Considering providing financial assistance to a family member purchasing a home? The recent case of Koprivnjak v Koprivnjak  NSWCA 2 has some important reminders.
The case of Koprivnjak v Koprivnjak  NSWCA 2 (Koprivnjak) is a recent case heard by the New South Wales Court of Appeal. In this article, we look at the equitable principles of advancement and resulting trusts in the context of a father providing financial assistance to his daughter for the purchase of a home.
In 2011, John Koprivnjak advanced $75,000 to his daughter, Natalie, to assist her in purchasing a $300,000 home in Shoal Bay (Land). John also made subsequent contributions towards renovations and maintenance of the Land. Natalie funded the balance of the purchase price with a loan secured by a mortgage in favour of the National Australia Bank. Both the Land and the loan were in Natalie’s name only.
The Land was sold in 2020 in the course of Family Court proceedings following a marriage breakdown between John and his then wife. A dispute arose between John and Natalie as to the beneficial ownership of the Land. John claimed that he had an equitable interest in the Land as a result of his contribution to the purchase price and renovations. Natalie argued that the money was a loan and that there was no intention to create a trust.
Ownership of legal and equitable (beneficial) interests
In Australian law, there are two types of interests that can exist in real property: legal and equitable interests.
A legal interest refers to ownership of a property which means having both the right to use and control the property as well as the right to sell or transfer it to another person.
An equitable interest, on the other hand, refers to a person’s entitlement to some benefit from a property, such as the right to receive income from the property or the right to use the property for a specific purpose. A purchaser under an uncompleted contract has an equitable interest in the property which may become a legal interest when the contract is completed.
Presumption of Advancement and Resulting Trusts
When an individual (the beneficial owner) makes a contribution to the purchase price of a property which is then held in the name of another person (the legal owner), there is a presumption in equity that a “resulting trust” is created by which the legal owner of the property holds it on trust for the beneficial owner, to the extent of the beneficial owner’s contribution.
However, in Australian law there is a competing presumption in the context of familial relationships known as the presumption of advancement. A presumption of advancement may arise when a parent contributes money for a child to buy a property. It presumes that the payment of money is intended to be a gift.
The presumption of advancement is rebuttable. This means that it can be challenged by evidence that shows that the contribution of money was not intended to be a gift, and the person contributing the money intended for their equitable interest to be retained. The presumption can also be rebutted by evidence that shows that the gift was conditional on certain events occurring, such as the child reaching a certain age or getting married.
John claimed that his daughter held 25% of the Land on resulting trust for him because he contributed 25% of the purchase price. He also claimed that there was a common-intention constructive trust as to another 75% based on a common understanding between him and his daughter arising from his contributions to the discharge of mortgage in favour of NAB and the maintenance of the Land.
The primary judge rejected these claims, finding that John had failed to rebut the presumption of advancement and that the Land was not held on resulting trust for John. Her Honour was critical of John’s evidence and noted that much of his documentary evidence post-dated the purchase by a number of years and did not shed light on the intention of the parties at the time of the purchase.
John appealed from that decision, relying on further sets of documents – a rental agreement and insurance documents concerning the Land. The documents contained John’s name as contact details, which he argued supported his contention that he had a beneficial interest in the Land.
The appeal was dismissed as the further documentary evidence did not assist John’s case.
The case highlights the importance of documenting any financial arrangements between family members at the time they are entered into, to minimise risk of disputes later on. It also emphasises that it is important to seek legal advice before entering into any financial arrangements with family members.
Parents who are considering providing financial assistance to their children to purchase a home need to consider the legal implications of whether their financial contribution is characterised as a loan or a gift. The intentions of the parties at the time the transaction is entered into will be critically important. These intentions can be documented through properly drafted agreements, so any such arrangements with family members should always be put in writing..
Further Information and Contact Details
Should you wish to discuss any aspect of this article or want any legal advice about these matters, please contact any member of the Property team on 8251 7777.
This publication is produced by Pigott Stinson. It is intended to provide general information only. The contents of this publication do not constitute legal advice and should not be relied upon as legal advice. Formal legal advice should be sought from us in respect of the matters set out in this publication. Liability limited by a scheme approved under Professional Standards Legislation.