ALTER v COMPTROLLER OF STAMPS (VIC)

Members:
G Gibson

Tribunal:
Administrative Appeals Tribunal of Victoria

Decision date: 28 March 1991

---

G Gibson

The applicant Efim Alter migrated here from the Soviet Union about twelve years ago. Sophie Uchitel is I gather in fact his step-daughter, but he has regarded her as his daughter since she was four years old, and it is common ground between the parties that I should proceed on the basis that Sophie Uchitel is his daughter.

2. Sophie Uchitel was married to Sam Uchitel in December 1984 in the United States. Sam Uchitel was American. Mr Alter did not approve of the marriage. Sophie and Sam

---

ATC 2020

Uchitel came to Australia to live in about 1985. They rented premises for a while. Mr Alter then decided that he should encourage them to stay by buying a house in which they could live.

3. Mr Alter set about finding an appropriate house. He found one, and showed it to Sophie and Sam Uchitel. They liked it. Mr Alter then negotiated to purchase it. The purchase was effected in about October 1987. The purchase price was $130,000.00. It was common ground that Mr Alter provided the deposit of $32,000.00 and that the balance of the purchase moneys of $98,000.00 was provided by the Commonwealth Bank pursuant to a mortgage. The property was registered in the names of Sam and Sophie Uchitel. Sam and Sophie Uchitel gave the mortgage. Mr Alter was also a party to the mortgage and was liable for repayment of the amount borrowed.

4. Mr Alter has made statutory declarations supported by a statutory declaration of Sophie Uchitel about the circumstances of the purchase. The substance of those statutory declarations was that he assisted Sam and Sophie Uchitel to purchase the property, and paid all instalments on the mortgage, and that he did so to encourage or entice them to start a new life in this country. He said that his intention at all times was to provide the best living conditions for his daughter and son-in-law particularly since he had migrated from the Soviet Union in difficult conditions and he did not want them to endure the same problems and difficulties. He said that the only reason he was not registered as the proprietor of the home, when he provided all the funds for the purchase of the property, was to encourage them to stay in Australia with the child that Sophie Uchitel was then carrying, and to encourage them to show a sense of responsibility by undertaking a commitment to pay all bills once Sam Uchitel obtained secure employment.

5. In the course of his evidence before the Tribunal, Mr Alter swore that he had an arrangement with Sam and Sophie that he would buy the property, that they would have to pay the mortgage instalments, and that if the family stayed well, he would try to help them, and perhaps the property would become theirs. It is quite clear that this arrangement could not be said to be a binding legal agreement, but I am not able to find as a matter of fact that there was any such arrangement. His solicitor was called and gave evidence about the instructions that he had received relating to the transfer which is the subject of the relevant assessment. The solicitor could not recall any instructions about any such arrangement. The arrangement is not, in my view, consistent with the terms of the early correspondence from the solicitors for Mr Alter to the Comptroller, with the terms of the caveat that he later lodged, or with the terms of his statutory declarations. Moreover, I think that Sophie Uchitel in her evidence did more than indicate she was unaware of any such arrangement - in my view, she expressly denied it.

6. The marriage between Sam and Sophie Uchitel did not go well. Mr Alter had feared as much. In about August, 1988 Sam Uchitel went back to New York. Sophie followed him there to try to effect a reconciliation. This did not work. She telephoned her father and said the property should be transferred back to him. She said this was only fair because he had paid the deposit, all mortgage instalments, and effected the renovations.

7. Mr Alter then instructed other solicitors. They searched the title, and lodged a caveat which asserted an equitable interest by way of a ``resulting implied or constructive trust''. They then prepared a transfer of the property from Sam and Sophie Uchitel to Mr Alter. The consideration was expressed to be ``natural love and affection''. That transfer was finally executed on 1 May, 1989. It was assessed for duty in the sum of $6,700.00. The disallowance of the objection to that assessment has been referred here, after protracted correspondence.

8. Mr Alter relies on two exemptions contained under Heading VI of the Third Schedule the Stamps Act 1958. Exemption (10) is in the following terms:

``Any instrument for the conveyance of real property that is subject to a trust to a beneficiary or the trust, if the beneficiary was a beneficiary when the real property was first vested in a trustee of the trust and the trust was not created by a declaration of trust by the person in whom the real property was vested immediately before it vested in the trustee and the conveyance is -

---

ATC 2021

• (a) to the beneficiary absolutely; or
• (b) to that beneficiary, as trustee of another trust of which all the beneficiaries of natural persons who were beneficiaries of that other trust when the real property was first vested in a trustee of the first-mentioned trust -

if, when the real property was first conveyed to a trustee of the first-mentioned trust, the conveyance was duly stamped under this Act or was not liable to duty.''

Exemption (17) is in the following terms:

``Any instrument for the conveyance of real property from a nominee or trustee to the person beneficially entitled thereto where such person has contributed the purchase money therefor and a duty stamped conveyance has been executed in respect thereof to such nominee or trustee.''

9. It will be apparent that to succeed under either exemption Mr Alter must establish in substance that the property transferred was subject to a trust in favour of himself, or at least that he contributed the money for the purchase. It was conceded on behalf of Mr Alter that at least in respect of the original purchase in the name of Sophie Uchitel, Mr Alter had to overcome the presumption of advancement. The trust that I was asked to find was that Mr Alter holds an equitable interest in the property to the extent of his contribution of deposit moneys, and that the remainder of the equitable interest in the property was held by Sam and Sophie Uchitel on condition that they satisfied their obligations as mortgagors, and upon default, Mr Alter was to take the remaining equitable interest provided that he discharged his obligations under the mortgage.

10. It was then contended in the alternative that I should find, according to ordinary principles, that the property was held by Sam and Sophie Uchitel on trust for Mr Alter at least to the extent that he had paid the deposit of $32,000.00, so that the interests would presumably be $32,000.00 out of $130,000.00 held by Mr Alter beneficially, and the remainder by Sam and Sophie absolutely. It was conceded that on this narrower trust, I would have to differ from the decision of Mr Nettle in
Extra Nominees Pty Ltd v Comptroller of Stamps (Vic) 90 ATC 2021 before any such finding could provide relief to Mr Alter under Exemptions (10) or (17).

11. I make the following findings of fact: at the time that the property was purchased, Mr Alter intended to bestow a benefit of a substantial nature upon Sam and Sophie Uchitel; notwithstanding that, the parties understood that the primary liability under the mortgage would fall upon Sam and Sophie; there was no other arrangement, agreement or understanding between the parties as to what was or might be the ownership of the property; notwithstanding the arrangement, Mr Alter in fact had to and did pay all instalments under the mortgage; when the marriage broke down, it was Sophie who decided that the fair and sensible thing to do would be to have the property transferred to her father, and this was done. The evidence does not enable me to make any other findings about what may have been the relevant intentions of the parties.

12. I mean no discourtesy to the most helpful arguments of Counsel if I do not rehearse those arguments, but simply indicate my reasons for concluding that this application for review must fail.

13. In short, my conclusion is that on all of the evidence I am not able to make a finding that there was a trust in the terms now alleged by Mr Alter. In
Carkeek v Tate-Jones [1971] VR 691 at 696 Mr Justice McInerney referred to the Third Edition of Wigmore, par. 2491 citing the following:

``Presumptions may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual fact... presumptions have no place in the presence of the actual facts disclosed to the jury...''

14. I would myself have thought that the presumption of advancement could as a matter of commonsense apply not only to a disposition by a father in favour of his daughter, but to a disposition by a father in favour of his daughter and her husband. It seems clear on the authorities that the categories of this presumption are not closed. I would have thought that it was consistent with principle, and commonsense, to apply the presumption also where the gift extends to the husband of the daughter. This is particularly so in a case such as this where the actual evidence supports a finding of an intention to confer a benefit of a

---

ATC 2022

substantial nature. If, as I believe is the case, the presumption ought to be applied, then I do not think that the evidence allows it to be displaced.

15. More fundamentally, I do not think that the findings I have referred to above allow for the implication of a trust in favour of Mr Alter. Apart from the finding that he intended to benefit his daughter and son-in-law, there is a legal difficulty in finding any presumption of resulting trust. That difficulty arises from the way in which the mortgage was structured. Sam and Sophie Uchitel were liable under the mortgage, and, indeed, the parties expected that they would discharge that liability. In my view the decision of the High Court in
Calverley v Green (1984) 155 CLR 242 is authority for the proposition that if two people finance a purchase in part by way of moneys borrowed under a mortgage under which each is liable for repayment, the amount of money so provided is to be regarded as having been provided by each of the purchasers, and it is not possible to regard the money as having been provided by one of them alone simply because that person is the only person who in fact assumes the responsibility as between the purchasers for repayment of the mortgage. In my view, the provisions of the mortgage and the decision in Calverley v Green entail that I am precluded from finding that Mr Alter provided all of the purchase money, for the purposes of either Exemption (17) or for the purpose of finding a resulting trust.

16. Nor do I think that the evidence enables me to find that Sophie and Sam Uchitel held the property on trust at least to the extent to which Mr Alter paid the deposit. Ultimately, Mr Alter has to discharge the statutory onus of showing that the assessment is excessive (s. 33C(1)(b) of the Stamps Act). In my view this act on the part of Mr Alter was in substance in the nature of a gift. It is clear from the evidence of both Sophie Uchitel and her father that there was no discussion about any possible refund to Mr Alter of the deposit. I do not think that all of the circumstances would support the implication of a resulting trust arising merely from the fact of a payment, when the overriding concern of Mr Alter was to provide a substantial benefit to his daughter by providing for her a home in which she could live permanently in this country.

17. Accordingly, it follows in my opinion that Mr Alter is not able to establish an essential requirement of either exemption, and I do not think I need consider any of the other matters raised. It was I think acknowledged that the trust contended for was a bit of a mouthful. I must confess that I have not been able to dispel the impression I had during the argument that the result being contended for on behalf of Mr Alter would require the Tribunal to sit under a palm tree in a manner that is not permissible. It was, I think, Sir Francis Burt who remarked that he who sits under a palm tree knows not where the nut may fall.

18. In my view this is a matter where it is appropriate for costs to follow the event. I fix those costs at $1,500.00.

19. For the reasons given the decision of the Tribunal is:

• (a) that the assessment under reference is confirmed;
• (b) the applicant is to pay $1,500.00 costs to the respondent.