Bosanac v. Commissioner of Taxation & Anor

Lower Court Judgment

31/08/2021 Federal Court of Australia (Kenny, Davies and Thawley JJ)

[2021] FCAFC 158

[2022] FCAFC 5

Catchwords

Equity – Presumption of advancement – Beneficial ownership – Matrimonial home – Where Mr and Ms Bosanac ("Bosanacs") married in 1998 – Where Ms Bosanac offered to purchase matrimonial home for $4.5 million ("Property") – Where  Bosanacs applied for two joint loans for $3.5 million and $1 million with inferred purpose to purchase Property – Where Property transferred into sole name of Ms Bosanac – Where Commissioner applied for declaration that Ms Bosanac held 50% of her interest in Property on trust for Mr Bosanac – Where primary judge held presumption of advancement was not rebutted – Where Full Court relied on fact Mr Bosanac borrowed money with Ms Bosanac to purchase Property to found rebuttal of presumption of advancement – Where Full Court relied on statement in The Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278, quoting Professor Scott, that where husband and wife purchase matrimonial home, each contributing to purchase price and title is taken by one spouse, it be inferred that it was intended that each spouse should have one-half interest, regardless of amounts contributed – Whether rebuttal of presumption of advancement, applying to purchase by spouses of matrimonial home, can be founded on same facts giving rise to presumption of advancement – Whether, in considering whether presumption of advancement rebutted, court should consider spouses' intentions or any joint intention – Proper approach to rebuttal of presumption of advancement.