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Duelling presumptions trumped by objective facts

4 min read
15 November 2022

Key Takeaways

  • The Commissioner of Taxation sought orders that a husband had a half interest in a property owned solely by his wife, on the basis that the presumption of resulting trust applied and the presumption of advancement did not apply.
  • The Commissioner was unsuccessful at first instance in the Federal Court, then successful on appeal in the Full Court of the Federal Court.
  • The High Court ultimately determined that the objective facts revealed the intention of the husband and wife was that the husband would not obtain any interest in the property, without the need to resort to the application of either of the “duelling presumptions” of advancement and resulting trust.


In 2006 Ms Bosanac purchased a residential property which became the marital home of her and Mr Bosanac. The property was registered in Ms Bosanac’s name only. The purchase money was paid from funds provided by Mr & Ms Bosanac jointly and loans obtained by them jointly. The loans were secured over the property and also other properties owned by each of Mr & Ms Bosanac in their individual names. 

In 2016, the Commissioner of Taxation obtained judgment against Mr Bosanac for over $9 million plus costs. 

In order to facilitate recovery of part of the judgment sum, the Commissioner sought a declaration that Ms Bosanac held 50% of her interest in the property on trust for Mr Bosanac. That is, that Mr Bosanac had a 50% interest in the property. 

The duelling presumptions 

The basis for seeking the declaration was the “presumption of resulting trust”. A resulting trust is presumed to arise where a person (here, Mr Bosanac) contributes to the purchase price for a property that is owned by another person (here, Ms Bosanac). The effect is that a trust is taken to “result” in favour of the person that contributed to the purchase price, to the extent of the contribution. Here that is 50% as the funds were provided jointly by two people. 

The presumption can be rebutted if it is proved that there was no intention on the part of the person advancing the purchase money to obtain an interest in the property. 

Another presumption that arose for consideration in the proceeding was the “presumption of advancement”. The precise nature of the “presumption” and how it operates has been variously described over time. Relevantly, it applies where a husband contributes purchase monies towards the acquisition of a property in the wife’s name. In that circumstance a “presumption” arises that the husband’s contribution is a gift to the wife such that the husband does not obtain any interest in the property. 

Where the presumption of advancement arises, it rebuts the presumption of resulting trust. 

The previous decisions 

The primary judge in the Federal Court found that the evidence did not support an inference that Mr Bosanac intended to have an interest in the property. Accordingly, the presumption of advancement was unrebutted, and that rebutted the presumption of resulting trust. 

On appeal, the Full Court of the Federal Court found that the evidence did support an inference that Mr Bosanac intended to have an interest in the property. Accordingly, the presumption of advancement was rebutted, and the presumption of resulting trust applied. 

The High Court’s decisions 

Ultimately the High Court found that the evidence supported an inference that the parties objectively intended Ms Bosanac to be the sole beneficial owner of the property. Consequently, there was no need to resort to either of the presumptions to determine the outcome. The appeal was allowed, with the first instance decision of the Federal Court standing.  

There was no direct evidence from either Mr or Ms Bosanac as to their intention. In this case it was a question of what inference could be drawn from the objective facts.

There were a number of factors that lead to the High Court reaching its conclusion, including the following: 

  • There was a history of Mr and Ms Bosanac holding property in their own names;
  • Consistent with that, it was “evidently” the desire of Ms Bosanac to purchase and hold the property in her name;
  • There was a history of Mr and Ms Bosanac obtaining loans jointly to fund the acquisition of an asset by one of them, and using each other’s assets as security for such loans;
  • Ms Bosanac was the “moving party” for the transaction; and
  • Mr Bosanac was a sophisticated businessman who must have appreciated the significance of the property being held in Ms Bosanac’s name.

The Commissioner also sought to have the presumption of advancement abolished. The Court declined to do so. Gageler J considered that “the weight of history is too great for a redesign of that magnitude now to be undertaken judicially”. Kiefel CJ, Gleeson, Gordon and Edelman JJ also observed that the presumption is a ”landmark”. 


The key takeaway from the High Court’s decision is that the main focus should be to ascertain the objective intention of the parties that is borne out of the objective facts from evidence led by the plaintiff. Depending on what that objective intention is, there may be no need to resort to applying either presumption.

If you would like advice around corporate & commercial property arrangements, please contact me at or 07 3220 1144.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

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