Joiner v The Trustee for the Warren John Dunell Trust
[2022] QSC 245
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- Unreported Judgment
- Joiner v The Trustee for the Warren John Dunell Trust[2022] QSC 245
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Joiner v The Trustee for the Warren John Dunell Trust[2022] QSC 245
Joiner v The Trustee for the Warren John Dunell Trust[2022] QSC 245
SUPREME COURT OF QUEENSLAND
CITATION: | Joiner & Anor v The Trustee for the Warren John Dunell Trust [2022] QSC 245 |
PARTIES: | MATTHEW JOINER AND DARRYL KIRK AS STATUTORY TRUSTEES FOR SALE (applicants) v THE TRUSTEE FOR THE WARREN JOHN DUNELL TRUST ABN 72 783 308 505 (first respondent) AND MARIA ELENA DUNELL (second respondent) AND WARREN JOHN DUNELL, A BANKRUPT (third respondent) AND FRANK LO PILATO AS TRUSTEE FOR THE BANKRUPT ESTATE OF WARREN JOHN DUNELL (fourth respondent) |
FILE NO/S: | BS 6209/22 |
DIVISION: | Trial Division |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 11 November 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 August 2022 |
JUDGE: | Kelly J |
ORDER: |
|
CATCHWORDS: | EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – TRUSTS FOR AND POWERS OF SALE – OTHER CASES – where the first respondent purported to be an entity described as a trustee – where the first respondent applied for orders distributing proceeds of sale of a property in proportions between himself and the third respondent – where the first respondent alleged that their share of the property, along with the rest of their assets, were transferred into a trust of which the first respondent was purportedly trustee – where the first respondent further alleged that the transfer was recorded in a security agreement – whether a trust was created – whether a security was created – whether the proceeds of the sale should be distributed in the proportions contended for by the first respondent Property Law Act 1974 (Qld), s. 38, s. 37A, s. 59, s. 11 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, cited Blatch v Archer (1774) 1 Cowp 63, cited Kauter v Hilton (1953) 90 CLR 86; [1953] HCA 95, cited McPhail v Doulton [1971] AC 424, cited Muschinski v Dodds (1985) 160 CLR 583, cited Muller v Zielonkowsky [2006] QSC 265, cited Quintis Ltd (Subject to Deed of Company Arrangement) v Certain Underwriters at Lloyd’s (2021) 385 ALR 639, cited Re Fettel (1952) 52 SR (NSW) 221, cited Re Wlodarczyk [2000] 2 Qd R 216, cited |
COUNSEL: | “Warren John And Dunell” for the first respondent B Wacker for the fourth respondent |
SOLICITORS: | The first respondent appeared on his own behalf Piper Alderman for the fourth respondent |
Introductory matters and background
- [1]This is an application by the first respondent, described as “the Trustee for the Warren John Dunell Trust”, seeking orders in respect of the distribution of proceeds from the sale of real property. A person claiming to be the trustee appeared in person and announced his appearance as “Warren John And Dunell”.
- [2]The third respondent, Warren John Dunell (“Mr Dunell”) and his wife, the second respondent (“Mrs Dunell”), were registered owners, as joint tenants, of land situated at 8 North Aston Court, Bray Park (“the Property”).
- [3]On 17 October 2018, Mr Dunell became bankrupt. He remains an undischarged bankrupt. The fourth respondent is the trustee of his estate in bankruptcy (“the Trustee”). On 3 May 2019, the Trustee caused Mr Dunell’s interest in the Property to be transmitted to him. On 18 December 2020, the Trustee filed an application in the District Court of Queensland seeking the appointment of a statutory trustee for the sale of the property pursuant to s. 38 of the Property Law Act 1974 (Qld) (“the Act”). On 23 February 2021, Rosengren DCJ made an order appointing the applicants as statutory trustees for the sale of the Property.
- [4]The applicants thereafter entered a contract of sale in respect of the Property. Prior to settlement, a caveat was lodged and the caveator was identified as the first respondent.
- [5]On 2 June 2022, I ordered that the caveat be removed. I made further orders directed to how the applicants were to apply the proceeds of sale. Relevantly, if the first respondent or Mrs Dunell claimed an interest in the proceeds, the proceeds were not to be paid out without the agreement of the parties or further order of the Court. On 4 July 2022, the first respondent filed an application. On 15 July 2022, Bradley J dismissed parts of that application and, in respect of what remained, made directions for the filing of points of claim and points of defence and for the delivery of evidence.
- [6]As to what now remains of the application filed 4 July 2022, the first respondent applies for an order, it would appear pursuant to s. 38(6) of the Act, to alter the statutory trusts so that the balance of the proceeds of the sale of the Property be distributed:
- (a)as to 30% - to Mrs Dunell; and
- (b)as to 70% - to the first respondent.
- [7]Three grounds are apparently advanced in favour of that order.
- [8]First, the person who announced his appearance as “Warren John And Dunell” claims to be the trustee of a trust known as the “Warren John Dunell Trust”. The purported trust is said to have been created by a document headed “Declaration of Trust of Warren John Dunell Trust – A Pure Trust Organization dated 24 July 2016” (“the Purported Trust Document”). The contention is made that Mr Dunell’s interest in the Property was “transferred” to that trust.[1]
- [9]Second, that by a Security Agreement dated 30 July 2016 (“the Security Document”), the “transfer” to the trust was “recorded”.[2]
- [10]Third, that the “financial contribution split” of Mr and Mrs Dunell is such that the trust has an entitlement to 70% of the net proceeds from the sale.[3]
The Court’s power to alter the statutory trust
- [11]Section 38 of the Act provides:
“38 Statutory trusts for sale or partition of property held in co-ownership
- (1)Where any property (other than chattels personal) is held in co-ownership the court may, on the application of any 1 or more of the co-owners, and despite any other Act, appoint trustees of the property and vest the same in such trustees, subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition.
…
(3A) On such appointment under subsection (3), the property shall, subject to the Trusts Act 1973, section 90, vest in the trustees.
…
(6) In relation to the sale or partition of property held in co-ownership, the court may alter such statutory trusts, and the trusts so altered shall be deemed to be the statutory trust in relation to that property.
(6A) Without limiting the power of the court so to alter the statutory trusts, the court shall, unless for good reason the court otherwise directs, so alter the statutory trusts as to provide in the case of the statutory trust for partition that—
- (a)any encumbrance which, prior to the appointment of the trustees, affected any undivided share shall continue to extend and apply to any such share; and
- (b)any mortgage created for raising equality money shall rank in priority after any such encumbrance.”
- [12]Section 37A of the Act provides:
“37A Property held on statutory trust for sale
Property held upon the statutory trust for sale shall be held upon trust to sell the same and to stand possessed of the net proceeds of sale, after payment of costs and expenses, and of the net income until sale after payment of costs, expenses, and outgoings, and in the case of land of rates, taxes, costs of insurance, repairs properly payable out of income, and other outgoings upon such trusts, and subject to such powers and provisions as may be requisite for giving effect to the rights of the co-owners.”
- [13]
“The usual purpose of an application under s 38 of the PLA for appointment of statutory trustees for sale is to enable the subject property to be vested in the trustees for sale who then proceed to sell that property and divide the net proceeds between the owners in the proportions which reflect their beneficial entitlements. Property which is owned by persons beneficially as joint tenants can expect the net proceeds to be divided equally amongst each of the owners.”
- [14]
The Purported Trust Document and the Security Document
- [15]At the outset, it can be observed that the Purported Trust Document and the Security Document contain language that is variously unclear, uncommercial and difficult to understand. The Purported Trust Document and the Security Document are redolent of humbug and have all the hallmarks of bogus transactions.[7]
- [16]The Purported Trust Document was generously described by the Trustee’s written submissions as “peculiar”. It purports to be a “contract and declaration” between the “Settlor” and the “Exchanger” (neither of whom is identified).[8] It apparently was meant to “create an organization… commonly known as a Pure Trust Organization or Unincorporated Business Organization” to which the “Exchanger herein agrees to the exchange, in trade, good and valuable consideration for certificates of the newly created organization…”.[9]
- [17]In Kauter v Hilton,[10] the joint judgment referred to “the established rule that in order to constitute a trust the intention to do so must be clear and … it must also be clear what property is subject to the trust and reasonably certain who are the beneficiaries.” The onus of proving the requisite intention rests on the first respondent, as the person alleging the existence of the trust.[11]
- [18]
“PURPOSE AND INTENT OF THIS AGREEMENT:
This contract with trust provisions is intended to create a common law contractual company (also known as an Unincorporated Business Organization) for receiving, conveying or holding property in fee simple…for the benefit of certificate holders. Trustees shall hold both legal and equitable title to the trust estate…”
- [19]There is no clear intention, expressed on the face of the Trust Document, that the trustees are to hold the trust property on trust for another person. To the contrary, the trustees are apparently to hold both the “legal and equitable title” to the property.[14] Elsewhere the Purported Trust Document provides that the property is to be transferred to the “organization” or its appointed Trustee for “an equal-in-value exchange”.[15] That language is consistent with the property being transferred beneficially to the organization or trustee.
- [20]There is also no certainty as to the property the subject of the trust.
- [21]The Purported Trust Document relevantly provides:[16]
“CONSIDERATION:
a) Exchanger herein agrees to bargain, exchange, assign, convey and deliver to this organization or its appointed Trustee, a promissory note payable upon demand, for ten dollars denominated in Australian 1 Dollar Silver coins…in exchange for 005 certificate(s) evidencing a right of distribution as promised by Settlor.
…
c) This initial exchange, a description of the consideration, whether personal and/or real property, and the number of certificates issued, shall be documented in the minutes of the organization.
…
ADMINISTERED AS TRUST ESTATE
…
d) All assets belonging to the trust estate shall be listed on Attachment sheet WJD-270584-AS or an addendum to Attachment sheet WJD-270584-AS, and administered as provided herein.
- [22]The Purported Trust Document does not declare a trust over identifiable property but rather the “initial exchange” is to be “documented in the minutes of the organization”. The evidence before me did not include any “minutes of the organization” or “Attachment sheet” or “addendum”.
- [23]Finally, there is no certainty as to who are meant to be the beneficiaries of the trust. The Purported Trust Document provides that the “Exchanger” is to receive “certificates” which “evidenc[e] a right of distribution as promised by [the] Settlor”.[17] That language might suggest that the “Exchanger” is a beneficiary however it is the Exchanger that “relinquishes all rights to the property exchanged into this organization”.[18] That language would suggest that the “Exchanger” is the settlor. The “Right to Distribution” provides for the trustee to issue “twenty… certificate units” or “TCUs” which “represent… 100% of the rights to distribution from the organization’s trust estate”.[19] The Settlor may own “TCUs” making it both a beneficiary and settlor. If the beneficial interests in the trust were meant to be fixed, all the beneficiaries must be ascertainable.[20] The twenty holders of TCUs (or beneficiaries generally) are not ascertainable. The Purported Trust Document then speaks of the trustees having “discretionary powers to make distributions from this organization without regard to equality of certificate holders…”[21] The “certificate holders” are not identified.
- [24]I accept the Trustee’s submission that the Purported Trust Document does not meet the three certainties required to create a trust. I find that the Purported Trust Document did not create a trust.
- [25]The Security Document identifies the “Warren John Dunell Trust” as the debtor and “Warren-John: Dunell” as the “Trustee/Secured Party”.[22]
- [26]The Security Document provides:[23]
“For valuable consideration, Debtor (a) grants Trustee/Secured Party a security interest in Collateral described herein below for the purpose of securing the indebtedness…
…
This Security Agreement secures the following:
- (a)Obligation of Debtor in favour of the Trustee/Secured Party as set forth in the express, written Private Agreement WJD-270584-PA; amount of said obligation: Ten Billion Australian Dollars ($10,000,000,000)…” (emphasis in original)
- [27]The “Private Agreement” is not in evidence.[24]. The Security Agreement defines the first respondent as the debtor. The secured party is defined as Mr Dunell, the undischarged bankrupt. To the extent the Security Agreement secures any moneys, it apparently secures moneys in favour of the undischarged bankrupt. That is, the first respondent apparently owes the undischarged bankrupt $10 billion. There is no evidence of any advance of $10 billion.
- [28]I find that the Security Agreement does not establish any transfer of, or security interest in, the Property in favour of the first respondent.
Consideration of the first respondent’s contentions
An alleged transfer of the Property to the first respondent
- [29]It is alleged that, on 24 July 2016, “the Warren John Dunell Trust … came into effect and the Third Respondent’s share of [the Property], along with the rest of his assets at that time, was transferred to it”.[25]
- [30]For the reasons I have already provided, I do not accept that any trust came into effect and the evidence does not establish that there was any transfer of the Property to the first respondent.
- [31]There is an additional matter to note. Section 59 of the Act provides:
“59 Contracts for sale etc. of land to be in writing
No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised.”
- [32]“Disposition” is defined in Schedule 4 (Dictionary) to the Act as including “a conveyance, vesting instrument, declaration of trust, disclaimer, release and every other assurance of property by an instrument except a will…”[26]
- [33]Section 11 of the Act provides:
“11Instruments required to be in writing
- (1)Subject to this Act with respect to the creation of interests in land by parol—
- (a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent lawfully authorised in writing, or by will, or by operation of law; and
- (b)a declaration of trust respecting any land must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will; and
- (c)a disposition of an equitable interest or trust subsisting at the time of the disposition, must be manifested and proved by some writing signed by the person disposing of the same, or by the person’s agent lawfully authorised in writing, or by will.”
- [34]There is no written memorandum or contract in evidence which would satisfy the requirements of ss. 11 or 59 of the Act. The Purported Trust Document does not satisfy the requirements of ss. 11 and 59 because it does not identify either the trustee (as the trustee was apparently to be appointed at some subsequent time)[27] or the Property (as the property was to be identified in some later minutes or addendum). The Purported Trust Document is not a declaration of trust over the Property because the settlor of the trust was apparently a person other than Mr Dunell. The settlor is not named, but appears to be a person other than Mr Dunell, who resided at a different address.[28]
An alleged security interest over the property
- [35]It is alleged that “the transfer was then recorded in [the Security Agreement] …”[29] For the reasons I have already provided, the Security Document did not “transfer” or otherwise create a security interest over the Property in favour of the first respondent.
An alleged constructive trust
- [36]It is alleged that Mr and Mrs Dunell “have always shared the financial responsibilities in their marriage” as to approximately 70% by Mr Dunell and 30% by Mrs Dunell.[30] The Trustee submitted that, although not pleaded as such, this allegation was potentially made in support of a constructive trust. I will deal with the allegation on that basis.
- [37]
“…the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do…”
- [38]
“In this situation it is proper to regard the arrangement for the pooling of earnings as one which was designed to ensure that their earnings would be expended for the purposes of their joint relationship and for their mutual security and benefit. To the extent which the pooled funds were the source of payment of mortgage instalments by the appellant, the pooled funds contributed not only to present accommodation expenses but also to the security of the parties' accommodation in the future. In this context it would be unreal and artificial to say that the respondent intended to make a gift to the appellant of so much of her earnings as were applied in payment or mortgage instalments. There is no evidence which would sustain a finding that the respondent intended to make a gift to the appellant in this way.”
- [39]
“So far as the allegation of constructive trust by reason of additional monetary contributions made by the appellant is concerned, there is no evidence to suggest that rights such as those discussed in Baumgartner v. Baumgartner arose. Prima facie the allegations of the appellant in this regard, taken at their highest, tend to establish that she made advances towards the cost of the building which were not repaid, and that she made overpayments of outgoings as co-owner as to which a right of contribution may exist against the other co-owner. They do not show that the parties were in such a relationship or had dealings such as would create equitable interests in the land according to the quantum of financial or other contributions.”
- [40]The first respondent appears to contend that Mr Dunell, at least prior to the alleged creation of the purported trust, paid a greater proportion of the home loan repayments to ANZ than Mrs Dunell.[37] It is apparently suggested that any interest of Mr Dunell as a beneficiary under a constructive trust was transferred to the first respondent.[38] For the reasons I have already provided there was no transfer to the first respondent.
- [41]It has also not been established by cogent or reliable evidence that Mr Dunell and/or the first respondent paid anything like 70% of the expenses of maintaining the Property. In this regard, I make the following observations:
- (a)
- (b)Mrs Dunell affirmed an affidavit on 6 August 2022 which materially stated:[41]
“I confirm that throughout my marriage with [Mr Dunell] we have always shared the costs of living and raising our family as follows:
- I was responsible for the groceries and day to day living expenses for myself;
- My husband was responsible for all mortgage payments, household expenses such as rates, water, electricity, investments, credit card payments and day to day living expenses for himself; and
- Expenses for our family were shared between us”
- (c)Beyond this bare assertion, the first respondent has not adduced evidence of the payments made by Mr Dunell or the first respondent towards the purchase or maintenance of the Property. The failure by the first respondent to adduce such evidence gives rise to the application of the rule in Blatch v Archer.[42] That rule was recently explained by Lee J in Quintis Ltd (Subject to Deed of Company Arrangement) v Certain Underwriters at Lloyd’s:[43]
- (c)
“In Blatch v Archer, Lord Mansfield (at Cowp 65) famously remarked that ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’ Such a maxim is reflective of the problem that in deciding issues of fact on the civil standard of proof, the Court is concerned not just with the question of probabilities on the limited material available, but also whether that limited material is an appropriate basis on which to reach a reasonable decision: Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 (Powell) (at [14] per Hodgson JA, with whom Beazley JA agreed). Considering the latter of these propositions, Hodgson JA stated (at [15]) that ‘it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so’.”
- [42]The Trustee adduced evidence of the bank statements for the ANZ loan to Mr and Mrs Dunell and an account in the name of “Warren John Dunell and Kim Craig Allen ATF Warren John Dunell Trust” (“the WJD Trust Account”) from which some payments were made into the ANZ loan.[44] Those bank statements evidence that:
- (a)the loan from ANZ was drawn down in April 2013 in the amount of $440,000;[45]
- (b)between April 2013 and October 2018 (inclusive) (save for one payment):
- (i)
- (ii)a further 25 loan repayments were made in the total amount of approximately $58,300[50] from an unidentified account, but not an account apparently in the name of the trust; and
- (iii)no repayments were made by the first respondent;
- (c)one payment of $2300 was made from the WJD Trust Account towards the repayment of the ANZ loan in September 2017, and no further payment was made from that account until October 2018;
- (d)between October 2018 and November 2019 (when the last repayment was made) 15 loan repayments were made from the WJD Trust Account in the amount of $30,240; and
- (e)the total indebtedness of Mr and Mrs Dunell to ANZ increased between October 2018 and November 2021 from $395,228 to $399,315.
- [43]ANZ was paid $417,123 from the proceeds of the sale of the Property.[51] The indebtedness of Mr and Mrs Dunell to ANZ apparently increased by over $20,000 from the time of the first payment from the WJD Trust Account.
- [44]The basis on which the payments were made from the WJD Trust Account was not explained in the evidence. The evidence did not establish that the parties were ever in such a relationship or had dealings of such a character, nature and extent as to create the alleged equitable interest in the property in favour of Mr Dunell which was said to have been transferred to the first respondent.
- [45]I am not satisfied that any basis has been established for the making of the order sought.
Orders
- The application filed 4 July 2022 is dismissed.
- I will hear the parties as to costs.
Footnotes
[1] Points of Claim filed 1 August 2022 (CFI 18) (“Points of Claim”), [22].
[2] Points of Claim, [23].
[3] Points of Claim, [25]-[29].
[4] [2006] QSC 265 [23].
[5] (1952) 52 SR (NSW) 221, 228; cited with approval in Boyd v Thorn (2017) 96 NSWLR 390, 401 [46] (MacFarlan JA).
[6] Section 66F(2)(a) of the Conveyancing Act 1919 (NSW)
[7] By way of analogy refer to Simms v The Law Society [2005] EWHC 408 [89].
[8] Affidavit of M Herrett filed 17 August 2022 (CFI 25) (“First Herrett Affidavit”), Ex MMH-2, 78.
[9] First Herrett Affidavit, Ex MMH-2, 78.
[10] (1953) 90 CLR 86, 97 (Dixon CJ, Williams and Fullagar JJ), cited with approval in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588, 608 [42] (Gaudron, McHugh, Gummow and Hayne JJ).
[11] Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72 [45] (Hodgson JA).
[12] The test is an objective one: Byrnes v Kendle (2011) 243 CLR 253, 274 [55]-[56], 275 [59], 277 [65] (Gummow and Hayne JJ).
[13] First Herrett Affidavit, Ex MMH-2, 83.
[14] First Herrett Affidavit, Ex MMH-2, 80, 83.
[15] First Herrett Affidavit, Ex MMH-2, 78.
[16] First Herrett Affidavit, Ex MMH-2, 78.
[17] First Herrett Affidavit, Ex MMH-2, 78.
[18] First Herrett Affidavit, Ex MMH-2, 78.
[19] First Herrett Affidavit, Ex MMH-2, 82.
[20] McPhail v Doulton [1971] AC 424, 453-4.
[21] First Herrett Affidavit, Ex MMH-2, 82.
[22] First Herrett Affidavit, Ex MMH-2, 86.
[23] First Herrett Affidavit, Ex MMH-2, 86.
[24] The Private Agreement is said to be numbered “WJD-270584-PA” whereas the Trust Document is numbered "WJD-270584-DT" and the Security Agreement is “WJD-270584-SA”.
[25] Points of Claim, [22].
[26] Property Law Act 1974 (Qld) sch 6.
[27] First Herrett Affidavit, Ex MMH-2, 78, 79.
[28] First Herrett Affidavit, Ex MMH-2, 85.
[29] Points of Claim, [23].
[30] Points of Claim, [25]-[26].
[31] (1985) 160 CLR 583, 618-620.
[32] Ibid 620.
[33] (1987) 164 CLR 137, 149.
[34] [2000] 2 Qd R 216.
[35] McMurdo P, Davies JA and Thomas JA
[36] [2000] 2 Qd R 216, 220 [18].
[37] Points of Claim, [26].
[38] Points of Claim, [28].
[39] Muschinski v Dodds (1985) 160 CLR 583, 620.
[40] Baumgartner v Baumgartner (1987) 164 CLR 137, 149.
[41] Affidavit of M Dunell filed 9 August 2022 (CFI 19) [5].
[42] (1774) 1 Cowp 63; 98 ER 969.
[43] (2021) 385 ALR 639, 702 [252].
[44] First Herrett Affidavit, ex MMH-2, 96-225; Affidavit of M Herrett filed by leave on 31 August 2022 (“Second Herrett Affidavit”) Ex MMH-3, 4-33.
[45] Second Herrett Affidavit, Ex MMH-3, 4.
[46] The Trustee submitted that in the period, 28 loan repayments were made. This appears incorrect by reference to the bank statements: Second Herrett Affidavit, Ex MMH-3, 4-27.
[47] Including one loan drawdown fee payment on 2 April 2013: Second Herrett Affidavit, Ex MMH-3, 4.
[48] The Trustee submitted that in the period, the payments totalled $68,160. This appears incorrect by reference to the bank statements: Second Herrett Affidavit, Ex MMH-3, 4-26.
[49] A further payment of $1107.37 was made on 5 July 2016 by an account referred to on the bank statements as ‘BOQ Dunweld’: Second Herrett Affidavit, Ex MMH-3, 17.
[50] The Trustee submitted that in the period, the payments totalled $58,900. This appears incorrect by reference to the bank statements: Second Herrett Affidavit, Ex MMH-3, 4-26.
[51] First Herrett Affidavit, [21].