Advertisement

Father fails to rebut presumption of advancement – $75,000 paid to daughter for real estate

family law casenotes

In Koprivnjak [2023] NSWCA 2 (2 February 2023), the New South Wales Court of Appeal dismissed an appeal from a decision of Peden J of the equity division of the Supreme Court of NSW.

In this case, a father (John) unsuccessfully sought a declaration that his daughter (Natalie) hold a property at Shoal Bay, NSW, on trust for him, by way of resulting and common intention constructive trust.

John had separated from Natalie’s mother. The property was sold as part of family law proceedings and the sale proceeds held in trust, pending a determination as to beneficial ownership ([12]).

Natalie had bought the property for $300,000. John had paid $15,000 for the deposit and $60,000 to Natalie for the purchase. He also liaised with a mortgage broker and then Natalie’s bank to assist her in obtaining a $240,000 loan to fund the purchase; and subsequently transferred $1,400 per month to her account to meet mortgage outgoings. 

Griffiths AJA said (from [13]):

“There is … no dispute that if the $75,000 paid by John was properly characterised as a contribution towards the purchase price of the property, the presumption of advancement placed the burden of proof on John to show a contrary intention. (…)

Advertisement

[26] … [T]he only money which John paid directly to the vendor for the purchase and/or mortgage was $15,000 … The balance of the purchase price was paid from the $60,000 John placed in Natalie’s bank account and the … loan, for which Natalie was solely legally responsible … (…)

[54] In the … banking records … John had described each of those payments … as ‘Natalie Deposit’, ‘Loan to Natalie’ and ‘Natalie Loan’ respectively. … [T]his was inconsistent with John’s evidence … (…)

[95] … [N]o appellable error has been established with respect to the primary judge’s reasoning that John had not rebutted the presumption of advancement in respect of his payments towards the mortgage obligations and improvements to the property (apart from the $75,000 loan which was secured by the mortgage).”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

Share this article

Leave a Reply

Your email address will not be published. Required fields are marked *

Search by keyword