mother filed and served a counterclaim seeking a declaration that Arthur and Kitsa hold their registered interests on a resulting or constructive trust for her.
The hearing
9	The matter came before me for hearing on 18 October 2020 with three days allocated. Ms L. Mills of counsel appeared for Arthur, Mr A. Burnett of counsel appeared for Kitsa and Mr S.L. Freire of counsel appeared for the Mother.

10	I heard evidence from Kitsa, Arthur and the Mother 
11	I thought that Arthur gave credible evidence and he was not shaken in cross-examination. The Mother’s evidence was rather vague, which might have had something to do with her age, but insofar as it went, I thought that what she said was believable.
12	Kitsa was not an impressive witness. Apart from her demeanour, her evidence changed in regard to what she knew about her ownership of the Property, whether she signed the transfer and also in regard to her tax returns.   Further to that, I thought that some of her evidence was unlikely to be true.
13	Following submissions given on the third day, I informed the parties that I would provide a written decision.
The jurisdiction of the Tribunal
14	Power to make orders with respect to the sale or division of co-owned land is conferred upon the Tribunal by Part IV of the Act. 
15	Section 225 of the Act provides as follows:
“Application for order for sale or division of co‑owned land or goods
(1)     A co-owner of land or goods may apply to VCAT for an order or orders under this Division to be made in respect of that land or those goods.
(2)     An application under this section may request—
(a)     the sale of the land or goods and the division of the proceeds among the co-owners; or
(b)     the physical division of the land or goods among the co-owners; or
(c)     a combination of the matters specified in paragraphs (a) and (b).
(3)     A person who makes an application under subsection (1) must give notice of the application to the holder of a security interest over the land or goods to which the application relates.
16	Section 226 provides:
“Who are parties to proceeding?
In addition to any other parties, all co‑owners of the land or goods to which the proceeding relates are parties to a proceeding in VCAT under this Division.”
17	By s. 222,  “co-owner” means a person who has an interest in land or goods with one or more other persons as joint tenants or tenants in common.
18	Section 228, provides:
“What can VCAT order?
(1)     In any proceeding under this Division, VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land or goods occurs.
(2)     Without limiting VCAT's powers, it may order—
(a)     the sale of the land or goods and the division of the proceeds of sale among the co-owners; or
(b)     the physical division of the land or goods among the co-owners; or
(c)     that a combination of the matters specified in paragraphs (a) and (b) occurs.”
The extent of the jurisdiction
19	As I ruled on the previous occasion when the matter was before me for the jurisdictional hearing, the power to make orders under the provisions referred to is conferred on the Tribunal only in regard to applications made by co-owners.
20	For the purposes of Part IV of the Act “Land” includes a bare legal estate (s.222 and s.38 of the Interpretation of Legislation Act 1984). Hence, Arthur and Kitsa, as registered proprietors of an estate in fee simple, are co-owners of the Property even if they have no equitable interest. Consequently, each of them is entitled to apply for an order under Part IV.
21	However, as I pointed out on the last occasion, the Mother is not a co-owner within the meaning of the Act, because the only interest that she claims to have, or that Arthur asserts that she has, is an equitable estate in fee simple. If she has such an interest, it is not co-owned with anyone else. Consequently, she is not a co-owner and so is not automatically a party by force of s. 226 nor entitled to apply for an order under Part IV of the Act.
22	The Tribunal, is a creature of statute and has no inherent or equitable jurisdiction, although, in dealing with matters that are within its jurisdiction, it is required to apply the law, including any relevant equitable principles.
23	In order to determine what interests Arthur and Kitsa have in the Property, it will be necessary to enquire into and determine what interest the Mother has, and any such determination will bind all three parties to this proceeding. If it is found that Arthur and Kitsa are bare legal owners, then the Tribunal can make a finding to that effect, but I cannot hear a claim by the Mother for declaratory relief because she is not a co-owner.
24	Similarly, the orders sought by Kitsa in her counterclaim can only be made against Arthur. They cannot be made against the Mother because she is not a co-owner.
The facts
25	It is common ground that:
(a)	the Mother and the Father provided all of the money for the purchase of the Property, through a mortgage loan secured over a house they owned in East Malvern, which was the family home;
(b)	upon settlement of the purchase, the Property was registered in the joint names of Arthur and Kitsa, who were then aged 17 and 18 years respectively;
(c)	following the purchase, the Property was rented, and the rental was received by the Father, and not by Arthur or Kitsa;
(d)	when the Father died, the Property was rented by Arthur, who passed all of the rental that he received on to the Mother.
26	The real issue litigated in this case is whether Arthur and Kitsa are the beneficial owners of the Property, or whether they hold their respective registered interests as trustees under a resulting trust in favour of the Mother. If they are bare legal owners, it would not be appropriate to order a sale if the Mother, as the beneficial owner, opposes such a course, and the expenses that Arthur has incurred will have been incurred by him on behalf of the Mother, not Kitsa.
The law
27	The presumption of advancement, and the presumption of a resulting trust, were discussed in the joint judgment of Deane and Gummow JJ in Nelson v Nelson [1995] HCA 25 (at paras 28 and 29) as follows:
“27. The presumptions operate to place the burden of proof, if there be a paucity of evidence bearing upon such a relevant matter as the intention of the party who provided the funds for the purchase. The first presumption is that where a person in the position of Mrs Nelson paid the purchase price for the Bent Street property and caused it to be transferred to other persons, they hold the property upon trust for the person who provided the purchase money. The other presumption, that of advancement, is perhaps not strictly a presumption at all. Rather, the position is that there are certain relationships from which equity infers that any benefit provided for one party at the cost of the other has been provided by way of "advancement". The consequence is that the equitable estate follows the legal estate and is at home with the legal title; there is an absence of any reason for assuming that a trust arose.
28. The operation of the presumption of advancement may be rebutted by evidence of the actual intention, at the time of the purchase, of the parent or other person who provided the purchase money. Evidence also may be given to support the presumption of advancement.
29. Where the presumption of advancement is rebutted, the trust which then is enforced is a resulting trust, not an express trust.” (citations omitted)
28	I accept that the onus of establishing the existence of a resulting trust lies upon the party asserting it who, in this case, is the Mother (see Sivritas v Sivritas [2008] VSC 374). I also accept that the critical factor is the intention of the parents at the time the Property was purchased.
29	Mr Burnett submitted that, in order to do this, it is necessary for the Mother and Arthur to overcome the presumption of advancement in favour of Arthur and Kitsa. For guidance as to the circumstances in which the presumption 
may be rebutted, he referred me to the New South Wales Court of Appeal case of Sze Tu v Lowe [2014] NSWCA 462,where, in a judgement with which the other members of the court concurred, Gleeson AJ said (at paras. 191 et seq.)
“191. However these submissions ignored seemingly contrary statements both in the High Court and in this Court. First, it has been said that although the presumption of advancement is rebuttable, it does "not ... give way to slight circumstances": Shephard v Cartwright at 445 (Viscount Simonds) cited in Charles Marshall Pty Ltd v Grimsley at 365 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ). As observed by Heydon JA (as his Honour then was) in Damberg v Damberg at [43] (in a section not included in the authorised report), according to Viscount Simonds the quoted words in Shephard v Cartwright were uttered by Lord Eldon LC in Finch v Finch [1808] EngR 125; (1808) 15 Ves Jun 43; 33 ER 671, but in fact they were not, though they appear in the headnote, and though the expression "slight circumstances" was used by the losing counsel in argument. Lord Eldon LC actually said that the "presumption is not to be frittered away by nice refinements" (at 674).
192. Secondly, it has been said that there must be proof of a "definite intention" to retain beneficial title, not a "nebulous intention to rely upon the... relationship as a source of control over the property": Drever v Drever (1936) ALR 446 at 450 (Dixon J, dissenting, but not on this point), cited with approval in Damberg v Damberg at [44] (Heydon JA).
193.By contrast in 2008 in Laskar v Laskar, Lord Neuberger of Abbotsbury (Tuckely and Rimmer LJJ agreeing) said at [20]:
The presumption of advancement still exists, although it was said as long ago as 1970 to be a relatively weak presumption which can be rebutted on comparatively slight evidence: see per Lord Upjohn in Pettitt v Pettitt at 814. I would add that it is even weaker where, as here, the child was over 18 years of age and managed her own affairs at the time of the transaction.
194. None of the parties addressed argument on whether this Court should depart from the earlier statements by the High Court. My own view, with due respect to the English Court of Appeal, is that the ascribing of labels, such as "weak", to recognised presumptions distracts attention from the relevant question - is there proof of a "definite intention" to retain beneficial title to rebut the presumption of advancement: Drever v Drever at 450; Damberg v Damberg at [44].”
30	I accept that, in order to rebut the presumption of advancement, the onus is upon the Mother and Arthur to show, on the balance of probabilities, that there was a definite intention by the parents to retain beneficial title to the Property.
31	Mr Burnett also referred me to the following extract from the joint judgement of the High Court in the case of Charles Marshall Pty Ltd v Grimsley [1956] HCA 58 (in para 11): 
“…The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase (in this case before or at the time of the 
acquisition of the shares by allotment) or so immediately thereafter as to constitute a part of the transaction. If that evidence is insufficient to rebut the presumption the beneficial gift, absolute or subject only to qualifications imposed upon it at the time, is complete and no subsequent changes of mind or dealings with the property inconsistent with the trust by the donor can as between himself and the donees alter the beneficial interest…”
The members of the court in that case comprised Dixon CJ, and McTiernan, Williams, Fullagar and Taylor JJ. 
32	Mr Burnett submitted that contemporaneous documents are a more reliable source of evidence than witnesses’ recollections approximately 30 years after the event. He referred me to comments made by the Full Court of the Supreme Court of Victoria in Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112, to the effect that recollections may be clouded and it is safer to place primary reliance on objective factual material. 
33	That point is clear enough, but as the court observed in paragraph 113 in that case, the advantage that the trial judge has over an appeal court is very substantial indeed. I must weigh up the evidence of the three witnesses and also the other contemporary evidence although, being mindful of Mr Burnett’s submission, I take into account that the events in question occurred over 30 years ago.
34	Mr Burnett said that the objective factual material was as follows:
(a)	The contract of sale was signed by the two children.
(b)	The Property was registered in the names of the two children.
(c)	The Property was purchased unencumbered with a mortgage on the family home.
(d)	Land tax notices were issued to Arthur on behalf of himself and Kitsa.
(e)	The rental was declared as taxable income of Arthur and Kitsa.
(f)	This proceeding was issued by Arthur asserting rights inconsistent with a resulting trust.
(g)	The parents received a pension.
35	The first two of these are a consequence of the Property being bought in the names of the two children. The third is equivocal. The fourth is the consequence of the Property being registered in the names of the two children, although the Land Tax was paid by the parents.
36	The fifth is significant. If the children did not own the Property beneficially, why were they beneficially entitled to the income? 
37	The sixth is apparently relied upon as evidence that, when the proceeding was commenced, Arthur regarded himself as beneficial owner, but it is not an admission by the Mother. 
38	The seventh is consistent with the children taking the Property beneficially, but there are at least two other possible scenarios, namely:
(a)	the parents put the Property into the names of the children as bare legal owners and did not declare the income they received to the Australian Tax Office or disclose the existence of their beneficial ownership in the Property to the Department of Social Security in order to maximize their own financial position; or
(b)	the parents sold the beneficial interest in the Property to the children, who purchased it for the rental they notionally received and paid to the parents. 
39	The first of these might be the Mother’s case. The second was suggested by an email dated 2 February 2018 that was sent by the accountant to one of the parties’ solicitors. However, that document was not proven, and its terms suggest that it might only be a reconstruction. There is no evidence to establish that that was the arrangement.
The evidence of the three witnesses
40	At the time the Property was purchased, Arthur was 17 years old and Kitsa was 18 years old. They were both living at home with the parents and it was not suggested that they were in any financial need. The parents were 53 years old, the Mother was no longer working and the Father was near the end of his working life.
41	The evidence as to the intention of the parents in regard to the beneficial ownership of the Property at that time was as follows.
Arthur
42	In his witness statement, Arthur said:
“In early 1989, prior to the purchase and settlement of 135 Patterson Rd in June 1989, my father called a family meeting with my mother, myself and my sister, and my father said words to the effect that:
(a)	my mother and father intended to purchase a property in Bentleigh as an investment property for themselves to provide security for their later years;
(b)	the property would be registered in my name and Kitsa’s name;
(c)	he would be responsible for managing and maintaining the property;
(d)	he and my mother would be receiving any rental from the property;
(e)	my parents would be taking a bank loan to pay for the purchase;
(f)	there would be a need to file tax documents regarding the property and that due to our age he would arrange for the preparation of our tax returns and Kitsa and I in turn would be required to lodge these;
(g)	mine and Kitsa’s tax lodgements would incorporate the rental incomes for the property;
(h)	both my sister and I were to comply and commit to the agreement and to acknowledge that the property was be put into our names, but that my parents were the true owners.”
43	He said that, after this conversation, the Father produced papers which he and Kitsa signed, and the Father said “…that this was on paper only and that the actual owners were my mother and father”. He said that Kitsa asked the Father to commit to taking all financial responsibility and that the Father explained that the parents would be mortgaging their home to get the loan to buy the house and that the loan would be paid off as soon as possible.
44	In his oral evidence at the hearing, Arthur said that, at a family dinner, either towards the end of 1988 or at the start of 1989, the Father announced that they were going to start looking for a property. He said his parents, his sister and he looked at a number of properties over a three-month period. He said that the Father then said to his sister and to him that:
(a)	he and the Mother had decided they we're going to buy the Patterson Road property;
(b)	they would have to take out a mortgage to fund it;
(c)	he had obtained financial advice that the best way to move forward was for the Property to be put in the children's name but that he could still have ownership of it because it was his and the Mother’s;
(d)	the Property was to be managed and maintained and all the financials and any debts, anything to do with it, was his and the Mother's responsibility; and
(e)	the advice given to him was that Arthur and Kitsa would have to declare the rental in their income tax returns.
45	He said that the Father “made it perfectly clear” that the Property was to be his and the Mother's.
46	Thereafter, he recalled going to the estate agent’s and thought that he also went to the bank.
Kitsa
47	In the first of her two witness statements, Kitsa said that her parents did not talk to her about the Property and that she was unaware of her part ownership until Arthur commenced this proceeding to recover the expenses.
48	She said that she did not recall signing the transfer of land by which she became the registered owner, but expects that she would have signed it without asking any questions because of her young age and respect for her Father. 
49	She said that she did not tell her accountants to disclose any rental or ownership of the Property because she was unaware of the Property.
50	In her second witness statement, she denied that there were any family meetings or that the Father discussed any financial matters with her. She said that she thought that the Property was in the parents’ name and that she first learned of her ownership of it after the Father had died.
51	In her oral evidence at the hearing, she denied having signed the transfer but later acknowledged that she had, she said that she was unaware of who was lodging her tax returns or that they disclosed rental from the Property. She said she first learned about the Property when Arthur rang her a couple of days after the Father had died and told her that she needed to sign a piece of paper but would not tell her what it was.
52	She said that in a conversation shortly afterwards, Arthur told her she had done tax fraud, so she sought legal advice. Thereafter, she visited the office of the estate agent. 
53	Most of her evidence concerned peripheral matters and not the central issue of the parents’ intention in purchasing the Property.
The Mother
54	The Mother’s witness statement was prepared for her by her solicitor from instructions that he received from her in the Greek language. The most relevant paragraphs were as follows:
“In or around 1989 we decided to purchase another property as an investment. We had not yet paid off the debt on our home…..but still decided to purchase another house as an investment. Dimitrios and I discussed this proposal, it was something that we decided together. We always made decisions together.
We commenced looking for homes. We found the home at 135 Patterson Road, Bentleigh (Bentleigh Property). Before we signed the contract for the purchase, Dimitrios said to me that we should go to the accountant to speak about in whose name the Bentleigh Property should be purchased. Dimitrios said to me (in the Greek language) “let me go ask the accountant to see what he tells me”. Dimitrios went to see the accountant Con Dandanis. I did not go to this meeting. When he returned Dimitrios said that the accountant agreed that it might be best to put the Bentleigh property in the name of the children. I understand that this is what occurred.
The Bentleigh Property was not a gift Athanasios and Kyriakitsa.” (sic.)
55	There was a stark contrast between the articulate witness statement filed on the Mother’s behalf and her oral evidence at the hearing. 
56	Although she has lived in Australia for sixty years, her evidence at the hearing was given through an interpreter and she appeared to have very little command of English.
57	Her evidence at the hearing was very vague. I paraphrase her evidence recorded in the transcript as follows:
“When we bought the house, we had a conversation that the house would be written in the names of the children.
My husband said to write this property in the children's name so we can afterwards have a good life.
The money for the house came from the bank. I was aware that the bank wanted security for that loan. My husband was organising those matters. The security was the house we had, I don't know.
Dimitrios spoke with the accountant. I was not present. After he spoke to the accountant he said that everything is good. I don’t remember anything else that he said about what was discussed.
The property was put into the names of our children to have it to live the other years of our lives.
We received the rent for the Bentleigh property in order that we pay all the bills of the house.
We paid all of the expenses to do with the Bentleigh property. We paid off the bank loan.”
58	In re-examination, when asked whether she and the Father had bought the Property as a gift to the children, she said:
“No, my husband and I did not buy this property to give it as a gift to our children but we bought it to live, to be there living when we become very old.”
59	Arthur said that the Father was a hardworking man who would not do anything that was dishonest and that seemed to be accepted by the other parties.
Arthur’s original application
60	Mr Burnett pointed out that, in his application, Arthur had alleged that the rental for the Property was received by the Father during his lifetime and then remitted to himself and his sister and then, following the death of the Father, was received by his Mother and then remitted to himself and his sister. That is quite inconsistent with the case that he now puts in support of the Mother’s claim, which is that the parents were the beneficial owners of the Property and always received the rental.
61	There is no doubt about what the application says, but the evidence that the parents have received the rental since the Property was purchased is overwhelming and is not disputed.
Failure to call the accountant
62	The accountant that the Father consulted before purchasing the Property was Mr Con Dandanis who was the family accountant for many years and attended the Father’s funeral. He was described by Arthur as being an experienced accountant. Not only was he consulted by the Father at the time of the purchase, he prepared the tax returns that included the rental income as income of the two children. 
63	He is still the accountant for Arthur, and, although it is not entirely clear, perhaps the Mother as well.
64	Over 30 years have passed since the purchase of the Property, but tax returns continued to be prepared for many years and expenses for the Property were paid from a bank account of the family trust. The Trustee of the trust is a company called Ribartoo, of which Arthur is now the director.
65	Despite the passage of time, it seems likely that Mr Dandanis would have been able to give some evidence to clarify what the arrangement regarding this Property was, yet no one called him. 
66	There is an email dated 2 February 2018 in the Tribunal Book where Mr Dandanis appears to have recreated some accounts between the children and the parents on the basis that the parents paid the purchase price of the Property, plus interest, totalling $266,000.00, that the rental received by the parents amounted to $171,000.00, so that the parents were still owed $95,000.00. It is unclear from his email whether this reflected any earlier agreement between the parents and the children or whether it was a later rationalization of what has occurred. Mr Dandanis could have clarified that.
67	Mr Dandanis sent another letter to Arthur in 29 May 2018 in which he spoke of his fees for preparing rental schedules for inclusion in tax returns for Arthur and Kitsa, going back to the time when the Property was first purchased. That would suggest a possible intention to change the information that had previously been supplied to the Australian Tax Office.
68	Since he was not called to give evidence, I do not know what Mr Dandanis would have said about these matters; in particular, what the advice was that he originally gave to the Father, if he has any record or recollection of it, and whether he is aware of whether the Father followed his advice.
69	Mr Burnett submitted that I should draw an adverse inference from the failure of Arthur and the Mother to call Mr Dandanis, but such an inference, if drawn, would only be that his evidence would not have assisted Arthur or the Mother. I think it is highly likely that evidence from Mr Dandanis would have been very useful but I am not sure what the effect of drawing such an inference would be. It might be that his evidence would have revealed something unfavourable concerning their financial affairs or the taxation paid or not paid on the rental that was received. 
70	Further, Mr Dandanis had also previously acted as Kitsa’s accountant and she could have called him if she thought that his evidence would have assisted her case. She knew from the Tribunal Book about the letter and email referred to, and so must have appreciated the potential value of his evidence. 
71	I was also asked to draw an adverse inference from the failure of Arthur or the Mother to call the estate agent who had an altercation with Kitsa after the Father died, but even if she had been called, I do not think that her evidence would have been of assistance in determining the original intention of the parents concerning the beneficial ownership of the Property.
The significance of tax avoidance or social security non-disclosure
72	Mr Burnett submitted that, if the transfer to the children was for the purpose of tax avoidance, the transferor cannot assert now that the transfer was only 
for that purpose and was otherwise not intended to have effect. If the tax advantage could only have been secured if the transfer was effective, then, if the benefit has been obtained, it is not now open to the transferor to say that it was not intended to be effective.
73	He referred me to a number of case, including Re Lim v Commissioner of State Revenue (2012) 90 ATR 837; Yard v Yardoo [2007] VSCA 35. 
74	A transfer is either effective or it is not. Consequently, if it is effective for one purpose, it is effective for all purposes.
75	Mr Freire referred me to Lyle v Lyle & Ors [2011] VCAT 323. In that case, property was transferred without consideration to children in order that the transferors, who were their parents, could qualify for an aged pension. A constructive trust was found to exist, notwithstanding that its existence would have defeated the unlawful purpose. The Tribunal said (at para 42).:
“Mr Davey submitted that such a trust should not be countenanced because it was for an illegal purpose, namely to impose upon the Commonwealth of Australia and its social security system. He put matters in another way when he said that the respondent resisting the sale did not come with ‘clean hands’. The leading authority on this principle is Nelson v Nelson (1995) 184 CLR 538. In that case a mother paid the purchase price for a house and had it conveyed into the names of her son and daughter. She did this to enable her to qualify for a subsidy under the Defence Service Homes Act 1918 which would not have been available to her had she been shown as the legal owner of the property. When the property was sold the mother claimed a beneficial entitlement to it and was supported by the son. The daughter however claimed that she had a beneficial interest in the land. It was contended that the mother was precluded from establishing any trust in her father because the trust would tend to contravene the policy of the Defence Service Homes Act. The High Court rejected the proposition that there was a general rule that equity will in those circumstances let the loss lie where it falls. The Court rejected a decision of the House of Lords in Tinsley v Milligan [1993] UKHL 3; [1994] 1 AC 340 to the opposite affect. A majority of the Court declared that the house was the beneficial property of the mother but concluded that its declaration should be subject to a requirement that the mother be denied the benefit obtained by her unlawful conduct and the Court’s order made the declaration in the mother favour condition upon her having repaid to the Commonwealth the amount of the benefit which she had wrongly derived by the stratagem.”
76	Similarly, in this case, if I should find that there is a resulting trust in favour of the Mother, the existence of an attempt (if there was one) to avoid an assets test for an aged pension or avoid income tax on the rental, is not a bar to her defence to Kitsa’s counterclaim.
77	The Tribunal did not impose a condition on the mother in Lyle, because the mother was not seeking equitable relief. She was simply resisting an application for an order for sale. The same applies here.
Conclusion as to intention
78	It seems clear that, so far as the intention of the parents was concerned at the time the Property was purchased, the directing mind was that of the Father.
79	He is deceased, and the accountant was not called, so all that I have is the evidence of the three witnesses.
80	Arthur and the Mother gave evidence of what they say the Father said. Arthur’s evidence was clear that the parents were to retain beneficial ownership. He gave a plausible account of a discussion involving his parents, sister and grandmother, of all four members of the family going out to look at prospective properties and then of a discussion about how it was to be purchased. 
81	The Mother’s evidence was less clear, but she said several times that the purpose of the acquisition was that they would have a good life. The Property could only assist with that object if they were to retain ownership of it or at least, entitlement to the income that it would generate.
82	Kitsa’s evidence about her ignorance of the purchase is unlikely to be true. I think it is more probable than not that she was aware of the purchase of the Property, yet she gave no evidence concerning its purchase. She denied any family discussion about the purchase, yet this was a major undertaking and I think that it is unlikely that something was not said in her presence.
83	Mr Burnett said that, since it was agreed that the Father was honest, and consulted with his accountant, it is likely that the accountant gave him advice consistent with his legal obligations and that he would have followed that advice. He said that, given the ages of the parents at the time, they could divest assets without affecting their future pension entitlements. 
84	However, as Mr Freire pointed out, this was not a divesting of assets. It was the acquisition of a new asset and it was acquired in the names of the children.
85	It seems unlikely that the parents would have imposed upon themselves the financial burden of purchasing an investment property with entirely borrowed money at such a late stage in the Father’s working life, in order to benefit two young children who, at that time, were living at home and had no financial need.
86	Further, it also does not explain the fact that the parents took the income for themselves, paid all the expenses and refused to allow Kitsa to move into the Property. Although that is evidence of facts after the purchase, I think that it can be called in aid of assessing the plausibility of evidence about the contemporaneous conversations.
87	The more likely scenario is that the parents purchased the Property in order to obtain an income in their old age. That does not explain why they put it in the names of the children, unless it was to avoid income tax on the rental and the assets test for an aged pension but, even if that was their object, that does not deprive the Mother of her equitable interest in the Property.
88	I am satisfied that the intention of the parents in purchasing the Property was to provide an income for them in their retirement, that it would belong to them beneficially and that it was registered in the names of Kitsa and Arthur for a purpose not established on the evidence. I am also satisfied that both Kitsa and Arthur agreed to hold the Property for the parents on that basis.
89	I therefore find that the Mother is entitled to an equitable estate in fee simple in the Property. 
90	That being so, although Kitsa is a co-owner and entitled to apply for an order for sale, she is a co-owner of the bare legal estate. 
91	By s. 228(1), the Tribunal may make any order it thinks fit to ensure that a just and fair sale or division of land occurs. Since she is a bare legal owner it would not be just and fair that she should receive any of the proceeds of a sale. Also, the word “may” is permissive, not mandatory. The power to order a sale should not be exercised without the Mother’s consent, and she opposes a sale.
Orders to be made
92	Ms Mills acknowledged that, in these circumstances, Arthur’s claim should be dismissed, because any expenses that he has incurred were incurred by him as a trustee and, as I pointed out in the earlier reasons for decision, his proper remedy is not against his co-trustee Kitsa, but against the Trust property or the Mother.
93	Kitsa’s counterclaim will be dismissed.
94	For the reasons stated, I cannot make an order in favour of the Mother and so her claim is struck out.

R Walker 
Senior Member