presumption only applies when the provider of the monies acts as a purchaser or

Presumption only applies when the provider of the

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presumption only applies when the providerof the monies acts as a purchaser or directsthat the purchase take placeContributions to the purchase ofpropertyIn cases where the purchase money isprovided by two or more parties jointly, andthe property is put into the name of one ofthe parties, equity will presume a resultingtrust in favour of the other party or partiesContributions to the purchase ofpropertyNeilson v Letch (No 2)[2006] NSWCA 254,Mason P at [25]:Where two or more persons have contributed thepurchase money in unequal shares and the propertyis purchasedin joint names, there is, inthe absenceof a relationshipthatgives rise toa presumptionofadvancement, a presumption that the property isheld by the purchasers intrust for themselves astenants in commonin the proportions in whichtheycontributed the purchase money
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4/20/1812BuffreyvBuffrey[2006]NSWSC1349Buffrey v Buffreyat [14], Palmer J said:[I]f the presumption of resulting trust ariseswhere the joint tenants have made unequalcontributions to the acquisition cost:(a)the presumption may be rebutted byevidence showing that the common intentionof the parties at the time of acquisition wasfor equality of interests despite inequality ofcontributions; …BuffreyvBuffrey[2006]NSWSC1349(b)evidence of the subjective anduncommunicated intention of one of the partiesis inadmissible as going to prove the commonintention;(c)the common intention of the parties may beascertained from the evidence as to theircontemporaneous communicated statements ofintention, subsequent admissions againstinterest, subsequent mutual dealings with theproperty, and from evidence as to other relevantsurrounding circumstances.Contributions to the purchase ofpropertyFor the presumption of resulting trust to arise,contributions that are made by the partiesmust go towards the purchase price of theproperty. Importantly, equity determines thisby looking at what was provided by the partiesat thedate of purchase
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4/20/1813Contributions to the purchase ofpropertySeveral types of contribution can be recognisedas contributions to purchase price. Obviously,direct payment of money towards purchase willbe included, as will be legal fees, stamp duty andincidental costs associated with the costs ofacquisitionLegalfees?InSivritasvSivritas[2008] VSC 374, Kyrou J opinedthatlegal costsshould only be accountedorif they were anecessary condition of obtaining registered ownershipof the property. Kyrou J, at [126], said:On this basis, stamp duty and registration fees wouldbe included but legal fees and bank fees would not be.Although legal fees and bank fees are normallyincurred in the purchase of property, they are notalways incurred, and where they are incurred, theiramounts may vary significantly depending on thepurchaser’s circumstances and, more importantly, theymay be incurred as debts that are paid after theregistration of the interest which is to be held on trust.
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