Buchan v Young

DISTRICT COURT OF QUEENSLAND

CITATION:	Buchan v Young & Anor [2020] QDC 216
PARTIES:	PAULINE ANN BUCHAN (plaintiff) v GARY PAUL YOUNG (first defendant) and KIM LOUISE YOUNG (second defendant)
FILE NO/S:	D 24/17
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	3 September 2020
DELIVERED AT:	Maroochydore
HEARING DATE:	18, 19, 20, 22 February 2019, 17 May 2019 (last submissions received 14 June 2019)
JUDGE:	Long SC DCJ
ORDER:	The defendants pay the plaintiff the sum of $7,757.73.1.           The defendants pay the plaintiff the sum of $209,475.84.2.           The parties are to make written submissions as to costs, such submissions not to exceed three (3) pages in length:3.           in the case of the plaintiff, by filing and serving such submissions on or before 11 September 2020; and(a)         in the case of the defendants, by filing and serving such submissions on or before 19 September 2020.(b)        177,521.90 and in the remainder beneficially for themselves.It is declared that the defendants hold their interests in the property described as Lot 8, SP 265513, Title Reference 51027121, located at 56 Kentish Road, Kiels Mountain on trust for the plaintiff beneficially as to the sum of $4.           The parties are granted liberty to apply.5.
CATCHWORDS:	EQUITY – RESTITUTION – UNJUST ENRICHMENT – Where the plaintiff organised and paid for  refurbishment costs to real property owned by the second defendant  – Whether the refurbishments were carried out with the defendants’ knowledge, authority and agreement – Whether the refurbishments conferred a quantified benefit to the defendants EQUITY – RESULTING TRUST – PRESUMPTION OF ADVANCEMENT – REBUTTING THE PRESUMPTION OF ADVANCEMENT – CONSTRUCTIVE TRUST –  Where the plaintiff advanced monies to her son and daughter-in-law (the defendants) for the purchase of real property – Whether the payments were a voluntary gift – Alternatively, whether the payments were advanced to further a joint endeavour involving mutual benefit – Whether there was a failure of a joint endeavour – Whether there is attributable blame – Whether there was a common intention of the parties as to sharing beneficial interest – Whether the defendants retention of the entire beneficial interest in the real property is unconscionable – Whether the plaintiff is estopped from claiming an interest in the real property EQUITABLE REMEDIES – Where no valuation evidence was adduced – Addressing the unconscionability of the defendants’ position – Whether to grant relief by way a declaration of constructive trust – Whether to grant relief by way of the appointment of statutory trustees for sale
LEGISLATION:	Civil Proceedings Act 2011 (Qld), s 58
CASES:	Anderson v McPherson (No 2) (2012) 8 ASTLR 321 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Baumgartner v Baumgartner (1987) 164 CLR 137 Brown v Manuel [1996] QCA 65 Calverley v Green (1984) 155 CLR 242 Charles Marshall Pty Ltd v Grimley (1956) 95 CLR 353 Commonwealth v Verwayen (1990) 170 CLR 394 Commonwealth v Verwayen (1990) 170 CLR 394 Crafter and Crafter [2011] FamCA 122 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 Grant v Edwards [1986] Ch 638 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Herrod v Johnston [2013] 2 Qd R 102 Hungerfords v Walker (1989) 171 CLR 125 Jones v Dunkel (1959) 101 CLR 298 Knox v Knox, per Young J, unreported, 16/12/1994 Legione v Hately (1983) 152 CLR 406 Macquarie Bank Ltd v Lin [2005] QSC 221 Maharaj v Chand [1986] AC 898 McKay v McKay [2008] NSWSC 177 Muschinski v Dodds (1985) 160 CLR 583 Pain v Pain & Ors [2006] QSC 335 Pascoe v Turner [1979] 1 WLR 431 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Peterson v Hottes [2012] QCA 292 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Shepherd v Doolan [2005] NSWSC 42 Sirtes v Pryor [2005] NSWSC 1082 Swettenham v Wild [2005] QCA 264 Thompson v Palmer (1933) 49 CLR 507 Turner v Dunne [1996] QCA 272 Walton Stores v Maher (1988) 164 CLR 387 Waterhouse v Powers [2003] QCA 155 West v Mead [2003] NSWSC 161
COUNSEL:	J P Mould for the plaintiff D C Fahl for the defendants
SOLICITORS:	Greenhalgh Pickard for the plaintiff Andrew Fogg Lawyers for the defendants

INDEX
Page
INTRODUCTION	5
BACKGROUND CIRCUMSTANCES	5
THE GENESIS OF THE PROCEEDINGS	8
REFURBISHMENT COSTS CLAIM	11
Issues	11
Whether the refurbishment costs were incurred with the knowledge and authority of the defendants?	12
Whether there was agreement that the defendants would reimburse the plaintiff for the refurbishment costs?	14
Whether the defendants received a benefit from the refurbishment costs incurred by the plaintiff?	17
Whether the plaintiff incurred the refurbishment costs in circumstances where they are otherwise recoverable from the defendants on any other legal basis?	20
KENTISH ROAD CLAIM	25
Issues	25
Some Principles	26
Whether there was a gift or a joint endeavour?	34
Has the relationship of the parties broken down and if so, is there attributable blame?	43
Does a resulting trust arise in the circumstances?	55
Was it intended that the plaintiff have a beneficial interest in Kentish Road?	58
Is there unconscionability in the defendant’s retention of the entire beneficial interest in Kentish Road?	61
Does an estoppel arise or operate against the plaintiff having relief?	72
Remedy	74
CONCLUSION	79

Introduction

1. By an amended claim filed with leave on 22 February 2019, the plaintiff claims:[1]

   [1]See Defendants’ Written Outline of Submissions, filed 8/4/19, at [2].

(a)        the recovery of $6,574.34 for breach of contract or debt, in respect of money expended by the plaintiff on the property 4 Langford Close, Taunton, in the United Kingdom (“the Langford Close property”) to recover possession and effect some repairs in 2014 (“Initial Expenses Claim”);

(b)        the sum of $29,196.85 in restitution, in respect of money expended by the plaintiff in 2016 on refurbishments carried out to the Langford Close property (“Refurbishment Costs Claim”);

(c)        a declaration of trust and consequential orders relating to the real property located at 56 Kentish Road, Kiels Mountain (“Kentish Road”), which, in substance, seeks recompense for money, paid by the plaintiff to the defendants and which was applied toward the purchase of Kentish Road (“Kentish Road Claim”);

(d) interest pursuant to section 58 of the Civil Proceedings Act 2011 (Qld); and

(e)        costs.  

2. By the Third Amended Defence, also filed with leave on 22 February 2019, the defendants conceded the Initial Expenses Claim,[2] and the quantum of the remaining claims is admitted.[3]

Background Circumstances

3. A good deal of the contextual or background circumstances to the disputes are not in issue. What immediately follows is a summary of those uncontroversial circumstances.[4]

   [4]Largely, as taken from concessions made by the defendants, in pleadings and written submissions.

4. The plaintiff is a retiree of advanced years.[5] She is the mother of the first defendant (“Gary Young”), and mother-in-law of the second defendant (“Kim Young”).[6] The defendants are married.[7] Prior to the circumstances which are the genesis of this proceeding, the parties had shared a generally positive relationship, including regular communication after the defendants came to Australia, particularly between the plaintiff and Mrs Young by emails, Skype calls and text messages utilising a mobile telephone application called “WhatsApp”.[8]

   [5]Second Further Amended Statement of Claim, filed 20/2/19, at [1]; Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [115]-[116].

   [6]Second Further Amended Statement of Claim, filed 20/2/19, at [1]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [1]; Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [115]-[116].

   [7]Ibid.

   [8]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(a)]; T1-29.7-15; T1-97.10-25.

5. In about 2009, Kim Young purchased the Langford Close property in the United Kingdom.[9] In 2010, the defendants came to Australia and after initially travelling,[10] settled on the Sunshine Coast in a rental property at 118 Kentish Road, Kiels Mountain.[11]

   [9]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(c)]; T3-100.15-19.

   [10]T3-100.23-24; T2-86.18-20.

   [11]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(b)] (Note: 118 Kentish Road is incorrectly stated as 116 Kentish Road).

6. In 2012 and 2014, the plaintiff travelled from the United Kingdom to stay with the defendants on the Sunshine Coast.[12] The parties shared happy and harmonious times together,[13] although the plaintiff did not have a very clear recollection of the 2012 visit.[14] During the November 2014 visit, the plaintiff expressed a desire to come to live with the defendants in Australia, which was embraced by the defendants.[15]

   [12]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(d)]; T1-98.4-33; T2-90.7-9.

   [13]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(d)]; T1-98.35-37.

   [14]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(d)]; T1-98.5-13.

   [15]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(e)-(f)]; T2-7.10-34.

7. In 2014, the plaintiff was instrumental in the removal of a defaulting tenant, recovery of rental arrears and carrying out some repairs to the Langford Close property.[16] This relates to the conceded Initial Expenses Claim for $6,574.34.

   [16]Second Further Amended Statement of Claim, filed 20/2/19, at [3]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(b)].

8. After the plaintiff had returned to the United Kingdom from her visit to Australia in November 2014, the plaintiff and the defendants, principally Kim Young, exchanged communications about the prospect of buying a property on the Sunshine Coast. The plaintiff expressed the desire to provide funds toward the purchase of a property that was considered suitable by the defendants.[17] The parties agreed to the effect that at a later time and after the death of her own mother, the plaintiff would come to live at the property to be acquired.[18] As early as March 2015, the Plaintiff was pursuing an application to relocate to Australia.[19]

   [17]Third Amended Defence, filed with leave 22/02/19, at [9(c)].

   [18]Third Amended Defence, filed with leave 22/02/19, at [9(g)]. The plaintiff’s mother passed away in December 2016: Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [54(a)(iii)], [118].

   [19]Exhibit 1, p 91; Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(h)].

9. On 26 September 2014, the plaintiff sent an email to the defendants proposing that she occupy the Langford Close property.[20] In late 2015 the plaintiff and Kim Young discussed the plaintiff’s intention to move into the Langford Close property and carry out some refurbishments.[21] The specifics of this conversation are disputed by the parties. However, it is not disputed that in January and February 2016, the plaintiff began carrying out refurbishments to the Langford Close property.[22] The plaintiff commenced residing at the Langford Close property on or about 18 February 2016[23] and did not pay any rent or fee for her occupation of the Langford Close property,[24] where she remained until it was sold.[25] The defendants acknowledged that the rent-free arrangement was tied to the fact that the plaintiff was to provide money to assist with the purchase of a property on the Sunshine Coast.[26]

   [20]Third Amended Defence at [8(a)]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(d)]; Exhibit 1, p 89.

   [21]Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(e)]; Exhibit 1, p 101.

   [22]Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(f)]; T1-36.21-22; T1-39.37.

   [23]Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(g)]; T1-34.17-25.

   [24]Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(h)]; T1-35.3-4.

   [25]Second Further Amended Statement of Claim, filed 20/2/19, at [2]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(i)]; T1-35.20-21.

   [26]Defendants’ Written Outline of Submissions, filed 8/4/19, at [34(b)]; T3-129.7-13; Exhibit 1, p 112.

10. The defendants admit that:

(a)        the plaintiff caused the work to the Langford Close property and expended the quantum claimed;[27]

[27]Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(j)].

(b)        the plaintiff undertook the refurbishments of the Langford Close property with the qualified agreement of Mrs Young;[28] and

(c)        the works carried out resulted in a “marginal benefit” to the value of the Langford Close property.[29]

11. In January 2016, the defendants contracted to purchase Kentish Road.[30] On three separate occasions, the plaintiff transferred money, in a total sum of $321,748.01 (AUD) from the United Kingdom to the defendants as follows:[31]

    [30]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(i)]; Exhibit 1, pp 14-25.

    [31]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(j)]; Exhibit 1, pp 48-60.

·           25/1/16: $20,000.00 (AUD);

·           18/3/16: $189,542.01 (AUD);

·           22/3/16: $112,206.00 (AUD).

The plaintiff received no relevant legal advice prior to the subject transactions.[32] The funds were applied to the deposit for and settlement of, the Kentish Road purchase.[33] The defendants borrowed a total of $250,518.60, which, after the deduction of fees and charges, allowed application of $248,605.60, toward the purchase of Kentish Road.[34] The purchase of Kentish Road settled on 23 March 2016,[35] with the legal title of the property registered solely in the names of the defendants.[36]

The Genesis of the Proceedings

12. About the time of the Kentish Road settlement and into April 2016, the plaintiff came to stay with the defendants for approximately three to four weeks.[37] Initially, the plaintiff resided with the defendants at their rental property at 118 Kentish Road, but during her stay moved with the defendants to the property at 56 Kentish Road (“Kentish Road”).[38] The plaintiff claims that some events during this visit led to the irretrievable break down of the relationship between the plaintiff and the defendants. The plaintiff outlines a number of instances which made her feel unwelcome,[39] but agreed that during the stay the parties still shared some enjoyable times.[40] The plaintiff described the concerning conduct to include:[41]

    [37]Second Further Amended Statement of Claim, filed 20/2/19, at [13(c)]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(n)], [60]; T1-79.2.

    [38]Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(n)]; T1-66.1-3; T2-108.39-40.

    [39]Amended Reply, filed 17/9/18, at [12].

    [40]T2-37.14-18.

    [41]Amended Reply, filed 17/9/18, at [12]; Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [84].

(a)        a delayed greeting by Kim Young, upon the plaintiff’s arrival;[42]

[42]T1-65.22-27.

(b)        Kim Young asked the plaintiff to clean the house and chastised the plaintiff for not doing so properly;[43]

[43]T1-77.38-45.

(c)        Kim Young chastised the plaintiff for using too much water in a kettle, placing the washing-up liquid on the wrong side of the sink and not driving her vehicle correctly;[44]

[44]T1-75.34-38; T1-75.38-40; T1-77.18-36; T2-35.13-15.

(d)        the defendants informed the plaintiff that their male friend would be staying at the property and chastised the plaintiff for suggesting that she should stay in a hotel;[45]

[45]T1-76.24-28.

(e)        the defendants withdrew their customary social interaction with the plaintiff and spoke in an unfriendly way towards the plaintiff;[46]

[46]T1-75.41-45; T2-35.46-47.

(f)        an incident at a restaurant that the parties attended;[47]

[47]T 1-76.30-34.

(g)        Kim Young falsely accused the plaintiff of defaming the defendants to her friends;[48]

[48]T1-77.10-11.

(h)        the defendants failed to have photos of the plaintiff displayed in the house;[49]

[49]T1-76.41-42.

(i)         the defendants were dismissive about helping the plaintiff fill out sponsorship forms pertaining to her Australian visa application;[50] and

(j)         the defendants were uncongenial in farewelling the plaintiff upon her departure.[51]

During the visit Gary Young said words to the effect of, “What do you think Mum, good investment? We’ll double our money in five years, split it and bugger off!”[52] The plaintiff points to this as something which caused her to feel concerned and “unrested”.[53] The defendants contend that this statement was a frivolous remark that did not convey any breakdown in the relationship or desire to terminate any arrangements between the parties.[54] Although the plaintiff appeared to accept in cross-examination that there was as sense of frivolity in the remark, it nevertheless remained in her mind.[55]

13. The defendants gave evidence to the effect that they were not aware of the plaintiff’s concerns, or at least their extent, and point to the fact that the plaintiff left on her scheduled departure date and continued to exchange text messages with Kim Young after her visit.[56]

    [56]Defendants’ Written Outline of Submissions, filed 8/4/19, at [79], [82(d)], [83]; Exhibit 1, pp 132-138.

14. The defendants first became aware that the plaintiff had reconsidered her intended relocation to Australia when a text message was sent to Kim Young on or about 16 May 2016.[57] Following this, various communications ensued between the plaintiff and the defendants,[58] including an email from the plaintiff on 31 May 2016, where she raised the matter of whether she would be financially reimbursed from the proposed sale of the Langford Close property.[59] It is convenient to now note that this occurred subsequently to the plaintiff’s more detailed explanation of her change of mind as to coming to live in Australia,[60] and in response to the defendants’ email to the plaintiff dated 30 May 2016 which proposed the sale of the Langford Close property.[61] Prior to the next response of the plaintiff, by email dated 6 June 2016,[62] there was an email from the defendants which included the assertion:

    “Yes, our intention has always been that we would reimburse you from the sale of Langford Close but it obviously won’t cover the whole sum now.”[63]

    [57]Third Amended Defence, filed 22/2/19, at [13(a)(ii)] and admitted at [13] of the Amended Reply, filed 17/9/18.

    [58]See Exhibit 1, pp 139-183. These are examined in detail subsequently in these reasons at [72].

    [59]Exhibit 1, p 151.

    [60]By email dated 19/5/16: Exhibit 1, p 150, which is discussed below at [78].

    [61]Exhibit 1, p 151.

    [62]Exhibit 1, p 152.

    [63]Exhibit 1, p 151.

15. On 31 October 2016 the defendants sold the Langford Close property for the sum of £200,000, of which the defendants received approximately £110,000 net proceeds.[64] On or about 1 November 2016, the defendants paid the plaintiff £90,000 ($144,226.11) from the net proceeds of sale of the Langford Close property.[65] It is to be noted that particularly given the express reference in the communication from Gary Young as to the calculation of the amount of that repayment, that he had not “included the money you spent on renovations”,[66] the parties have proceeded on that basis and that the repayment is to be taken into account in respect of the plaintiff’s claim in relation to Kentish Road.

    [64]Second Further Amended Statement of Claim, filed 20/2/19, at [18]; T1-123.43-45; T1-50.25; T1-86.24-25.

    [65]Second Further Amended Statement of Claim, filed 20/2/19, at [19] and admitted at [16(a)] of the Third Amended Defence, filed 22/2/19; T3-119.33-34.

    [66]Exhibit 1, p 166, as discussed in more detail below at [61].

16. On 24 November 2016, the plaintiff registered a caveat over the title of Kentish Road on the basis of claiming an interest pursuant to a constructive trust and/or implied or resulting trust.[67]

    [67]Second Further Amended Statement of Claim, filed 20/2/19, at [22].

Refurbishment Costs Claim

Issues

17. In relation to the Refurbishment Costs Claim, the parties identified the following issues to be determined:[68]

    [68]MFI A, at [2].

(a)        whether the refurbishment costs were incurred with the knowledge and authority of the defendants;

(b)        whether there was any agreement that the defendants would reimburse the plaintiff for the refurbishment costs;

(c)        whether the defendants received a benefit from the refurbishment costs incurred by the plaintiff; and

(d)        whether the plaintiff incurred the refurbishment costs in circumstances where they are otherwise recoverable from the defendants on any other legal basis.

18. The defendants identified the essence of the factual dispute as:[69]

    [69]Defendants’ Written Outline of Submissions, filed 8/4/19, at [11].

(a)        whether Mrs Young authorised the works to the nature and extent they were performed;

(b)        whether the works were performed by the plaintiff on the understanding that they were for her benefit, to enjoy her occupation of the Langford Close property; and

(c)        whether it was intended that the defendants receive any consequential benefit to the value of the Langford Close property by reason of the works.

Further, it is also put in issue as to whether there is any sufficiently identified legal basis for the relief sought by the plaintiff.[70]

Whether the refurbishment costs were incurred with the knowledge and authority of the defendants?

19. On the evidence, it should be concluded that the refurbishment costs were incurred with the knowledge and authority of the defendants and particularly Kim Young, as the legal owner of the property which was refurbished. It is suffice to note that the renovations to which these costs relate, were undertaken in a period immediately prior to the plaintiff coming to Australia and in the context of the ongoing discussions in respect of the purchase of real estate here. In that respect, Kim Young conceded that there were communications by Skype, most Sundays from October 2015,[71] and as the evidence demonstrated, also various forms of communication by social media. Further, each of the defendants conceded knowledge of the plaintiff undertaking the renovations.[72]

    [71]T4-9.38-43.

    [72]T3-22.40, per G Young; T4-5.39-46, per K Young.

20. Each of the defendants sought to qualify the extent to which they conceded that the plaintiff was authorised to do the renovations.[73] Their evidence reflected the same contention that the plaintiff was told not to go mad or crazy. It appears that it was the women who more generally conducted these communications by social media and the written conversations are mostly between the plaintiff and Kim Young. Because of her position as the legal owner of the Langford Close property, it is instructive to note some of the contents of such communications, as touched on this issue:

    [73]T3-22.42-45, per G Young; T3-107.39-42, per K Young.

(a)        In an email of 16 November 2015, the plaintiff wrote:

“with regard to Langford Close. I am looking forward to moving in there and seeing what I can do, if required, to make it more saleable. Obviously there will be a budget limit and I shall seek professional advice before and I do anything at all. I’d like to get as much as the going rate would be, for you!”;

(b)        In the further context that the plaintiff’s evidence was that she told the defendants that her budget to do the renovations would be £10-15 thousand pounds,[74] whereas Kim Young conceded only that the plaintiff had said she had a budget but did not “ever recall there being an actual price”,[75] the following recorded communications may be noted:

[74]T1-40.46-47.

[75]T3-107.25-30.

(i)         In WhatsApp message exchanges on 13 January 2016, which are in obvious reference to the renovations, Kim Young says:

“I just your taste, just remember it’s to sell eventually so please don’t spend too much £££”.

The response is:[76]

[76]Exhibit 1, p 117.

“No, have already set a budget and will stick to it rigidly…”

(ii)       And in a WhatsApp message identified as sent on 31 January 2016, Kim Young says:[77]

“It’s all over to you now & what you do to the place I shall leave to your discretion”.

21. It must be taken that Kim Young is authorising the plaintiff to do what she sees fit and accordingly there is difficulty with the qualification which the submissions for the defendant seeks to put on this issue, as to the nature and extent of the work which was performed.

22. It is therefore strictly unnecessary to determine whether the budgeted amount was a figure which only the plaintiff had in mind or whether that amount or budget was also communicated to either defendant. However, what is clear is that it was commonly understood that what was being done was of some substance and not just minor repairs, as it is in the context of some photographs being sent as to aspects of the work being undertaken by the plaintiff, that the communications as to not spending too much and the plaintiff’s assurance of adherence to the budget occurs.[78] And on 23 January 2016, the plaintiff’s message was:

    “Plan to move about 18 Feb. Kitchen started today, waiting on new boiler, it will be totally refurbished by the time I move in! Will take more piccies as it progresses. Looking much brighter and cleaner now though.
    Managed to get most things from B and O with my over 60s discount!”

    And the recorded response is “Excellent, nice to have it all fresh and new to move in to”.[79]

Whether there was agreement that the defendants would reimburse the plaintiff for the refurbishment costs?

23. A separate question is as to whether there was agreement that the defendants would reimburse the costs incurred by the plaintiff. The plaintiff presses for a finding that there was such agreement but immediately notes a caveat: that the claim is in restitution not contract.[80]

    [80]Plaintiff’s Written Outline of Submissions, filed 7/5/19, at [32].

24. In any event, the difficulty in so concluding lies in the looseness of the arrangements, which arrangements need to be understood in the contextual circumstances which include both an understanding that there was a joint plan in respect of the purchase of a property in Australia, at which the plaintiff would eventually come to live, and that, in the meantime, she would reside in the Langford Close property, on a “rent free” basis.

25. Neither was the plaintiff’s evidence in terms that there was any such express agreement. After being taken to the message which she took to be read as “I trust your taste, just remember it’s too sell eventually so please don’t spend too much £££”,[81] there were the following questions and answers:

    [81]Exhibit 1, p 117.

    “What did you understand when you read that in terms of who was ultimately going to bear the responsibility of the expenses that you were incurring?---Again, I was going to keep it to the minimum of what was required because I knew they didn’t want me to spend a huge amount on it, and the least I could spend the better. But, again, to recoup a good sale.
    But did that – what, if anything, did – was your understanding as to whether you would be reimbursed or not, having read that message?---I didn’t have any doubt that I wouldn’t be reimbursed. I just went along with it because that’s how we were at the time, and I just knew they were grateful for what I was doing and that I would eventually be reimbursed for it.
    Did that message have any impact upon that understanding?---It just – it just confirmed it, really, that hopefully I would reimbursed – reimbursed.
    So - - -?---Whether it was from – whether I was from the sale or not, I just gathered that I would be reimbursed. You know, I’d like to think that they were honourable people then and”.[82]

    [82]T1-42.35 – T1-43.6.

    Subsequently and when she was asked about an email sent by Gary Young on 23 June 2016 and in which he asserted “we actively tried to discourage you from spending money on the place”,[83] she said:

    “I told them what the state of the place was and that I wasn’t happy living in something that wasn’t correct, and that by spending – doing a small budget and spending money on it, it would be beneficial to them. You know, did they want to sell it for 160 or 210? You know, it’s a bit of a no brainer.”[84]

    She was then asked and answered:

    “What – what if any indications were given by the defendants to you either prior to or during the refurbishments of 4 Langford Close that you wouldn’t be reimbursed for the expenditure that you’d incurred?---It was never – never said that I wouldn’t be reimbursed.
    

    [83]Exhibit 1, p 154.

    [84]T1-47.46 – T1-48.2.

    [85]T1-48.4-12.

    Okay?---It was never. They were cautious of how much I was going to spend, obviously, because of their financial situation, and I was aware of that as well, but, as I say, there was a budget and I thought that there was a reasonable budget to spend on something that needed a lot of work.”[85]

26. As is contended for the plaintiff, her stated expectations are to be viewed in the context of a further WhatsApp exchange on 21 March 2016 and in respect of the completion of the renovations. In response to the plaintiff’s observation “a nice result after the hard work though”, Kim Young responds:

    “I’m curious to hear the valuation, fingers crossed I hope you’ll be pleased after all your hard work”.

    Then there is a further exchange, respectively between the plaintiff and Kim Young:

    “Yes I’m curious also. It’s got to be a good result, really looking good now and everything up to date...
    Hopefully enough for us to put back in to your pot & a little for ours too & let’s pray that when it happens the exchange rate will be kind to us again”.[86]

    When cross-examined as to this last response, Kim Young said:

    “No. It was to put back into her pot when we eventually came to sell the house and we would be able to give her funds from the sale of the house for her gift that she gave us towards Kiels Mountain. I was always going to give her back the – some of the money from the house when I sold it.”[87]

    [86]Exhibit 1, p 127.

    [87]T4-13.26-29.

27. The indication in the communication from Kim Young may provide some explanation for the itemized list of refurbishment expenditure which the plaintiff says she brought to Australia but only left for the defendants in the context of her departure and return to the United Kingdom.[88] Otherwise, the following exchange is to be noted in the cross-examination of the plaintiff:

    “What do you say about that?---They probably discouraged me from spending a lot of money on the place but I think I – I told them what the state of the place was and that I wasn’t happy living in something that wasn’t correct, and that by spending – doing a small budget and spending money on it, it would be beneficial to them. You know, did they want to sell it for 160 or 210? You know, it’s a bit of a no brainer.

    What – what if any indications were given by the defendants to you either prior to or during the refurbishments of 4 Langford Close that you wouldn’t be reimbursed for the expenditure that you’d incurred?---It was never – never said that I wouldn’t be reimbursed.

    Okay?---It was never. They were cautious of how much I was going to spend, obviously, because of their financial situation, and I was aware of that as well, but, as I say, there was a budget and I thought that there was a reasonable budget to spend on something that needed a lot of work.”[89]

    [88]This is referred to in more detail, below at [63].

    [89]T1-47.45 – T1-48.12.

28. In this entire context, it is unsurprising that the plaintiff’s claim is not in contract and the evidence does not even sufficiently support there being an implied agreement as to repayment. Further and whilst the evidence as to an intention of Kim Young to make some repayment to the plaintiff upon the sale of the property may be relevant to the further issues to be addressed in respect of the relief sought by the plaintiff, it is to be also noted that, as contended for the defendants, the consideration of those issues is complicated by the overlap of the arrangements in respect of the joint venture in Australia and the inclusion in the arrangements of the benefit to the plaintiff of her accommodation in the Langford Close property in the meantime.  In fact, the plaintiff did reside there from the completion of the renovations in February 2015, until the Langford Close property was sold in October 2015.

Whether the defendants received a benefit from the refurbishment costs incurred by the plaintiff?

29. There is difficulty with the attempts of the defendants to contend that the renovations were completed, or almost entirely completed, for the benefit of the plaintiff and her residence at the Langford Close property. The evidence is that the defendants had not personally inspected the Langford Close property since 2009.[90] Their reliance on reports to them from a tenant and a real estate agent (in about October 2015) which did not identify any issues requiring attention, is correctly pointed out to be no more than evidence that no particular problem had been previously brought to their attention.[91]

    [90]T3-25.30-31, per G Young; T4-6.1-3, per K Young.

    [91]Although there are broader criticisms of, particularly the real estate agent’s report in the plaintiff’s Written Outline of Submissions (at [20]), it is unnecessary to dwell on them to the extent to which they go beyond the weight to be given to such evidence. Some of the criticisms appear to be directed at the admissibility of the evidence, to which no objection was taken and there is no elaboration of what the contention “invoking a Jones v Dunkel inference” might entail.

30. The plaintiff sought to explain that she “only did what was necessary”,[92] and in respect of some particular expenditure, as follows:

    [92]T1-114.46-47.

(a)        “… a new kitchen put there because when I went to clean and look at the kitchen, the bottom cupboards were rotten and rotting. If I’d have lent on them they would have collapsed because of the state of them. So it was in ill repair and it needed – it required bringing up to standard - - - Which page – which page number - - -?--- - - - to be able to live in it.”;[93]

[93]T1-36.34-40.

(b)        “Was there anything wrong with the tiles in the kitchen and the bathroom?---Well, the kitchen tiles were starting to come off because of the damp that was behind the cupboards on all the walls. The upstairs bathroom was just old and tired”;[94]

[94]T1-37.9-11.

(c)        in respect of a glass splashback for the cooker she said:

“Okay. Why was that - - -?---Which, again, I needed something there to conform to  regulations.”[95]

[95]T1-37.24-25.

(d)        locks on doors were replaced “Because there was no keys for any of the locks on the existing doors. They were damaged”;[96]

[96]T1-37.32-33.

(e)        there was need to replace some malfunctioning lighting;[97] and

[97]T1-118.40 – T1-119.2.

(f)        in respect of the replacement of the boiler (which contributed just less than one-third of the claimed costs) when asked about a report that this was working efficiently after an overhaul in September 2014, she was asked and responded:

“So there appear to be no problem with the boiler some 18 months before you saw fit to have the boiler ripped out completely?---You’ve just said, “18 months.” In 18 months, a boiler can deteriorate rapidly. This was on its last legs. The emissions from the boiler were not acceptable. It was rusty, and, you know, within 18 months it had deteriorate – after constant – it had deteriorated further.”[98]

31. However there is also difficulty as any actual identification or quantification of what the defendants received as benefit from the refurbishment costs or more particularly the refurbishments or renovations to which such costs related. There was concession that there may have been a “marginal benefit” from the work undertaken by the plaintiff,[99] and Gary Young explained this in terms of admitting that a profit was made on the sale of the Langford Close property,[100] and that:

    [99]T3-40.1-20; Amended Defence, filed 11/7/18, at [11].

    [100]T3-40.17-18.

    “What did you mean by “marginal benefit”?---That we’d had a valuation of between – that the house could possibly realise between 180 and 185,000, and it eventually sold for 200,000.”[101]

    He also testified that:

    “Now, in hindsight, it – it – didn’t realise, but under normal circumstances, I would expect some renovations to – to realise a better price for a house.”[102]

    And Kim Young testified that:

    “I assumed that that would be – that she was doing it up to have a nice house to live in and the benefit to us would be that when we sold it we would get some financial benefit from that.”[103]

    And when pressed in cross-examination, she conceded that “what was done was likely to embellish the value of the property”.[104]

    [101]T3-40.7-9.

    [102]T3-27.40-42.

    [103]T3-104.30-32.

    [104]T3-119.40-41.

32. Kim Young conceded in cross-examination that she would have:

(a)        replaced the kitchen cupboards if she had known they were rotten;[105]

[105]T4-7.12-14.

(b)        repaired or replaced the kitchen tiles if she had known they were coming off and she “felt it were necessary for the tenant”;[106] and

(c)        taken action in respect of the boiler if it were not working efficiently and also acknowledged that the plaintiff had informed her of her intention to replace the boiler.[107]

33. Whilst the evidence supports what may be a natural inclination towards a conclusion that the refurbishments undertaken by the plaintiff were of some benefit to the defendants,[108] as reflected in the realisation of their equity in the Langford Close property, the evidence does not permit of any finding in quantification of that benefit. And it is to be observed that on the plaintiff’s case, there was no meaningful attempt to do so, either in respect of accretion to value of the Langford Close property or as to any benefit in respect of capital gains tax payable upon sale.

    [108]A “marginal benefit” was conceded in the Third Amended Defence, filed with leave 22/02/19, at [11].

34. Rather and in the context of broad and speculative submissions that there was “nothing to quarantine the accretions of value attributable to the renovations from normal market forces, such as Brexit” and as to difficulty in any reliance on the sale price as indicative of market value because of the plaintiff’s evidence as to the quickness of the sale upon acceptance of an early offer,[109] what was sought was simply recovery of the costs of the refurbishments in the context of reference to the following observations:

    “Ordinarily when there is an incontrovertible benefit provided by the person who seeks restitution against the owner of the property, the benefit is the lesser of the increase in the value or the cost of providing the benefit.”[110]

    As is implicit in that passage, there can be no assumption that the cost will always be less than any increase in value.

Whether the plaintiff incurred the refurbishment costs in circumstances where they are otherwise recoverable from the defendants on any other legal basis?

35. As is apparent from the references in the plaintiff’s submissions to Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd,[111] her claim for restitution of the refurbishment costs is premised on considerations of unjust enrichment. Those submissions,[112] however, are particularly couched in references to observations in the plurality judgment that include:

    “…. the enquiry undertaken in relation to restitutionary relief in Australia is directed to who should properly bear the loss and why[113] …. Restitution claims are not founded upon a wrong done to the payer[114] …. More importantly, under Australian law, a mathematical assessment of enduring economic benefit does not determine the availability of restitutionary remedies. The equitable doctrine which protects expectations, with which the notion of ‘detriment’ is associated, is not concerned with loss caused by a wrong or a breach of promise.”[115]

    The submission is then couched in reference to the expectation of the plaintiff as to repayment, her detriment in terms of not being “so repaid regardless of any breach of promise or wrong caused by the non-payment” and that the defendants “should properly bear the loss because of the benefits they received from the plaintiff”.[116]

    [111](2014) 253 CLR 560.

    [112]Plaintiff’s Written Submissions, filed 7/5/19, at [48].

    [113](2014) 253 CLR 560, at [78].

    [114]Ibid at [83].

    [115]Ibid at [84].

    [116]Plaintiff’s Written Submissions, filed 7/5/19, at [49].

36. Some difficulty with these submission is to be found in understanding that as it is premised on the noted excerpts from the plurality judgment, each excerpt is taken from separate paragraphs in a passage dealing with the concepts of change of position and detrimental reliance, as responses to a claim in restitution. In the same context, it was noted that “the concept of unjust enrichment is not the basis of restitutionary relief in Australian law”.[117] Earlier it was observed:

    [117](2014) 253 CLR 560, at [78].

“[73]     … In David Securities, the submission that unjust enrichment was a definitive legal principle was rejected. That position has since been maintained consistently by this Court. In Friend v Brooker, it was said that the concept of unjust enrichment was not a principle supplying a sufficient premise for direct application in a particular case. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd, it was commented that there was potential for unjust enrichment as a principle to distort equitable doctrine and to generate new fictions. In Roxborough, Gummow J pointed out that:

‘[S]ubstance and dynamism may be restricted by dogma. In turn, the dogma will tend to generate new fictions in order to retain support for its thesis. It also may distort well settled principles in other fields, including those respecting equitable doctrines and remedies, so that they answer the newly mandated order of things. Then various theories will compete, each to deny the others.’

[74]More recently, Equuscorp Pty Ltd v Haxton confirmed that unjust enrichment does not found or reflect any “all-embracing theory of restitutionary rights and remedies”. That case identified unconscionability as relevant and as derived from general equitable notions which find expression in the action for money had and received. As this Court acknowledged in Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation, “contemporary legal principles of restitution or unjust enrichment can be equated with seminal equitable notions of good conscience”.

[75]In Australia, the equitable roots of the action for money had and received were early recognised in Campbell v Kitchen & Sons Ltd. There, Barton J observed that recovery “depends largely on the question whether it is equitable for the plaintiff to demand or for the defendant to retain the money”. In National Commercial Banking Corporation of Australia Ltd v Batty, Gibbs CJ said:

‘Whether the action is based on an implied promise to pay, or on a principle designed to prevent unjust enrichment, the emphasis on justice and equity in both old and modern authority on this subject supports the view that the action will not lie unless the defendant in justice and equity ought to pay the money to the plaintiff.’

[76]This is not to suggest that a subjective evaluation of the justice of the case is either necessary or appropriate. The issues of conscience which fall to be resolved assume a conscience “properly formed and instructed” by established equitable principles and doctrines. As was said in Kakavas v Crown Melbourne Ltd, ‘[t]he conscience spoken of here is a construct of values and standards against which the conduct of ‘suitors’ – not only defendants – is to be judged’.”[118] (citations omitted)

Earlier again and in the context of comparison with the principles underlying the action for money had and received, it was noted:

“In Roxborough v Rothmans of Pall Mall Australia Ltd, Gummow J explained that the “equitable notions” of which Lord Mansfield wrote have been absorbed into the “fabric of the common law” right of action for money had and received. In this regard, it is to be noted that any reference to equitable notions does not invite a balancing of competing equities as between the parties, based on considerations such as fault. The question here is whether it would be inequitable in all the circumstances to require Hills and Bosch to make restitution. The answer to that question is not at large, but neither is it simply a measure of the monetary extent to which the recipient remains enriched by the receipt at the time of demand for repayment.”[119] (citation omitted)

[118](2014) 253 CLR 560, at [73]-[75].

[119]Ibid at [69].

37. For the defendants, there is criticism as to the absence of identification of “any proper doctrinal basis for recovery” or “principle or some legal course of reasoning which lays the basis for claiming restitution”.[120] In that respect and whilst it is acknowledged that the law of restitution is still evolving, with the concept of unjust enrichment remaining a key consideration, particular reference is made to the judgement of Deane J in Pavey & Matthews Pty Ltd v Paul,[121] including what is noted, as follows, by French CJ and Crennan and Kiefel JJ, in Equuscorp Pty Ltd v Haxton:[122]

    [120]Defendants’ Written Reply, filed 13/5/19, at [8].

    [121](1987) 162 CLR 221, at 256-257.

    [122](2012) 246 CLR 498, at [29]-[30].

“Unjust enrichment was described by Deane J in Pavey & Matthews as:

“a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new or developing category of case.”

It is not a “definitive legal principle according to its own terms”. Nor was it such when first propounded in legal scholarship. It was:

“an ex post facto explanation of decisions that had already been reached, an organisational category separate from contract. The substance of the law still had to be found in its concrete emanations.”

In David Securities Pty Ltd v Commonwealth Bank of Australia, this Court explained the part played by unjust enrichment in a claim for money had and received (in that case for recovery of a payment made under mistake of law). That explanation may be expressed, at a fairly high level of abstraction, as an approach to determining such claims. In summary:

·           recovery depends upon enrichment of the defendant by reason of one or more recognised classes of “qualifying or vitiating” factors;

·           the category of case must involve a qualifying or vitiating factor such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated by the law as unjust;

·           unjust enrichment so identified gives rise to a prima facie obligation to make restitution;

·           the prima facie liability can be displaced by circumstances which the law recognises would make an order for restitution unjust.

Unjust enrichment therefore has a taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another. In that aspect, it does not found or reflect any “all-embracing theory of restitutionary rights and remedies”. It does not, however, exclude the emergence of novel occasions of unjust enrichment supporting claims for restitutionary relief. It has been said of Lord Mansfield’s judgment in Moses v Macferlan that it was his view that “the grounds for obtaining relief in money had and received were not to be considered static and the remedy could be made available in any case in which money had been paid in circumstances where it was unjust for the defendant to retain it”. Nor is the emergence of general principle precluded when “derived from judicial decisions upon particular instances” ...” (citations omitted)

38. It is to be further noted that the same judgment in Equuscorp Pty Ltd v Haxton proceeds to note the observations of Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd,[123] and also that of Gleeson CJ, Gaudron and Hayne JJ,[124] in respect of a question of “conscionability” arising, with the following additional observations:

    “The question of unconscionability, as his Honour explained, derived from the general equitable notions which found expression in the common law count for money had and received. This Court acknowledged in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation that “contemporary legal principles of restitution or unjust enrichment can be equated with seminal equitable notions of good conscience” albeit the action itself is not for the enforcement of a trust. The reference to conscionability in this context, however, does not mean that whether enrichment is unjust is to be determined by reference to a subjective evaluation of what is fair or unconscionable. As the Court reiterated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd: “recovery rather depends on the existence of a qualifying or vitiating factor falling into some particular category.”[125] (citations omitted)

    [123](2001) 208 CLR 516, at [103]-[104].

    [124]Ibid at [23]-[24].

    [125](2012) 246 CLR 498, at [32].

39. It is to be noted that although there is some temporal link and interrelationship with the circumstances relied upon by the plaintiff in pursuit of a declaration of trust in respect of the claim in relation to Kentish Road, this claim as it relates to expenditure in respect of a property in the United Kingdom, is necessarily pursued separately and in restitution. 

40. As contended for the defendants and having regard to the principles which have been noted, this claim in restitution has not been established.  Quite apart from the absence of identification of any recognised, qualifying or vitiating factor, it is correctly contended for the defendants that the compelling circumstances which would prevent any finding that it would be unjust that the defendants retain any benefit which may have accrued to them from the refurbishments undertaken by the plaintiff, are to be found in understanding that it was at the initiation and suggestion of the plaintiff that:

(a)        she occupied the Langford Close property in anticipation of her move to Australia; and

(b)        she undertake the refurbishments in that context and with an obvious element of facilitation of the comfort of her own residence there.

And in those circumstances and notwithstanding the evidence supportive of some extent of necessity for some of the refurbishment and the plaintiff’s awareness of the intended future sale of the property, it was the plaintiff who determined the nature and extent of the works undertaken and who then enjoyed the immediate benefit of them in facilitation of her “rent free” residence at that property until it was sold, subsequently to the breakdown of the arrangements for her move to Australia.

41. Moreover, there is a fundamental difficulty of the absence of cogent evidence of any quantified benefit which has been conferred on the defendants due to the refurbishments, as opposed to substantial reliance upon the cost of performing them.

Kentish Road Claim

Issues

42. In respect of the Kentish Road Claim, the parties identified the following issues:[126]

    [126]MFI A at [3].

“(a)       whether the Payments were a gift to the defendants; or

(b)       whether the plaintiff made the Payments pursuant to a joint endeavour and, if so, the scope of that joint endeavour;

(c)       whether the plaintiff was intended to receive a beneficial interest in the property situated at 56 Kentish Road, Kiels Mountain (“Kentish Road”);

(d)       whether any such relationship or endeavour between the parties has/had broken down, and if so, whether blame is attributable to either party;

(e)       whether it is unconscionable for the defendants to retain the beneficial interest in the whole of the Property;

(f)        if it is unconscionable, whether a constructive trust or other equitable remedy ought to be applied with reference to the Payments and the proportion they bear to the overall acquisition cost of the Property;

(g)       if a remedy is imposed involving the sale of the Property, whether the plaintiff is entitled to any portion of any increase in value to the Property since its acquisition.”

43. Alternatively, to these issues:[127]

    [127]MFI A at [4].

“(a)      whether the circumstances give rise to the presumption of a resulting trust in favour of the plaintiff to the extent of the Payments;

(b)       whether the presumption of advancement operates to prevent a resulting trust from arising;

(c)       whether the presumption of a resulting trust is rebutted.”

And finally:[128]

“5.      Whether an estoppel arises or operates against the Plaintiff being granted relief.”

Some Principles

44. This formulation of issues reflects some equitable principles which may be discerned from the consideration of cases which involve disputes in the context of contribution by parties to the purchase of property and where that contribution is not reflected wholly or in part, in the legal title to the property. For instance and in respect of the alternative contentions as to a presumption of resulting trust arising, the plaintiff relies upon Calverley v Green,[129] in support of the submissions that except where a presumption of advancement arises in negation:

    “When a donor purchases property in the name of a recipient, equity usually applies a presumption that the person who paid less holds that portion of the property she did not pay for in trust for the other person.”[130]

    [129](1984) 155 CLR 242.

    [130]Plaintiff Amended Outline of Submissions, filed 9/5/19, at [155].

45. Further, the plaintiff in contending that the circumstances do not permit of the “presumption of advancement” applying to negate or prevent a presumption of resulting trust, makes specific reference to the judgement of Edelman J in Anderson v McPherson (No 2).[131] In that decision, his Honour (as he then was) noted that in contrast to evidence of an express trust, a resulting or implied trust arises where the intention as to a trust is proven by presumption, but with the “intention to be discerned” being “an objective manifest intention … not an unexpressed subjective intention”.[132] After notation that the presumption of advancement “might be better described as a “presumption of gift”,[133] it was observed:

    [131](2012) 8 ASTLR 321; [2012] WASC 19. Broadly, this decision was concerned with circumstances where parents had provided most of the purchase price of a property, the legal being held in half shares as tenants in common with their son and daughter in law (with each tenancy in common being held as joint tenancy) upon the basis of coming to live at the property.

    [132]Ibid at [96]-[98].

    [133]Ibid at [130].

“[136]    The dominant Australian approach, however, is that of Dixon CJ: the “presumption of advancement” is not a presumption but is simply a circumstance in which the “presumption of resulting trust” does not arise. Thus, in Martin v Martin (1959) 110 CLR 297, the High Court (Dixon CJ, McTiernan, Fullagar and Windeyer JJ) explained that the presumption of resulting trust did not apply where a husband purchased land in the name of his wife: “as she was his wife the fact that he found the purchase money for the land raised no presumption in his favour of a resulting trust as it would or might have done had she been a stranger” (at 303). The court explained that the presumption “is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose” (at 303).

[137] Various of the judgments in Calverley v Green also reiterate this point: (at 247) (Gibbs CJ); (at 256) (Mason and Brennan JJ). The judgments of Deane J and Murphy J are the most explicit. Murphy J said that “[t]he presumption of advancement, supposed to be an exception to the presumption of resulting trust, has always been a misuse of the term presumption, and is unnecessary” (at 265). Deane J said this (at 267):

“[T]he ‘presumption of advancement’, is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that … there is an “absence of any reason for assuming [presuming] that a trust arose.”

[138]The question for resolution in this case, therefore, is whether the “presumption of advancement” applies. If so, this would then have the effect that there is no presumption of a declaration of trust.”

46. Then and after noting that the relationship of parent and son was sufficient for the presumption of advancement to be applicable to the title of the son, it was different in respect of the relationship with the daughter-in-law:

“[145]  …The question is whether in all the circumstances the relationship between Stephannie and her parents-in-law Bruce and Carol, was of such a similar nature to that of an ordinary parent-child relationship that it could be treated in the same manner as a parent-child relationship for the purpose of the presumption of advancement.”

47. And it was upon a finding that unlike the position in respect of the son, “a presumption of advancement does not apply in relation to [the daughter-in-law]”, that it was determined that no presumption of advancement applied.[134] However that was in circumstances where although he was the second defendant, the son made no appearance and the case was noted as being concerned with whether the daughter-in-law “held her rights to the … property on resulting trust for [the parents]”,[135] and ultimately a conclusion that “the presumption of resulting trust is rebutted on the facts”.[136]

    [134]Ibid at [153]-[154]; cf at [142].

    [135]Ibid at [273].

    [136]Ibid at [275].

48. For the plaintiff, reference is also made to the following observations in Swettenham v Wild:[137]

“[35]      That is not, however, the end of the matter. The circumstances surrounding a relationship may be used to rebut the presumption of advancement. The learned trial judge found that the presumption of advancement was not rebutted in the circumstances but I am respectfully unable to agree with that conclusion. The presumption or inference of advancement is capable of being rebutted usually by evidence of actual intention not to pass the equitable title leading the court to enforce a resulting trust rather than an express trust. In my view, the inference of advancement may also be displaced where the common intention of the parties, which was consistent with the presumption of advancement, was dependent on a continuing state of affairs or relationship or common endeavour. Where that common endeavour breaks down, the presumption of advancement may no longer apply. The difference can be seen by comparing the gifts of money made to Barry and Alan Swettenham compared to the gift made to Ms Wild of a house in which Mr Swettenham could also reside in a granny flat while enjoying the advantages of living in a family environment and being looked after by his daughter and her family as he aged. The gifts to Barry and Alan were absolute. However the gift to Ms Wild was dependent upon the on-going relationship or joint endeavour. If the joint endeavour failed, then a constructive trust may arise. Counsel for the respondent conceded on the appeal that this was an appropriate case to impose a constructive trust. That concession was correctly made.”

49. It is in this context and references also to Calverley v Green,[138] that the primary submission for the defendants is for a finding of voluntary gift by the plaintiff.[139]

    [138](1984) 155 CLR 242, at 246-7, 250, 266-268 and 270. See Defendants’ Written Outline of Submissions, filed 8/4/19, at [117]-[119].

    [139]Defendants’ Written Outline of Submissions, filed 8/4/19, at [123].

50. On the other hand and in respect of the presumption of advancement and more generally, the main thrust of the contentions for the plaintiff is in respect of the finding of a common intention or joint endeavour, which involved mutual benefit including the right of residence of the plaintiff in the property. That is contended as integrating the steps that the plaintiff would sell property in the United Kingdom, would reside in and renovate the Langford Close Property and provide funds towards the acquisition of a property in Australia for the future cohabitation of the parties.[140]

    [140]Plaintiff’s Written Outline of Submissions, filed 7/5/19, at [54].

51. The broader claim for the plaintiff is for the declaration of a constructive trust, on the basis of unconscionability in the retention by the defendant of the beneficial interest in Kentish Road, in such circumstances. In that respect, and in specific response to a submission for the defendants that the “realistic interpretation of those arrangements that is most favourable to the plaintiff is that it would have conferred on her an equitable life estate”,[141] there is alignment sought to the following application of principle in Swettenham v Wild:[142]

“[42]      In this case, Mr Swettenham intended that Ms Wild would take the legal title to the property. However in return he was to retain not only a right to reside in the granny flat but also receive the support and comfort of living in a family environment with his daughter and her family as he aged. That was the joint endeavour between them and not, as the learned trial judge held, the conferral by Ms Wild on Mr Swettenham of the right to reside in the granny flat for the rest of his life. That joint endeavour between the parties was to be for their mutual benefit but failed through no attributable fault of either party. Mr Swettenham contributed a large proportion of the purchase price. In these circumstances it would be unconscionable for Ms Wild to retain the beneficial interest in the whole of the property subject only to Mr Swettenham’s right to reside in the granny flat.”

52. On the basis of the joint venture which the plaintiff contends as the appropriate characterisation of the arrangements in this case, she seeks remedy in the nature of constructive trust. In the first instance that is on the basis of finding common intention that the plaintiff should have a beneficial or some form of proprietary interest in the property.[143] Secondly, there is resort to the recognition of the following principles (in reference to the earlier judgment of Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 620) in Baumgartner v Baumgartner:[144]

    “Deane J. (with whom Mason J. agreed) reached this result by applying the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. His Honour said:

    "... 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: cf. Atwood v. Maude and per Jessel M.R., Lyon v. Tweddell."

    His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention "to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle": see also at p. 617. In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust.” (citations omitted)

    [143](1987) 164 CLR 137, 147-148: As recognised in Shepherd v Doolan [2005] NSWSC 42, at [34]-[40], in reference to cases such as Grant v Edwards [1986] Ch 638; Maharaj v Chand [1986] AC 898 at 907; and Green v Green (1989) 17 NSWLR 343.

    [144](1987) 164 CLR 137, at 147-8.

53. As to the application of such principles there is further reference to:

(a)        Waterhouse v Powers:[145]

[145][2003] QCA 155, at [23]; Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [145].

“… That clearly suggests that though the court may impose a constructive trust regardless of the actual intention of the parties, the intention of the parties is not an irrelevant consideration. On my reading of the passages in Muschinski and Baumgartner referred to, the court should, in the first instance, consider the position in law and equity given the actual intention of the parties. The conclusion so derived may then be set aside to the extent that enforcing ownership of the property in that way “would be contrary to equitable principle.” That must mean that the position as to ownership reached by considering the relevant conduct, including the agreement between the parties, was a result evidencing “unconscionable conduct” according to general principles of equity. …”;

(b)        Turner v Dunne:[146]

[146][1996] QCA 272, 9-10; Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [145].

“It is clear from the principal judgment in Baumgartner that a trust may be imposed "regardless of actual or presumed agreement or intention";

(c)        Brown v Manuel:[147]

[147][1996] QCA 65, 5; Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [145].

“The appellant argued that a constructive trust may arise only if the conduct of one party has caused the other to expect that he or she will acquire some proprietary interest. No doubt if there were such conduct or if a representation having that effect were made and resiled from unconscionability would, in a case like this, be more readily inferred. But it is not correct that unless there is some such conduct no constructive trust may be inferred. Nor is it necessary, in order to draw such an inference, that the parties must have pooled their resources. Again, such pooling may enable the inference to be more readily drawn. But its absence is not crucial: Hibberson v. Genge (1990) 12 Fam.L.R. 725, 742.”; and

(d)         Peterson v Hottes[148] and Swettenham v Wild,[149] as instances of arrangements involving a parent and adult child, including in respect of co-habitation in a property.[150]

54. As is pointed out for the defendants, typically in cases where such issues arise it is for the Court to discern the contemporaneous intentions of the parties from the evidence and in the absence of any agreement drafted with any eye to the legalities involved. In the first instance, regard is to be had to the evidence of contemporaneous written communications. But there is also the evidence as to relevant oral communications and inevitably, evidence which seeks to characterise the dealings of the parties after the event.  Particular reliance is placed on a passage taken from Charles Marshall Pty Ltd v Grimley,[151] in support of a submission that leaving aside statements against interest, subsequent statements by the parties may be strictly inadmissible.[152] However, it is instructive to note what was said in reference to that earlier passage, in the judgements in Calverley v Green and upon an understanding of the context of the later observations being in respect of issues relating to resulting trusts. In the joint judgement of Mason and Brennan JJ, there is the following:

    [151](1956) 95 CLR 353, 364-365, as referred to in Calverley v Green (1984) 155 CLR 242, at 262, 269-270.

    [152]Defendants’ Written Outline of Submissions, filed 8/4/19, at [40].

    “The next question is whether the equitable presumption applicable when unequal contributors to the purchase price who are not spouses and who take a conveyance to themselves as joint tenants is rebutted or qualified by the circumstances. The equitable presumption can be rebutted or qualified by evidence of a contrary intention common to the contributors of the purchase price. When a common intention is in issue, it is not ordinarily to be found in an uncommunicated state of mind; it is to be inferred from what the parties do or say.

    It may be that evidence of a sole purchaser's own state of mind at the time of the purchase can be received from him when the court is seeking to ascertain his intention (Martin v. Martin) but in the search for the common intention of two or more purchasers at that time, light will rarely be shed by evidence of their uncommunicated states of mind. Lord Diplock's speech in Gissing v. Gissing contains the principle ordinarily to be applied:

    "As in so many branches of English law in which legal rights and obligations depend upon the intentions of the parties to a transaction, the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party. On the other hand, he is not bound by any inference which the other party draws as to his intention unless that inference is one which can reasonably be drawn from his words or conduct. It is in this sense that in the branch of English law relating to constructive, implied or resulting trusts effect is given to the inferences as to the intentions of parties to a transaction which a reasonable man would draw from their words or conduct and not to any subjective intention or absence of intention which was not made manifest at the time of the transaction itself. It is for the court to determine what those inferences are."

    The Court of Appeal correctly took the time of the acquisition of the Baulkham Hills property as the material time for determining the beneficial interests of the parties. The evidentiary material from which the court might have drawn an inference as to the intention of the parties included their acts and declarations before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction. Evidence of those acts and declarations were admissible either for or against the party who did the act or made the declaration, but any subsequent declarations would have been admissible only as admissions against interest: Shephard v. Cartwright; Charles Marshall Ply. Ltd. v. Grimsley.”[153]

    [153](1984) 155 CLR 242, at 261-262.

And in the judgement of Deane J:

“In these circumstances, the starting point for the determination of the extent of the respective beneficial interests of Mr. Calverley and Miss Green in the Baulkham Hills property was a presumption that the property was held upon resulting trust for them according to their respective contributions to the purchase price. That presumption could be rebutted or qualified by admissible evidence which indicated either that Miss Green was intended to have a full half beneficial interest in the property or that Mr. Calverley was intended to have the whole beneficial interest. In Charles Marshall Pty. Ltd. v. Grimsley, it was said in the judgment of the Court (Dixon c.J., McTiernan, Williams, Fullagar and Taylor JJ.):

"The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase ... or so immediately thereafter as to constitute a part of the transaction."

This passage constitutes a guide to the evidence which will ordinarily be relevant and admissible to confirm or rebut a presumption of resulting trust or a "presumption" of advancement, namely, acts and declarations of the parties before or at the time of the vesting of the legal estate and admissions against interest. The passage should not, however, be accepted as good law to the extent that it purports to lay down that no evidence other than that mentioned will ever be admissible. Regardless of whether the circumstances are such as to bring the case into one of the categories of advancement, evidence of the relationship - both legal and factual - between the parties will always be admissible. More importantly, the subsequent judgment of Dixon C.J., McTiernan, Fullagar and Windeyer JJ. in Martin accepted, as correct, statements of Stuart V.C. and Cussen J. to the effect that, in a case where the subjective intention of a person is relevant, the evidence of that person of his intention at the time of the purchase is admissible notwithstanding that "it must in every case be liable to observations which tend to diminish its weight": see also Devoy v. Devoy; Fowkes v. Pascoe. It is unnecessary to pursue here the question, which was not argued on the appeal, of the relevance of evidence of subjective intention of either party in a case such as the present where the purchase price was provided by two different active parties to the transaction: cf. Gissing v. Gissing. In such a case, the primary question will be whether there was any arrangement between the parties which precluded or modified the trust which would otherwise result from their respective contributions to the purchase price. If that be the only question, evidence of a subjective uncommunicated intention of either party will not be admissible. It is, however, conceivable that, in a case where there was no relevant arrangement between the parties, the critical question may be whether there was an actual intention on the part of the person who contributed the bulk of the purchase price to benefit the other party. In such a case, it is difficult to see why the direct evidence of that person of his actual intention is, as a matter of principle, inadmissible.”[154]

Accordingly and where, as here, such evidence has been admitted without objection, it will be necessary to consider the relevance of it to the particular issues to be determined and the need to recognise that the more compelling and reliable evidence may be found in the evidence as to the actual conduct of the parties in respect of the transaction in question, or proximate to it.

Whether there was a gift or a joint endeavour?

55. The plaintiff contends that the arrangements between the parties was in the nature of a joint endeavour to provide joint accommodation for the future of the parties, rather than her advances towards the purchase of Kentish Road being by way of simple gift.  And it appeared to be common ground that there was an expectation of the plaintiff moving to Australia to live with the defendants, sometime after the anticipated passing of her mother, whose funeral was held on 7 January 2017.[155]

    [155]T4-33.1-2; T1-49.5-20; T2-9.9-10; T2-42.1-20.

56. In evidence, the defendants sought to characterise the advances as a gift[156] and pointed to the following considerations in support of such contention:

    [156]T2-99.32-40; T3-131.43-47; T3-122.45 – T3-123.5.

(a)        the plaintiff was aware of the defendants’ limited financial means;[157]

[157]Exhibit 1, p 96; T1-99.8-11.

(b)        in her email dated 8 September 2015, she had indicated that she had monies (available from the sale of a property) which were invested and that she was “happy to help out” and:

“We can have a chat about your mortgage or using the funds towards a purchase of something etc. etc. and long-term plans.  I shall have a bit more when I’ve sold the house here and the boat, but have to keep a little bit back to live well on over there of course! Teehee!”[158]

[158]Exhibit 1, p 97.

(c)        she agreed that she had placed no conditions on her offer of funds and stated intention to help and that she had required no security nor expressed any requirement for repayment;[159]

[159]T2-15.35 – T2-16.10.

(d)        as is the implication of the email dated 8 September 2015, there had been earlier discussion as to the plaintiff “help[ing] out”. Kim Young’s evidence was as to an earlier conversation in which there was an offer to give the defendants money to buy land, on the basis that Gary Young was to receive the money one day anyway.[160] Whilst the plaintiff did not recall the details of any such conversation and doubted the proposition of an offer to “give” the money rather than “help”, she did agree to having commented to the effect that Gary Young would receive her money one day;[161]

[160]T3-122.30 – T3-123.12.

[161]T2-11.47 – T2-12.2.

(e)        in a text message[162] and an email,[163] the plaintiff had demonstrated a willingness to provide whatever funds were necessary to purchase another and more expensive property, as was proposed before the Kentish Road purchase; and

(f)        that as a person reasonably experienced in matters of buying and renovating real property,[164] the plaintiff’s explanations as to trusting her son and not wanting to be involved in paperwork, should not be preferred to that of each defendant as to a conversation (which the plaintiff said she did not recall)[165] and in which she had expressed, when asked, her wish not to be put on the title and that the property be the defendants.[166]

106. As to the application of the general principles which have been noted as to the imposition of a constructive trust upon the basis of unconscionable retention of the beneficial interest in property, the plaintiff particularly and relevantly relies upon considerations that:

(a)        The joint endeavour being characterised by:

(i)         the plaintiff’s ability and willingness to cohabit with the defendants as the basis of her forwarding the payments;[283]

[283]Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(a)(iv)].

(ii)       there being no suggestion that the payments would not cover her accommodation;[284]

[284]Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(a)(v)].

(iii)      the circumstance that in order for the plaintiff to provide the payments to assist with the purchase of a property to accommodate the parties, she would be selling her own property in the UK;[285]

[285]Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(b)].

(iv)       the payments being pooled with the monies the defendants could borrow from a bank to purchase the Kentish Road property;[286]

[286]Plaintiff’s Amended Outline of Submissions, filed 9/5/19, 19 at [54(c)].

(v)        the indication that when the Langford Close property was sold, the defendants would provide the plaintiff with the entire balance of its proceeds;[287] and

[287]Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(d)].

(vi)       the final cog of the joint endeavour being that the plaintiff would move into the Langford Close property and renovate it in anticipation of its sale;[288]

[288]Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(e)].

(b)        It would only be fair, just and equitable for the defendants to pay the plaintiff back the monies she paid towards the Kentish Road property.  The defendants would simply be restored to their pre-contract position after enjoying almost three years of basically sole occupation in that house[289] with a minimal mortgage in place, in a property that they admitted they could not originally afford themselves;[290]

[289]T3-83.45-46.

[290]Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [133].

(c)        The Court could comfortably find that it would be unconscionable for the defendants not to repay the funds transferred to them pursuant to the joint endeavour;[291]

[291]Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [136].

(d)        It was the common intention of the parties, inferred from their conduct and communications, to pursue the joint endeavour described in detail above. It was commonly intended that the plaintiff have a beneficial interest in the subject property.  Exhibit 1, page 166 is the most obvious manifestation of this intention. The plaintiff advanced the payments towards that common intention. Given the defendants’ reluctance to acknowledge that beneficial interest, the court ought construe a trust in the plaintiff’s favour;[292]

(e)        It is the plaintiff’s position that the Kentish Road property should be sold pursuant to the constructive trust.  Equity’s intervention should be to the extent that unconscionability is eliminated.[293] Accordingly, “a result of equality can be displaced “if one party is able to show that the contributions, both financial and non-financial to that asset should not be regarded as equal”.[294] It also follows that simply placing an equitable charge or lien in favour of the plaintiff will not eliminate unconscionability given the untenable state of cohabitation.  Equitable relief “may be moulded to recognize practical considerations such as the need for a clean break”.[295]

107. The defendants contend that this is not a case which calls for a declaration of a constructive trust, in that there is nothing unconscionable about the defendants retaining their legal and beneficial title to Kentish Road, given both the circumstances in which Kentish Road was acquired and the fact that the defendants have proceeded to occupy and use Kentish Road as intended by the parties. Once again particular attention is drawn to contentions that:[296]

     [296]Defendants’ Written Outline of Submissions, filed 8/4/19, at [7].

(a)        “the plaintiff voluntarily gifted funds to the defendants;

(b)        those funds were paid toward the acquisition of 56 Kentish Road, Kiels Mountain (Kentish Road) by both defendants;

(c)        the plaintiff at all times intended that the defendants received full beneficial title to Kentish Road;

(d)        it was agreed that the plaintiff would reside at Kentish Road, after her own mother’s death, at the timing of her choice;

(e)        the plaintiff did not at any time take up residence at Kentish Road, but after a short holiday at Kentish Road, changed her mind about her initial decision to move to Australia.”

108. Quite apart from what has already been found as to the thrust of those contentions not being adequately reflective of the true import and effect of the joint endeavour undertaken by the parties as to the purchase of Kentish Road, the identification and application of relevant equitable principle in the Swettenham and Peterson decisions, is particularly instructive. Just as was influential in those decisions, the plaintiff’s claim to a conclusion of unconscionability lies in the understanding of the defendants’ position being as to complete retention of their legal interest and denial of any beneficial interest of the plaintiff in Kentish Road, notwithstanding the unforeseen circumstances of the collapse of their relationship involving the arrangement for their cohabitation into the future. Similarly to the circumstances as found in Peterson,[297] such conclusion here is warranted notwithstanding that there may also be discerned to have been a concurrent purpose in the arrangements of assisting the circumstances of the defendants. Just as in those cases, an essential component of the joint endeavour which was undertaken as to the purchase of Kentish Road, is the joint understanding that there was to be provision for the plaintiff’s cohabitation there with the defendants.

     [297][2012] QCA 292, at [34].

109. It is clear that not only did the parties not anticipate the failure of the joint endeavour but neither had they determined how their respective rights were to be determined upon that event. Such a situation invites reference to the following observations of Deane J in Muschinski v Dodds:[298]

“In circumstances where the parties neither foresaw nor attempted to provide for the double contingency of the premature collapse of both their personal relationship and their commercial venture, it is simply not to the point to say that the parties had framed that overall arrangement without attaching any condition or providing any safeguard specifically to meet the occurrence of that double contingency. As has been seen, the relevant principle operates upon legal entitlement. It is the assertion by Mr Dodds of his legal entitlement in the unforeseen circumstances which arose on the collapse of their relationship and planned venture which lies at the heart of the characterisation of his conduct as unconscionable. Indeed, it is the very absence of any provision for legal defeasance or other specific and effective legal device to meet the particular circumstances which gives rise to the need to call in aid the principle of equity applicable to preclude the unconscionable assertion of legal rights in the particular class of case.”

110. In the circumstances, it should be concluded that it is unconscionable for the defendants to insist on their position as the legal owners of Kentish Road without recognition of any equity of the plaintiff, having regard to her contribution to the purchase of that property.

Does an estoppel arise or operate against the plaintiff having relief?

111. Finally, the defendants contend that the plaintiff should be estopped from claiming that she has a beneficial interest in Kentish Road.[299] Reference is made to Thompson v Palmer,[300] Grundt v Great Boulder Pty Gold Mines Ltd,[301] and Legione v Hately,[302] in support of the application of a principle premised on not permitting “an unjust departure by a party from an assumption of fact which he has caused the other party to adopt or accept for the purpose of their legal relations”, in the sense of some identified detriment to the other party should departure from the assumption be allowed.[303]

     [299]Defendants’ Written Outline of Submissions, filed 8/4/19, at [146].

     [300](1933) 49 CLR 507, at 547.

     [301](1937) 59 CLR 641, at 674-6.

     [302](1983) 152 CLR 406, at 430.

     [303]Defendants’ Written Outline of Submissions, filed 8/4/19, at [148].

112. Reference is also made to particular judgments in Commonwealth v Verwayen,[304] and Walton Stores v Maher,[305] in support of a submission that the expressed principles involve “consideration of whether departure from the state of affairs assumed by a party would be unconscionable”.[306]

     [304](1990) 170 CLR 394, at 412-3, 443-6.

     [305](1988) 164 CLR 387, at 428-9.

     [306]Defendants Supplementary Written Submissions, dated 7/6/19, at [31]-[34].

113. The assumptions upon which it is contended that the plaintiff caused the defendants to act are identified as:[307]

     [307]Defendants’ Written Outline of Submissions, filed 8/4/19, at [149].

“(a)      that the funds given them by her were to be provided and were provided unconditionally. In other words, the Plaintiff, prior to or at the time of providing the money never expressed the position that the money was provided on the basis that it would have to be paid back if the Plaintiff decided not to come to Australia;

(b)       that she required no beneficial entitlement to the property that would be purchased;

(c)       whatever became the case, the property purchased would be the defendants’ property to own and enjoy;

(d)       that she was committed to residing with the Defendants at the chosen property;

(e)       she would come to Australia to live with the Defendants at a time of her choosing after the death of her own mother”.

114. The detriment which would be suffered by the defendants if there were allowance of departure from those assumptions is identified in terms that they:[308]

     [308]Defendants’ Written Outline of Submissions, filed 8/4/19, at [150].

“(a)      sought out and identified a suitable property to meet their needs and the needs of the Plaintiff;

(b)       negotiated the purchase of Kentish Road;

(c)       applied for and obtained finance approval toward the purchase of Kentish Road;

(d)       incurred debt to assist in financing the purchase of Kentish Road;

(e)       vacated their former home and moved to Kentish Road;

(f)        expended money and personal effort to the improvement and upkeep of Kentish Road.”

115. As is contended for the plaintiff, in the first instance the defendants seek to rely on their interpretation of the plaintiff’s representations by placing emphasis upon the provision of the funds by way of gift with the future anticipation of cohabitation, rather than as encompassing the joint endeavour involving, as a then present state of affairs, provision for that cohabitation. It is also correctly pointed out that there is an absence of any precise evidence as to any substantial improvement of Kentish Road.[309] And more particularly, there is no relevant detriment which is identified, as opposed to the defendants being denied the retention of the benefit of the plaintiff’s remaining contribution to Kentish Road.

     [309]As discussed at paragraph [122], below.

116. It may also be observed that there is some conceptual difficulty in the attempt to contend for a finding of estoppel, in that the matters relied upon by the defendants as the considerations upon which an estoppel might be found, largely involve the considerations which influenced the conclusion as to whether a resulting trust arose.[310] And it is difficult to contemplate how such an estoppel could operate to defeat a finding that there is such unconscionability in the retention of the benefit provided by the plaintiff as to warrant the imposition of a constructive trust.

     [310]As is conceded for the defendants (Supplementary Written Submissions, dated 7/6/19, at [25]-[30]) there may be difficulty in finding an estoppel if the circumstances give rise to a resulting trust and the reference to the decision in Macquarie Bank Ltd v Lin [2005] QSC 221 is not of assistance, in so far as the discussion relates to the position of a third party.

117. Accordingly, there is no basis for any estoppel of a finding that the plaintiff has a beneficial interest in respect of her remaining contribution to the purchase of Kentish Road.

Remedy

118. As is noted in both Swettenham v Wild,[311] and Peterson v Hottes,[312] it is usually appropriate in circumstances where there is a finding of unconscionability in the retention of the benefit derived from such a failed joint endeavour, for there to be relief in the form of declaration of constructive trust as to the respective shares of the beneficial interest of the parties in the property. Similarly to the situation noted in Peterson, here there is no valuation evidence, but as there noted, “it would be appropriate for the co-venturers to share in any accretion in value or to bear any losses in proportion to their respective contributions.” Such a declaration was made in Peterson.

119. There is little by way of common ground in the submissions of the parties as to whether and how any such considerations should be reflected by relief for the plaintiff, or as to any consequential orders.

120. However it can be noted that there is common ground in the evidence that:

(a)        The total amount made available, in Australia, to facilitate the purchase of Kentish Road was $321,000.01;[313] and

[313]Exhibit 1, pp 48-50.

(b)        The total purchase price of Kentish Road, including stamp duty, fees and charges, was $521,932.33, of which:

(i)         $250,518.60, was funded by loan obtained by the defendants and secured by registered mortgage; and

(ii)       the balance of $271,413.73, was met from the funds provided by the plaintiff.

It may also be noted that the plaintiff’s position (as it is understood, not put in contest by the defendants) is that the repayment of $144,226.11(£90,000.00) is to be taken as repayment of the excess of the funds advanced by the plaintiff and in part reduction of her contribution to the purchase of Kentish Road, leaving a contribution of $177,521.90, or very close to 34% of the total purchase price.

121. Otherwise a more orthodox approach is to look to the actual division of contribution to the purchase and to then allow for adjustments, having regard to any disproportion as to subsequent receipts and contributions to improvements and upkeep of the property.[314] That would mean attributing to the plaintiff, as a starting point, a share of approximately 52% of Kentish Road. It would then be necessary to allow for appropriate adjustments including for subsequent contributions and receipts, as was done in Peterson v Hottes.[315]

     [314]Eg: see Peterson v Hottes [2012] QCA 292, at [42]-[44].

     [315]Ibid at [43].

122. In the first instance it would be necessary to allow for the repayment made to the plaintiff. Allowance would also be required in respect of subsequent contributions to improvements and maintenance by the defendants. Notwithstanding it also being an objective of the joint venture, it may be necessary to allow some offset in respect of the benefit to the defendants of uninterrupted occupation since purchase. However and apart from an understanding that the defendants have been responsible for the ongoing maintenance of the property, the evidence as to any improvements (including by the devotion of Gary Young’s skills and efforts) was imprecise and unsupported by any other evidence, including as to valuation.[316]

     [316]T3-78.28 – T3-79. 36, T3-87.30 – T3-93.13 and T4-42.19-22.

123. An approach for the plaintiff was to rely on the concession that any expenditure upon improvements had come from the funds provided by the plaintiff and which were not used in the purchase.[317] However that excess was effectively repaid, so that the overall effect is that any such improvements might then be regarded as effectively provided by the defendants from the realized equity in the Langford Close property.

     [317]T3-96.20-43.

124. Further complication of these circumstances is the evidence that:

(a)        the plaintiff’s stated position in the immediate aftermath of the breakdown of the joint endeavour was to seek the full repayment of her transferred funds;[318] and

(b)        in her testimony to the Court, this desire to have her money refunded was restated as her wish.[319]

125. To an extent, such position may be regarded as consistent with an intention expressed by Kim Young in a message dated 31 October 2015, and albeit that it was in respect of the potential purchase of a more expensive property at 16 Kentish Road:

     “We had a meeting last week with the financial people & I’ve given them all the paper work so it’s a case of waiting but that was originally looking at a mortgage of $300 for 16 Kentish road but we’re thinking if you put in your available investment & we get a mortgage for 225-250k when we sell Langford close we give you that money.

     I’ll call the mortgage people in Monday & say we want to reduce the amount we need.”[320]

     [320]Exhibit 1, p 113.

126. The intention stated in that message pre-dated a further message dated 3 November 2015, from Kim Young, assuring the plaintiff that she had to be sure as to what she wanted to do and that there was no difficulty if she got “cold feet” and wanted to change her mind. And both messages pre-dated the arrangements actually put in place in respect of the purchase of Kentish Road. Whilst, as noted, these exchanges were in direct reference to a different proposed purchase, an intention of repayment was later confirmed by the defendants in respect of the breakdown of the joint endeavour in relation to Kentish Road:

     “Yes, our intention has always been that we would reimburse you from the sale of Langford Close but it obviously won’t cover the whole sum now.”[321]

     As would appear from an understanding of the amounts involved (and even allowing for the plaintiff’s contention that the Langford Close property was sold too quickly and cheaply) there was never going to be enough to completely repay the plaintiff, so that there would have remained a substantial contribution by her to what has been found to be the joint endeavour of the parties.

     [321]Exhibit 1, p 151.

127. Otherwise, it is to be noted that the submissions for the plaintiff press concerns that:

(a)        she have orders reflective of an appropriate share of any accretion in value of Kentish Road, although but in the absence of valuation evidence, the position is that she might be expected to share any diminution as much as accretion in value; and

(b)        that orders be made to effect a statutory trust for sale, so as to avoid further delay in realising the repayment of her share.

128. For the defendants there was resistance to any order as to statutory trust for sale, on the basis that a declaration as to a beneficial interest (such as by trust) would be sufficient to protect the plaintiff’s position, with the defendants having the opportunity to pay out her interest in Kentish Road, so as to maintain the prospect of retaining the property, as had been envisaged when embarking on the joint venture.[322]

     [322]Defendants Supplementary Written Outline, filed 7/6/19, at [7].

129. As is pointed out for the defendants,[323] the forms of relief granted in other cases do not follow a strict formula and may be tailored to particular circumstances, to do justice between the parties. As was noted, in Peterson v Hottes,[324] reliance was there placed upon the following observations in Bathurst City Council v PWC Properties Pty Ltd:[325]

     “ … before the court imposes a constructive trust as a remedy, it should first decide whether, having regard to the issues in the litigation, there are other means available to quell the controversy. An equitable remedy which falls short of the imposition of a trust may assist in avoiding a result whereby the plaintiff gains a beneficial proprietary interest which gives an unfair priority over other equally deserving creditors of the defendant.” (citations omitted)

     And for the plaintiff reference is made to Pain v Pain & Ors,[326] in support of the recognition of the extent of flexibility which may be available in granting relief in order to satisfy equity in particular circumstances.

     [323]Defendants Supplementary Written Outline, filed 7/6/19, at [6].

     [324][2012] QCA 292, at [40].

     [325](1998) 195 CLR 566, at [42].

     [326][2006] QSC 335, at [84].

130. Like the position noted in Peterson, it would not immediately appear likely that a declaration of trust in favour of the plaintiff would prejudice the position of the registered mortgagee in respect of the defendants’ loan.[327] Although, it is an aspect of the concerns expressed by the plaintiff to have an order limiting the ability of the defendants to redraw on their loan.

     [327][2012] QCA 292, at [38].

131. In Peterson,[328] it was concluded that “the money order favoured by the respondent is insufficient to address the respondent’s unconscionability” and a declaration as to constructive trust was made, amongst other orders. However and whilst that was in respect of a 25% beneficial interest in the property, there had also been a period of co-habitation of about six years.[329]

     [328]Ibid at [41].

     [329]Ibid at [1].

132. In this instance, it should be accepted that in the circumstances of breakdown of the joint endeavour almost at inception, the influence of the concomitant aim of that endeavour to assist the defendants’ acquisition of Kentish Road, the repayment already made to the plaintiff and the plaintiff’s stated desire to be repaid her contribution, provides an appropriate basis for concluding that the unconscionability of the defendants’ position may be adequately addressed by order for the repayment of the remaining contribution of the plaintiff to the purchase of Kentish Road, together with an allowance for interest as some compensation for the present value of that contribution and the period during which the plaintiff has not had the benefit of those funds, and provided that there is some appropriate security for the plaintiff’s position and if necessary, to enable the sale of the property to realise that security. Accordingly, that approach would allow for the recognition of the plaintiff’s equity in Kentish Road by way of reference to a specific sum rather than as a percentage of the value.

133. It should otherwise be accepted, as pressed for the defendants, that it is premature to make orders for the appointment of statutory trustees for sale and preferable to allow the parties an opportunity to resolve the repayments which have now been determined to be required.

Conclusion

134. Accordingly and in order to reflect the findings and conclusions reached, there will be orders as to the repayments which are to be made, together with interest. There is nothing in the evidence or submissions to assist as to awarding interest, which as far as relates to the contribution to the purchase of Kentish Road may be awarded in equity, as much as pursuant to s 58 of the Civil Proceedings Act 2011.[330] Drawing assistance as to approach from Practice Direction No. 6 of 2013 at [3], and upon common understanding of the general level of cash rates in recent years, a rate of 4.5% will be adopted and applied to each repayment for a period of four years, which is approximate to a point at which the plaintiff had demanded the repayment of her contribution to Kentish Road. Although the sum relating to the Initial Expenses Claim had been expended at a substantially earlier time and there was an acknowledgement by the defendants of intention to repay as early as 1 April 2015,[331] that was also in the context of an eventual sale of the Langford Close property, which then became complicated by the arrangements as to the joint endeavour and as to the plaintiff’s residence at the Langford Close property.

     [330]See Hungerfords v Walker (1989) 171 CLR 125, at 148; cf: Herrod v Johnston [2013] 2 Qd R 102, at [32]-[33].

     [331]Exhibit 1, p 93.

135. It will be appropriate to grant liberty for the parties to apply to facilitate any necessity for further application for the appointment of statutory trustees for sale.[332] And it will be necessary to allow for submissions as to costs.

     [332]It was noted in the Reply Submissions of the Plaintiff, dated 14/6/19, at [6], that consents to act had been filed. But this is noted to have only occurred on 13/6/20 and in consequence of it being pointed out in the Supplementary Outline of the Defendants, dated 7/6/19, that no such consents had been filed.

136. Therefore, the following are the proposed orders of the Court:

1.          The defendants pay the plaintiff the sum of $7,757.73.[333]

[333]$6,574.35 for the Initial Expenses Claim, plus interest of $1,183.38.

2.          The defendants pay the plaintiff the sum of $209,475.84.[334]

[334]$177,521.90 for the plaintiff’s remaining contribution to Kentish Road, plus interest of $31,953.94.

3.          The parties are to make written submissions as to costs, such submissions not to exceed three (3) pages in length:

(a)        in the case of the plaintiff, by filing and serving such submissions on or before 11 September 2020; and

(b)        in the case of the defendants, by filing and serving such submissions on or before 19 September 2020.

4.          It is declared that the defendants hold their interests in the property described as Lot 8, SP 265513, Title Reference 51027121, located at 56 Kentish Road, Kiels Mountain on trust for the plaintiff beneficially as to the sum of $177,521.90 and in the remainder beneficially for themselves.

5.          The parties are granted liberty to apply.