DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA [2026] SADC 13

Applicant: DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA Counsel: MR J SLOCOMBE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: BEAU JAMES COCHRANE No Attendance First Interested Party: ZANE DONALDSON Counsel: DR J MARCUS - Solicitor: GROPE HAMILTON LAWYERS Second Interested Party: DEANNA JOHNSTON No Attendance Third Interested Party: SECURE FUNDING PROPRIETARY LIMITED No Attendance Fourth Interested Party: ANN-MARIE DONALDSON Counsel: DR J MARCUS - Solicitor: GROPE HAMILTON LAWYERS Hearing Date/s: 01/04/2025, 08/04/2025, 14/04/2025, 28/04/2025, 11/06/2025 File No/s: DCCIV-19-1162/CIV-21-007706 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v COCHRANE & ORS [2026] SADC 13 Judgment of Her Honour Judge Mackenzie 25 February 2026 CRIMINAL LAW - CONFISCATION OF ASSETS - REAL PROPERTY - CO- OWNERSHIP INTERESTS - FORFEITURE OR CONFISCATION - GENERALLY EQUITY - CONSTRUCTIVE TRUSTS - RESULTING TRUSTS - COMMON INTENTION CONSTRUCTIVE TRUSTS The Crown and the first interested party each hold a one-half interest in a house in Klemzig. The Crown holds its interest in the shoes of the respondent, being a prescribed drug offender, pursuant to forfeiture orders made under the Criminal Assets Confiscation Act 2005 (SA). The respondent and the first interested party are brothers. Their mother, the fourth interested party, claims the legal interests in the house are held on a constructive trust for her as to a share of the house. The first and fourth interested parties seek a declaration to that effect. In the case that no interest is found to be held for his mother, the first interested party claims an equitable interest in the house beyond his half-legal interest. The Crown conceded that the first interested party’s interest in the house was for the greater part reflecting his significant financial contributions to the repayment of the mortgage. The first and fourth interested parties assert a common intention between themselves and the respondent that the mother was to hold a share of the house when it was purchased from her former -- 1 of 48 -- partner, initially as to one-third and later, when the respondent ceased contributing to the mortgage repayments, as to one-half. The mother assumed a substantial liability to contribute to the repayment of the mortgage, initially making payments representing one-third of the instalments and later, after the respondent ceased contributing, increasing to in the order of one-half. The Crown challenged the existence of any oral agreement of this kind and put into issue the reasons the mother gave for not being registered as a legal owner of the house together with her sons. In issue was whether the evidence was sufficient to establish facts that would give rise to a constructive trust; the first and fourth interested parties generally conceded that the evidence would not allow the presumption of a resulting trust. It was common ground that if there was a constructive trust it was institutional and not remedial such that it would give the fourth interested party’s interest priority to that vested in the Crown as a consequence of the deemed forfeiture orders. Held: 1. The presumption of resulting trust is excluded by the facts as found. 2. The fourth interested party is entitled to a declaration in her favour that the legal owners of the house hold a 50 percent share of the house on trust for her pursuant to the existence of a common intention constructive trust. 3. The beneficial interest of the fourth interested party arose by operation of an institutional constructive trust prior to the forfeiture of the respondent’s interest in the house. 4. Further consideration is required for determination of equitable accounting or reimbursement for the Crown as to the respondent’s financial contribution. Criminal Assets Confiscation Act 2005 (SA); Real Property Act 1886 (SA); Law of Property Act 1936 (SA); Proceeds of Crime Act 2002 (Cth), referred to. DPP (Vic) v Le [2007] HCA 52; Calverley v Green (1984) 155 CLR 242; Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd (2005) 79 ALJR 550; Jain v Amit Laundry Pty Ltd [2019] NSWCA 20; Muschinski v Dodds (1985) 160 CLR 583; NSW Trustee and Guardian v Togias (2022) 406 ALR 254; Gissing v Gissing [1971] AC 886; Chiarieri v Morphett [2025] SASC 162; Glouftsis v Glouftsis (1987) 44 SASR 298; Roberts v Eckert [2016] SASC 197; Eckert v Roberts [2017] SASCFC 176; Hohol v Hohol [1981] VR 221; Sobey v Sobey [2014] VSC 373; Rasmussen v Rasmussen [1995] 1 VR 613; Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413; Samawi v Faraone [2025] NSWSC 970; Stavrianakos v The State of Western Australia [2016] WASC 64; Allen v Snyder [1977] 2 NSWLR 685; Green v Green (1989) 17 NSWLR 343; Pettitt v Pettitt [1970] AC 777; Shepherd v Doolan [2005] NSWSC 42; Grant v Edwards [1986] Ch 638; Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641; Sidhu v Van Dyke (2014) 251 CLR 505; Secretary, Department of Social Services v Hulett [2025] FCA 23; Bassett v Cameron [2021] NSWSC 207; Koprivnjak v Koprivnjak [2023] NSWCA 2; Kendle v Lee & Anor [2011] SADC 141; Galati v Deans [2023] NSWCA 13; Silvia (Trustee) v Williams [2018] FCAFC 194; Bijkerk Investments Pty Ltd v Bikic NSW [2020] NSWSC 1336; Varma v Varma [2010] NSWSC 786; Mills v Dodds [2025] NSWSC 396; McNab v Graham (2017) 53 VR 311; Mould v Canale [2017] VSC 793; Parsons v McBain [2001] FCA 885; Aguilar v Aguilar (1820) 5 Madd 414; 56 ER 953; Shropshire Union Railways and Canal Co v R (1875) LR 7 HL 496; Abigail v Lapin [1934] AC 491; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; Craig v Craig and Anor [2015] SADC 109; Angelou v Brandenburg [2024] SADC 114; Ambrose as Trustee of the Bankrupt Estate of Peter Athanasas v Athanasas and Anor [2016] SASC 63; Black Uhlans Incorporated v New South Wales Crime Commission & Ors [2002] NSWSC 1060; Behman v Behman [2015] NSWSC 1787; Cong v Shen (No 3) [2021] NSWSC 947; Higgins v Wingfield [1987] VR 689; Farah Constructions v Say- Dee Pty Ltd (2007) 230 CLR 89; Pham v DPP [2017] VSC 261; Gritzman v McRae [2022] NSWSC 745; Commissioner of the Australian Federal Police v Hart; Commonwealth of Australia v Yak 3 Investments Pty Ltd, Commonwealth of Australia v Flying Fighters Pty Ltd (2018) 262 CLR 76; Trajkoski v State of Western Australia [2017] WASC 273, considered. -- 2 of 48 -- -- 3 of 48 -- -- 4 of 48 -- DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v COCHRANE & ORS [2026] SADC 13 Introduction 1 This case concerns the automatic forfeiture of a prescribed drug offender’s interest in a house in Klemzig under the Criminal Assets Confiscation Act 2005 (SA) (CAC Act). In dispute is whether that forfeited interest is held subject to an equitable interest of the offender’s mother who lived at the house and contributed to the repayment of the mortgage and other household expenses. 2 Ann-Marie Donaldson (the fourth interested party) is the mother of Beau Cochrane (the offender and respondent) and Zane Donaldson (the first interested party). Without intending any disrespect, I will refer to them by their first names consistent with the approach adopted at trial. 3 Ann-Marie and Zane claim that the Crown now holds Beau’s forfeited interest in the house subject to a constructive trust which recognises their substantial co-ownership share of the house. The Crown has not disputed that Zane has a significant co-ownership interest in the house but contests any ownership interest for Ann-Marie. 4 Briefly put, Ann-Marie and Zane allege that all three of them agreed to purchase the house from Ann-Marie’s former partner, Mr Fairclough, in one-third equal shares. The way they say this took place was that Beau and Zane obtained the loan from “Liberty” secured by a mortgage and jointly held the legal interest in the house as the registered proprietors; however, all three of them agreed to contribute in equal shares to the repayment of the mortgage. Ann-Marie claims to have had reasons for not being a registered legal owner associated with her not wishing her personal details to be registered on public records due to an earlier drive-by shooting she had experienced. Ann-Marie contributed to the repayment of the loan, initially as to a one-third share and then later, when Beau ceased contributing, as to one-half with Zane. Zane arranged the repayments to Liberty, with Ann-Marie regularly transferring money to his bank account. 5 The Crown disputed that there was such an oral agreement between the three of them. Even if there was an oral agreement, the Crown disputed it would be capable of creating a proprietary interest for Ann-Marie. The Crown challenged: (i) the existence of any co-ownership agreement or common intention; (ii) that the monies paid by Ann-Marie to Zane for repayment of a share of the mortgage were from her own funds; and (iii) the reasons alleged for Ann-Marie not being named as a registered owner on the title. The Crown also disputed claims Ann-Marie made about her having been gifted a portion of the house by Mr Fairclough and that she had funded the repayment of vendor finance given by Mr Fairclough to Zane and Beau. -- 5 of 48 -- [2026] SADC 13 2 6 As will become apparent, the principles applicable to the common intention constructive trust are relevant to determination of the disputed interests, with the key questions being: (i) whether there was a common intention between Beau, Zane and Ann- Marie that Ann-Marie would have an ownership interest in the house; (ii) if so, whether Ann-Marie relied upon that common intention to her detriment if she were now to be deprived of that co-ownership interest; (iii) if there is a common intention constructive trust favouring Ann-Marie, whether it arose prior to the forfeiture orders taking effect; and (iv) subject to determination of the above issues, what is the quantum of Ann-Marie’s interest in the house. 7 For the reasons that follow, I have decided that at the point of forfeiture a share of the house was held by Zane and Beau on a common intention constructive trust for Ann-Marie and the Crown’s interest in the house must be adjudged accordingly. Procedural background 8 On 30 August 2019 Beau was arrested for prescribed drug offences and on 6 December 2019 this court granted restraining orders over his assets, including the house. Beau was again arrested for prescribed drug offences on 23 April 2021, and a further restraining order was granted over his assets, including the house. 9 On 30 September 2022, Beau was convicted of prescribed drug offences. As such, pursuant to s 56A of the CAC Act, a forfeiture order was taken to be made which caused all property then owned by him, or subject to his effective control, to be forfeited to the Crown. At this time Beau and Zane were the registered proprietors of the house, held as joint tenants. 10 Pursuant to s 90(1)(a) of the CAC Act, property specified in the forfeiture order vests absolutely in the Crown at the time the order is made. In the case of deemed forfeiture under s 56A this will be the “conviction day”. Where property is registrable property, like the house in this matter, pursuant to s 90(2) of the CAC Act it vests in equity in the Crown pending registration. In this case, this vesting in equity transmogrified the joint tenancy into a tenancy in common.1 11 On 14 March 2024, pursuant to s 56B of the CAC Act, this court made a forfeiture declaration in terms which confined the relevant forfeiture to “the respondent’s interest” in the house. That order left begging the question as to what Beau’s forfeited interest in the house then was. The declaration was made on the condition that the Crown would require a grant of leave to realise its interest in that 1 PJ Butt, Land Law, 6th ed, Law Book Co, Sydney, 2010, pp 257-258 [1478]. Also see DPP (Vic) v Le [2007] HCA 52 at [100]. -- 6 of 48 -- [2026] SADC 13 3 property, being the house. An equivalent declaration was made in respect of the house in proceeding DCCIV-19-1162. I note that the Crown has undertaken to abide by any orders made in this matter in respect of the concurrent proceeding (DCCIV-19-1162). 12 On 8 April 2025, Zane and Ann-Marie brought their application seeking a declaration of their respective equitable interests in the house. A determination of their application will reveal the extent of Beau’s interest in the house which has been forfeited to the Crown, being the interest that the Crown will then need a grant of leave to realise. 13 The other parties to these proceedings, being Beau’s sister, Deanna Johnston (the second interested party), and the lender/mortgagee of the house, Secure Funding Pty Ltd (the third interested party – who also trades as “Liberty”), did not have an interest in the outcome of this application and were excused from attending the trial. I note that there was no suggestion that Liberty’s registered interest as mortgagee did not have priority to any of the interests in contest before me. 14 Beau did not wish to be heard on the application and was similarly excused from attending the trial, though he appeared as a witness for Zane and Ann-Marie. Summary of the parties’ submissions The interested parties’ case 15 Zane and Ann-Marie, have jointly brought an application seeking determination of their respective interests in the house. 16 They claim that Beau held only a very minor equitable interest, represented by the extent his contribution towards the mortgage repayments (being $10,400), and it is only that interest in the house that has been forfeited to the Crown. 17 Zane and Ann-Marie claim that on conviction day Beau and Zane held their legal interests in the house on a constructive trust for Zane and Ann-Marie as to “98-99” percent, and for Beau as to the balance (being, “1-2” percent). In the alternative, if Ann-Marie is found to not have any interest, they claim that Zane had an equitable interest as to “98-99” percent of the value of the house with Beau’s interest representing the balance. 18 At the heart of the claim by Zane and Ann-Marie is an oral tripartite agreement they allege was made between themselves and Beau, which originally provided for the house to be owned by all of them in equal one-third shares. They claim the agreement can be found by oral evidence and corroborating bank documents that support a finding that each of them financially contributed to repayment of the home loan. They say that this agreement was later reneged upon by Beau when he ceased contributing to the mortgage repayments causing each of Zane and Ann-Marie to then make a substantially greater financial contribution to the mortgage repayments. -- 7 of 48 -- [2026] SADC 13 4 19 In substance, their claim is that it would now be unconscionable for the Crown (standing in the shoes of Beau) to benefit as to a half ownership interest in the house given Beau’s disproportionate financial contribution to the repayment of the home loan. They contend they have each made a substantially greater financial contribution to the ownership of the house and this warrants the declaration of a constructive trust to reflect their proper interests. The Crown’s submissions 20 The Crown’s focus in these proceedings is with respect to Ann-Marie’s claim to an ownership interest in the house. The Crown contends that there was no enforceable agreement between Ann-Marie and her sons, there was no equitable lien held by Ann-Marie, and there was no constructive trust which would give her an equitable interest in the house. The Crown maintains that the matters Ann- Marie relies upon do not give rise to a constructive trust “capable of being recognised as an equitable interest secured by the [house]”. 21 I did not understand the interested parties to be claiming that there were any enforceable contractual rights between Ann-Marie and her sons, or that she held an equitable lien over the house. Though it was given some emphasis in the closing submissions of the parties, I understood Ann-Marie also to have conceded that it would not be open for me to find the existence of a resulting trust in her favour. The focus of the contest as far as Ann-Marie’s claim is concerned falls to be determined by whether a constructive trust in her favour can be construed from the facts as I find them. 22 The Crown contended that unconscionability had no role to play under the forfeiture provisions of the CAC Act, as a statutory forfeiture regime. The Crown contended that the regime did not countenance the Crown acting unconscionably by virtue of property being forfeited pursuant to the CAC Act. Counsel for the Crown pointed to: • sections 61 and 62 of the CAC Act, which deal with compensation to third parties who have been disadvantaged by virtue of an order of forfeiture; • section 59B of the CAC Act, which provides for exclusion of forfeited property where it is not in the public interest for the property to be forfeited; and • section 47(4) of the CAC Act, which deals with hardship caused by the making of a forfeiture order (including via deemed forfeiture). 23 I understood the Crown to be contending that these mechanisms would necessarily prevent any finding, if it were otherwise available to me, that the Crown could be found to have acted unconscionably by virtue of the operation of the statutory forfeiture regime. In this regard, there may have been some confusion about the need for me to find that the Crown (standing in Beau’s shoes) acted unconscionably in order to find that Ann-Marie has an interest in the house. As -- 8 of 48 -- [2026] SADC 13 5 will become clear, the requisite unconscionability to be established is not any prior “unconscionable conduct” on the part of the Crown (or Beau); the relevant unconscionability is merely recognition that in equity, it would be unconscionable for a legal owner to deny the beneficial interest of another.2 This unconscionability condition is sometimes referred to as the third condition necessary to find a constructive trust (see paragraph 45 below). As such, I do not consider the application gives rise to any tension with the forfeiture provisions of the CAC Act pointed to by the Crown. Further, I did not consider the facts or law in Flying Fighters3 to be relevant to this because that case concerned the construction and application of provisions of the Proceeds of Crime Act 2002 (Cth) to a different factual context where forfeited property had been on-sold. The matter before me concerns whether Ann-Marie has a pre-existing interest in the house such that it would not be subject to the deemed forfeiture that occurred in September 2022. Therefore, despite the forfeiture provisions of the CAC Act needing to be strictly applied, they only operate in respect of Beau’s interest in the house. 24 As to Zane’s interest, the starting point for the Crown was that the Crown does not contest Zane’s interest in the house to the extent of his 50 percent legal ownership and as a “joint tenant at law” but notes he has an onus to establish any greater interest in equity on the balance of probabilities. Ultimately, however, I understood the Crown to concede that Zane’s interest in the house would be determined having regard to the “differing contributions to the ongoing maintenance and ownership of the property by [he and Beau]”. The extent to which Zane’s equitable interest exceeds his legal moiety (or half-share) interest is necessarily entangled with the extent of any beneficial interest that he and Beau hold for Ann-Marie. As mentioned, Zane supported Ann-Marie’s claim and it is only necessary to consider Zane’s claim as to a “98-99” percent interest on his own account if her claim fails. Ultimately, it was unnecessary for me to consider Zane’s alternative claim because I determined that Ann-Marie did have a co-ownership interest. 25 The focus of the Crown’s case at trial was to contest Ann-Marie’s claim, and these reasons therefore take on a similar focus. Given the Crown’s submissions, it was my impression that the Crown would have conceded a significant ownership interest for Zane. Ultimately, this became apparent in the terms of the further written submissions filed by the Crown following the close of trial. The Crown accepted Zane’s financial contribution represented 89 percent of the total contributions to the mortgage repayments; also accepting Beau’s contribution was only nine percent. 2 Lewin on Trusts 20th ed. (2020) Vol. 1 at [8-010]. 3 Commissioner of the Australian Federal Police v Hart; Commonwealth of Australia v Yak 3 Investments Pty Ltd, Commonwealth of Australia v Flying Fighters Pty Ltd (2018) 262 CLR 76. -- 9 of 48 -- [2026] SADC 13 6 Legal principles Property law 26 On conviction day Beau’s one-half interest as the legal owner of the house vested in the Crown. It is uncontroversial that the Crown has, as a matter of law, an interest in the house that has vested in equity pending registration of its tenancy in common with Zane. 27 Section 69 of the Real Property Act 1886 (SA) provides for the indefeasibility of the title of a registered proprietor other than where there has been fraud, forgery or certain other prescribed events. 28 The Crown has not yet perfected its interest, and has refrained from seeking registration of its legal interest, pending the outcome of this matter. Nothing turns on this as it was accepted by the parties that whatever Beau’s ownership interest in the house was on conviction day, it had been forfeited to the Crown. 29 Notwithstanding s 69 of the Real Property Act, s 71 of that Act operates to save certain rights and powers of other persons. Relevant to this matter, s 71(e) provides: 71—Saving of certain rights and powers Nothing in the two preceding sections contained shall be construed so as to affect any of the following rights or powers, that is to say— … (e) Trusts the rights of a cestui que trust where the registered proprietor is a trustee, whether the trust shall be express, implied, or constructive; … provided that no unregistered estate, interest, power, right, contract, or trust shall prevail against the title of a registered proprietor taking bona fide for valuable consideration, or of any person bona fide claiming through or under him. 30 Ultimately, the main issue in this matter arises from the potential operation of s 71(e) as to the extent to which, if any, the Crown (standing in the shoes of Beau) holds its legal moiety interest (half-share) in the house on a constructive trust for Ann-Marie and Zane. 31 It is also noted that the application of s 29(1) of the Law of Property Act 1936 (SA), which stipulates that no interest in land can be created or disposed of except -- 10 of 48 -- [2026] SADC 13 7 in writing, is similarly subject to the creation or operation of resulting, implied, or constructive trusts.4 32 Ann-Marie’s claim depends upon the existence of a constructive trust, so that the absence of writing creating the interests in the house which she asserts will not be fatal to her claim. Similarly, Zane’s alternative claim for an interest extending beyond his legal interest relies upon the recognition of a constructive trust. Equitable trusts 33 Ann-Marie’s entitlement to relief, in the form of a declaration of a constructive trust, relies upon a finding that it would be unconscionable, in accordance with established equitable principles, for the legal owners of the house to exercise their common law rights of ownership and deny her interest. The principles generally justify equitable intervention in cases where the contribution to the acquisition of the property by the party seeking relief is such that, in the circumstances, good conscience requires the ownership of the property, as between the parties, be treated as having effect in a way that diverges from the incidents of ownership that are recognised by the common law.5 Resulting trusts 34 Resulting trusts are a form of equitable trust. The creation of a resulting trust is recognised by equity where the funds for the acquisition of property are not provided exclusively by the party who becomes the owner at common law, or where the proportions in which those funds are provided by multiple owners differ from the proportionate common law ownership.6 For the presumption to apply the money must have been provided by the purchaser in their character as a purchaser and not, for example, as a lender.7 35 The extent of Ann-Marie’s claim to a resulting trust is limited to the amount she is found to have contributed to the purchase price of the house; any contributions she made to repaying the home loan do not constitute a contribution towards the purchase price and do not give rise to a resulting trust.8 Ann-Marie did not strenuously put her case as one where it would be open for the court to recognise a resulting trust.9 Ultimately, I have not found that Ann-Marie made any direct contribution to the purchase price of the house and it was appropriate for her counsel to concede the law (and also the facts) being against his client in that regard. 4 Section 29(2) of the Law of Property Act, 1936 (SA). 5 Lewin on Trusts at [8-010]. 6 Calverley v Green (1984) 155 CLR 242 at 247; Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd (2005) 79 ALJR 550 at [24] (Gleeson CJ and Callinan J). 7 Calverly v Green at 246. 8 Jain v Amit Laundry Pty Ltd [2019] NSWCA 20 at [89] and [97] (Bathurst CJ, Beazley P and White J) citing Calverley v Green at 257 – 258 (Mason and Brennan JJ). 9 T173.29-32; 186.21-36; T187.9-15. -- 11 of 48 -- [2026] SADC 13 8 Did Ann-Marie contribute to the purchase price? 36 An issue arose during the course of the trial concerning whether Ann-Marie might have contributed to the acquisition of the house by reference to a gift of $30,000 from Mr Fairclough (her former partner) who formerly owned the house. Ann-Marie gave evidence that Mr Fairclough had essentially gifted her $30,000 by leaving it as part of the purchase price. Ann-Marie said Mr Fairclough “left another $30,000-odd in there because of [her] interest in the property”.10 I understood that what Ann-Marie meant by this was that the house was actually worth $30,000 more than the purchase price paid and that component was attributable to Ann-Marie from the outset. Ultimately, I was not satisfied that there was sufficient evidence to support Ann-Marie’s claim that she had essentially contributed to the purchase price of the house to the extent of this alleged gift of $30,000. Mr Fairclough was not called to give evidence and the gift was not corroborated by any other evidence, including there being no evidence about the market value of the house exceeding the purchase price of $550,000.11 37 Ann-Marie also claimed that she had made an indirect contribution to the purchase price of the house by funding the repayment of the vendor finance component of the purchase price; essentially a loan from Mr Fairclough to Zane and Beau of $25,000. Ann-Marie gave evidence that in addition to the loan from Liberty to purchase the house as to “95%”, Mr Fairclough – through his company “Courtina Pty Ltd” – provided vendor finance to Zane and Beau in the amount of about $25,000.12 By early 2020, the recovery of this loan repayment had escalated to Magistrates Court proceedings issued by Mr Fairclough’s company against Beau and Zane. By that time the claim was for an amount of $30,553.89 plus court and legal fees.13 Ultimately, I am satisfied that Dr Cook (Ann-Marie’s partner) repaid Courtina on 17 February 2020,14 though Ann-Marie claims she then reimbursed Dr Cook for that sum.15 The Crown disputes Ann-Marie’s claim as to reimbursing Dr Cook. 38 Dr Cook gave evidence that he was aware that a vendor finance loan had been provided to Beau and Zane of “about 25 grand, and interest accrued over a period of time”.16 Dr Cook said that he loaned the money to pay back this debt and by that time it was about $30,000; he understood from Ann-Marie that it was to do with “getting the caveat off the title”.17 He said he could not recall whether he loaned the money to Ann-Marie or her sons, but he recounted that “the essence of 10 T49.7-15 and T49.16-19. 11 Noting that the loan from Liberty was about $522,500 with a security value of $525,000, and there was a separate vendor finance component in the order of $25,000, which reflected a purchase price of $550,000. 12 T49.7-15; Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024) at [8] and annexures AM-5 and AM-6. 13 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexure AM-5). 14 Ibid at [8] and annexure AM-7. 15 T50.1-5. 16 T120.7-11. 17 T120.17-28. -- 12 of 48 -- [2026] SADC 13 9 it was that [he] loaned [the money] to Ann-Marie because she told [him] that there was a caveat on the title and she wanted to get rid of it”.18 He said he thought he had been repaid by Zane,19 and later (seemingly lead by a question in cross- examination) he said it was repaid by Beau.20 In cross-examination, Dr Cook also said that the loan was “really to Zane, because he was the one on the title” and he had spoken to Zane about the loan.21 Subsequent to Dr Cook giving this evidence an affidavit was tendered (without objection) to correct his recollection of who had repaid him; he confirmed it was Ann-Marie who had actually repaid him and not Beau or Zane.22 His affidavit attached an extract of a transaction search from his bank statements showing three separate payments totalling $35,000 made to his “Personal Private Account” on 3 January 2023, with the following narrations: DEPOSIT-OSKO PAYMENT [number] ANN-MARIE DONALDSON Part payment 31 Dec 2022 $10,000.00 DEPOSIT-OSKO PAYMENT [number] ANN-MARIE DONALDSON Part payment 01 JAN 2023 $10,000.00 DEPOSIT-OSKO PAYMENT [number] ANN-MARIE DONALDSON Final payment from Zane and I 30K r 02 JAN 2023 $15,000.00 39 While the need for correction of his earlier oral evidence may have diminished the reliability of Dr Cook’s evidence generally, it did not cause me to find him to be other than an honest witness who had not expected to be questioned about the details of financial transactions occurring several years prior. Ultimately, I was satisfied as to the truthfulness of his corrected evidence and find that Ann-Marie did reimburse him the amount in respect of the repayment of the vendor finance loan. That said, the repayment of the vendor finance loan would not be sufficient to give rise to a resulting trust, though I have had regard to it in determining whether Ann-Marie acted to her detriment - an issue which I come to below. Constructive trusts 40 Ann-Marie’s application was pressed more strenuously as one where it was available for the court to find that there was a factual foundation giving rise to a constructive trust.23 Despite a degree of confusion in submissions made by the parties as to the specific kind of constructive trust being pressed, I understood the species of constructive trust which Ann-Marie and Zane contended applied was a “common intention constructive trust”. 18 T120.31-34. 19 T121.1-5. 20 T126.1-12. 21 T123.14-24. 22 Exhibit IP4.3 (J Cook Affidavit of 28 April 2025) at [10]-[13]. 23 T173.33-T174.10. -- 13 of 48 -- [2026] SADC 13 10 41 While there may have been some elements in the evidence directed to the notion of a “joint enterprise” or “joint endeavour” constructive trust of the kind recognised in Muschinski v Dodds and Baumgartner, I considered the facts revealed a common intention constructive trust. For a joint enterprise or joint endeavour constructive trust, the trust is imposed to prevent unconscionable conduct upon the breakdown or failure of the joint enterprise or endeavour (often in the context of a de facto relationship), rather than being based upon the intentions of the parties.24 Potentially, the assertion by Ann-Marie that Beau left the house and then “reneged” on the agreement to contribute to the mortgage repayments in equal one-third shares could be a basis for finding a breakdown or failure of some form of joint endeavour in the context of a Muschinski v Dodds constructive trust.25 The manner in which the funds for the repayment of the mortgage were essentially pooled in Zane’s bank account might also point to this form of joint endeavour trust. In the end, I was satisfied that the evidence revealed the existence of a common intention constructive trust and it was unnecessary for me to separately consider other forms of constructive trusts which might have been open for me to find. Common intention constructive trust 42 The authors of Lewin on Trusts (20th ed) describe the common intention constructive trust in the following terms (emphasis added):26 Where the purchaser of property shares a common intention with the claimant that the claimant is to have a beneficial interest in the property even though he is not a legal owner, either at the time of acquisition or at a later date, and the claimant acts to his detriment upon the basis of the common intention, a trust is imposed so as to give effect to the common intention. This is now universally known as the common intention constructive trust. … The common intention trust is now seen as constructive, imposed in order to provide relief against an unconscionable denial by the legal owner of the beneficial interest of another. 43 A common intention constructive trust arises upon a claimant being induced to act to their detriment, by an agreement or common understanding with the legal owner of the property. It does not rely upon there being any binding agreement between them. In the fifth edition of his text, Trust Law in Australia, Professor Ong describes a common intention constructive trust in the following terms:27 It is of the first importance to recognise that in this species of constructive trust the common intention, common understanding, arrangement or agreement between the owner of the legal title and the claimant of the beneficial title is not enforced as an agreement between them, but it is enforced as the avoidance of the detriment which the beneficial claimant would otherwise suffer as a result of his reliance on the legal owner’s inducement to him, 24 NSW Trustee and Guardian v Togias (2022) 406 ALR 254 at [133] (per Basten AJA). 25 I would also have needed to be satisfied that Beau leaving the house and ceasing to contribute to the mortgage repayments was sufficient to amount to the removal of the substratum of a joint relationship or endeavour per Baumgartner. As I understood the facts there was not a relationship breakdown between the family members of the kind typically founding a Muschinski v Dodds or Baumgartner constructive trust. 26 Lewin on Trusts at [10-053]. 27 D S K Ong, Trust Laws in Australia, 5th ed, Federation Press, 2018 at 629. -- 14 of 48 -- [2026] SADC 13 11 an inducement of which the agreement between the parties is merely probative. If the claimant has not been induced to act on the basis of the oral agreement, then the oral agreement, as a mere oral agreement, cannot be enforced for lack of written evidence thereof. Calling this oral agreement a common intention, instead of identifying its specific relevance as a potential inducement offered by the legal owner of the property to the potential equitable claimant, does not alter its specific relevance and does not give it the efficacy of a binding agreement. 44 In Australia, it now seems reasonably well settled law that the court will construe a common intention constructive trust where:28 (i) there is an actual or inferred common intention of the parties as to their beneficial interests in the property either at the date of acquisition or at a later time (which might also be referred to as the “inducement” element); and (ii) there has been detrimental reliance on that common intention by the claimant (which might also be referred to as the “detrimental reliance” element because the claimant has acted on the inducement). 45 There is a possible third element for construing the existence of a common intention constructive trust; being that it would be an equitable fraud on the claimant for the other party to assert that the claimant had no beneficial interest in the property.29 However, it has also been said that if the claimant can show that they have acted to their detriment in reliance on the agreement or common intention, this third element will be satisfied since, in circumstances where a claimant has acted to their detriment in reliance on the expectation of the commonly intended beneficial interest, it will usually be a fraud on the claimant for the legal owner to deny that beneficial interest.30 In the closely aligned area of proprietary estoppel the High Court has referred to this aspect as making it “unconscionable” for the promisor to resile from his or her promise.31 However, there would seem to be a less stringent test applied to the requirement of detriment for a common intention constructive trust.32 The stringency of the test is not in issue before me given the facts of this case. 28 Chiarieri & Anor v Morphett [2025] SASC 162 at [315] (Stein J, as her Honour then was) and the authorities therein cited. For other South Australian authorities also see Glouftsis v Glouftsis (1987) 44 SASR 298 (White, Legoe and Johnston JJ) and Roberts v Eckert [2016] SASC 197 at [55] – [58] (Hinton J) and approved on appeal in Eckert v Roberts [2017] SASCFC 176 at [59] (Nicholson J with Kourakis CJ and Stanley J agreeing). 29 Hohol v Hohol [1981] VR 221 (O’Bryan J); Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413 at [402] (McMillan J). 30 Rasmussen v Rasmussen [1995] 1 VR 613 at 615 (Coldrey J); Sobey v Sobey (2014) 15 ASTLR 61 at [45] (Almond J). 31 Sidhu v Van Dyke (2014) 251 CLR 505 at 523 [58]. 32 Secretary, Department of Social Services v Hulett [2025] FCA 23 at [40] (Derrington (Sarah) J), citing with approval: Bassett v Cameron [2021] NSWSC 207 at [564] (per Ward CJ (in Eq)); Koprivnjak v Koprivnjak [2023] NSWCA 2 at [24] (Griffiths AJA). -- 15 of 48 -- [2026] SADC 13 12 46 Justice Stein (as her Honour then was) recently affirmed the application of these principles in South Australia. In Chiarieri & Anor v Morphett, her Honour said:33 A common intention constructive trust arises when two or more people share a common intention that the applicant is to receive an interest in property owned by another and the applicant acts to his or her detriment on the basis of that common intention.34 The basis for a common intention constructive trust is detrimental reliance by the applicant upon an actual or inferred common intention concerning the applicant’s beneficial interest in property.35 Some authorities also refer to a requirement to establish that it would amount to equitable fraud on the applicant to deny his or her interest in the property.36 47 As long ago as 1987, in Glouftsis v Glouftsis,37 the Full Court also recognised the principles governing common intention constructive trusts to apply in South Australia. In that case the court found a common intention constructive trust in the context of a familial setting where five brothers had contributed unequal amounts, extended over different periods, to the purchase and discharge of mortgage liabilities of a house they had all lived in from time to time. 48 The principles governing the common intention constructive trust have also recently been confirmed in other Australian superior courts.38 I note that reservations have been expressed about whether the doctrine of the common intention constructive trust continues to survive in Australia given its principles overlap with those of proprietary estoppel.39 The raft of recent authorities applying the common intention constructive trust principles demonstrate that its recognition in Australia as a separate doctrine continues. Recently, Leeming JA applied the principles of a common intention constructive trust in Samawi v Faraone notwithstanding the reservations he had expressed earlier in Bijerk Investments Pty Ltd v Bikic.40 49 Determining whether evidence presented establishes the existence of a common intention constructive trust is guided by the following principles drawn from the authorities: 33 Chiarieri & Anor v Morphett at [315]. 34 Galati v Deans [2023] NSWCA 13 at [53] (White JA) citing Grant v Edwards [1986] Ch 638 at 646-647 (Nourse LJ), 651-2 (Mustill LJ agreeing); Green v Green (1989) 17 NSWLR 343 at 354-6 (Gleeson CJ, Priestley JA agreeing at 370); Maharaj v Chand [1986] AC 898 at 907; Shepherd v Doolan [2005] NSWSC 42 (White J). 35 King v Fister [2022] QCA 47 at [25] (Davis J, Sofronoff P agreeing at [1], Mazza AJA agreeing at [2]). 36 Ibid at [26] quoting from Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413 at [402] (McMillan J). 37 Glouftsis v Glouftsis (White, Legoe and Johnston JJ). 38 See for example: Secretary, Department of Social Services v Hulett (Derrington (Sarah) J); Galati v Deans at [53]-[60] and [148]-[149]; Silvia (Trustee) v Williams [2018] FCAFC 194 at [13] – [18]; and Samawi v Faraone [2025] NSWSC 970. 39 Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 at [116] – [119] per (Leeming JA). 40 Samawi v Faraone [2025] NSWSC 970 at [228] (Leeming JA). -- 16 of 48 -- [2026] SADC 13 13 1. A common intention may be shown by virtue of an express agreement between the parties or by inference.41 Importantly, it is distinct from an intention to create contractual relations.42 2. The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law.43 3. Intention can be inferred from conduct.44 Intention may also be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying of a mortgage or the payment of expenses which free up funds for that purpose.45 This is a wider enquiry than whether a contribution was made to the purchase money such as to give rise to a presumption of a resulting trust. Whilst both enquiries address the inferences to be drawn as to the parties’ actual intentions, a contribution to the purchase price creates a presumption of beneficial ownership in the proportion which the amount contributed bears to the price. In the case of ‘the common intention’ constructive trust there is no presumption that the beneficial interest is in proportion with the contribution of the purchase price.46 4. Conduct may be both evidence from which an intention that the claimant have a beneficial interest can be inferred and evidence of the act of detrimental reliance.47 5. A common intention constructive trust may arise after the acquisition of the property in question if the evidence establishes that the relevant common intention was formed at some later time. The nature of the common intention may also change from time to time but that change will not be established merely from proof of proportionate changes in the contributions made by the parties.48 The changes must occur according to the same principles as those upon which a constructive trust may arise for the first time.49 Where the parties agreed or intended that they should vary their beneficial interests in the property, and one party acted to their detriment, then their beneficial interests could change during the course of the relationship. It may be possible to infer such an agreement or intention from what the parties did as well as what they said. The parties’ later 41 Lewin on Trusts [10-066]. 42 Stavrianakos v The State of Western Australia [2016] WASC 64 at [235], [243] (Tottle J). 43 Allen v Snyder [1977] 2 NSWLR 685 at 691 (Glass J with Samuels JA agreeing at 695); Green v Green at 355 (Mahoney JJA). 44 Shepherd v Doolan [2005] NSWSC 42 at [37] (White J). 45 Ibid at [38] (White J). 46 Ibid. 47 Green v Green at 355 (Mahoney JA). 48 Bassett v Cameron at [34] (Ward CJ in Eq.). 49 Pettitt v Pettitt [1970] AC 777 at 816 (Lord Reid). -- 17 of 48 -- [2026] SADC 13 14 conduct may also provide a basis for inferring their intentions at the time the property was acquired.50 6. An excuse for legal title not being reposed in the name of a beneficiary may be taken into account by the court as direct evidence of a common intention that the claimant is to have a beneficial interest.51 7. A common intention that beneficial ownership be shared will, in the case of property vested in one legal owner, easily be inferred where there is a direct financial contribution by another to the purchase price, which will include undertaking a liability to pay the mortgage and significant contributions on improvements of the property, as well as contributions to an initial deposit or expenses of purchase, and regular contributions towards mortgage instalments.52 8. The difficulty for the court in finding a common intention constructive trust is discerning what the parties commonly intended to result from their dealings with the property and not merely imputing intention to secure a just outcome.53 9. It is not necessary that the common intention be that the parties have a specific share of the property; it is sufficient that they intend the claimant should have a beneficial interest or some form of proprietary interest.54 10. The quantum of the claimant’s beneficial interest will be that which the parties agreed upon or intended, if that can be established.55 If the evidence does not permit of a finding as to the precise size, nature and extent of the beneficial interest the parties intended the claimant to have, one starts with the maxim that equality is equity.56 11. It is also necessary to establish detriment or material disadvantage beyond disappointed expectation.57 The relevant detriment that must be established is that which would flow from the change of position if the assumption were deserted that lead to it.58 50 The onus is on the party alleging that the beneficial ownership of the property in question is different to the legal ownership to show why.59 In this case the onus 50 Ibid at [45] (White J). 51 Grant v Edwards; Lewin on Trusts [10-065] and the authorities referred to at footnote 283. 52 Lewin on Trusts [10-066] and authorities cited at footnotes 290 to 294. 53 Hohol v Hohol [1981] VR 221 (O’Bryan J). 54 Green v Green at 355, 356 (Mahoney JA); Shepherd v Doolan at [36] (White J). 55 Shepherd v Doolan at [41] (White J). 56 Ibid at [42] (White J); Green v Green at 355 (Mahoney JA). 57 Green v Green; Higgins v Wingfield [1987] VR 689 (Murray, McGarvie and Marks JJ). 58 Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 674-5 (Dixon J); Sidhu v Van Dyke (2014) 251 CLR 505 at 511 (French CJ, Kiefel, Bell and Keane JJ). Secretary, Dept of Social Services v Hulett at [8] (Derrington (Sarah) J). 59 Lewin on Trusts [10-062]. -- 18 of 48 -- [2026] SADC 13 15 is therefore on Ann-Marie to establish either: (i) an express agreement with her sons that she was to have an interest; or (ii) conduct from which the necessary common intention can be inferred as a matter of fact. Similarly, to the extent that Zane presses for an alternative finding that he holds a beneficial interest beyond his legal half share, he also bears the onus of establishing either an express agreement or conduct from which the necessary common intention can be inferred. 51 Once common intention is found then the acts of detrimental reliance are not subject to a stringent test and any acts which flowed from the holding out of an interest can qualify as detrimental reliance; they do not need to be inherently referable to the house.60 The burden then lies on the legal owner (in this case the Crown) to show that there was no such detrimental reliance. 52 Before commencing to address the key questions in this case, for completeness, I mention the decision of this court in Kendle v Lee & Anor,61 which the Crown urged me to follow. Having had careful regard to the facts and reasons for decision in that case, I consider it to be a materially different case to the one before me. Ultimately, in that case, the court did not find any agreement to transfer any legal interest or grant any beneficial interest in the property to the plaintiff; the arrangement was instead characterised as a “tenancy agreement for an undefined term, by which the plaintiff had the right to occupation of the property, and in return paid the mortgage payments and outgoings”.62 Further, the court was not satisfied that there was detrimental reliance because the plaintiff (being the sister of one of the defendants) “derived a greater benefit from occupying the property than she had expended”.63 The court made broad statements of legal principle concerning the circumstances that give rise to a constructive trust but did not delve into the principles governing a common intention constructive trust as I have outlined above.64 I respectfully suggest this was a sensible approach in that case given that the court did not find any agreement or common intention between the plaintiff and the defendants, other than to allow the plaintiff to “rent the property”.65 In my view, the facts of the case now before me call for a different approach. General observations about the evidence and witnesses Witnesses 53 The Crown did not call any witnesses and relied upon the affidavits of police officers: Mark Hanssen and Christine Vu.66 The Crown also tendered the sentencing remarks of Judge Kudelka in relation to the handing down of Beau’s sentence for the relevant offences.67 The Crown noted that Beau’s sentence had 60 Bassett v Cameron at [564] (Ward CJ in Eq) citing Sir Nicolas Browne-Wilkinson VC in Grant v Edwards. 61 Kendle v Lee & Anor [2011] SADC 141 (Soulio DCJ). 62 Ibid at [96]. 63 Ibid at [83] and [97]. 64 Ibid at [75] – [77] and [80]. 65 Ibid at [84]. 66 Exhibits A1 and A2. 67 Exhibit A3. -- 19 of 48 -- [2026] SADC 13 16 taken into account the confiscation of his assets. Nothing turns on this for the purposes of this matter because the Crown has accepted that in respect of the forfeiture of the house, it is only Beau’s interest that has been forfeited. The Crown’s evidence was not challenged. 54 Zane, Ann-Marie, Beau and Ann-Marie’s partner, Dr Cook, were all called as witnesses for Zane and Ann-Marie. Affidavits of Zane, Ann-Marie and Dr Cook were also tendered and admitted into evidence.68 All of the witnesses were cross- examined. 55 The pivotal evidence in this case concerns the alleged oral agreement between Ann-Marie, Zane and Beau. The burden is upon Ann-Marie and Zane to establish an oral agreement for co-ownership of the house – whether by express statement or inferred from conduct. In considering their evidence, I am mindful that this case differs from the usual cases concerning common intention constructive trusts, where the parties to an alleged oral agreement are typically on opposing sides and will then test one another’s recollections about conversations and events relevant to making any finding as to common intention. In this case the oral evidence was principally concerned with conversations and motives within the context of a family setting and was not readily disposed to contradiction. For these reasons I placed considerable reliance upon the contemporaneous documents, particularly the bank statements of Zane and Ann-Marie, noting that conduct may be a sufficient basis from which to infer intention. 56 I am also mindful that much of the key evidence of the witnesses was of events that took place in 2016 and the years immediately following. Putting to one side the documentary evidence relating to the purchase of the house, the loan application and approval forms, and the bank statements, much of the oral evidence took the form of memories of conversations and events occurring eight to nine years prior to the trial. I am mindful of the corrosive effects that the passage of time and self-interest have on human memory, and note a risk that witnesses who are also parties may reconstruct events, consciously or subconsciously, in accordance with their perception of where their interests lie; and I accept this may be particularly evident when witnesses are asked to give an account of their motives for acting or not acting in a certain way. These matters caused me to scrutinise the evidence of the witnesses very carefully. 57 Having regard to these matters I recognise that care needs to be taken in how I treat Ann-Marie’s evidence, particularly any recounting of conversations, even where Ann-Marie is striving to be truthful (which I accept to be the case). In weighing her evidence, I look to corroborating, objective contemporaneous evidence and the objective probabilities. 58 I note also that although Zane might have been viewed as a witness with a self-interest in the proceedings, his evidence tended to support his mother’s claim 68 Exhibits IP1.1; IP4.1; IP4.2; and IP4.3. -- 20 of 48 -- [2026] SADC 13 17 and not his own interests. The Crown conceded that Zane’s beneficial interest in the house at least matched his moiety (half-share) legal interest. It must have been obvious to Zane that if Ann-Marie were found to have a beneficial interest (as to one-third or more, as she claimed had been agreed with him) then any claim he had for a beneficial interest in excess of his legal interest would be adversely affected. Thus his claim for an interest exceeding 98 percent was framed as being made in the alternative if Ann-Marie’s claim failed. The Crown had conceded that Zane’s equitable interest was likely to be greater than Beau’s due to Zane’s greater contribution to the mortgage payments. As such, it was despite his own personal interests in seeking a greater than 50 percent share of the house, that Zane gave evidence in support of his mother’s claim. This did not cause me to treat Zane’s evidence with any less scrutiny, as it is reasonable to assume a son may seek to assist his mother despite his own interests. 59 I also held similar reservations about Beau’s evidence. This caused me to carefully consider it was obvious that Beau would be motivated to assist his mother’s claim against the Crown in circumstances where his interest had been forfeited and he could not personally gain any benefit from the proceedings. 60 I also note that Beau gave his evidence via audio visual link from prison. It was clear to me that he had not been primed or otherwise directed as to his evidence because he could not give any detailed account of matters and because his evidence differed to that of Ann-Marie and Zane. My impression was that Beau was a truthful witness, though he did not seem to have a good memory of the details of events surrounding dealings with the acquisition of the house and he had only a vague recollection about the details of the mortgage repayments. To my mind, this made his evidence less reliable than that of Ann-Marie and Zane. 61 I have already addressed in some detail Dr Cook’s evidence in relation to the repayment of the vendor finance loan. He also gave evidence about cash payments he made to Ann-Marie while she worked for him, or assisted him, during parts of the relevant period. As Ann-Marie’s partner, I accept he would be motivated to support her claim, however, I found him to be a credible witness who made an effort to remember events as best he could and to explain his recollection to the court. As mentioned, he did not necessarily have a memory for the details of transactions (for example, amounts and dates) when giving his evidence but he was later able to produce documentary records to account for such gaps. This is understandable in the circumstances of these not being his personal family affairs, and instead being those of Ann-Marie and her sons. 62 The Crown contended that the evidence given by the witnesses was ambiguous and in terms that were too general to support the existence of any agreement between them, particularly in a family context. I address those matters when considering the inducement element below. Though the Crown challenged the credibility of the witnesses during cross examination, I did not understand the Crown to ultimately contend that I should find any of the witnesses to have been dishonest in giving their oral evidence. -- 21 of 48 -- [2026] SADC 13 18 Documentary evidence Bank statements 63 A series of bank statements appeared in the voluminous annexures to Ann- Marie’s affidavit.69 It was not in dispute that Zane paid instalments for repayment of the home loan from his own bank account. Such repayments were evident from the debit entries on his bank statements which appeared annexed to Ann-Marie’s affidavit.70 Those statements for the period from September 2016 to March 2022 generally reveal weekly direct debit entries from Zane’s account to “SECURE FUNDING” (being a reference to the home lender, Liberty) for the following periods: - from September 2016 - $772.34; - from January 2017 - $784.80 (save for one entry on 7 June 2018 for $810.00); - from mid-June 2018 - $500; - from September 2018 - $796.97; - from 11 March 2019 - $810.23 (save for one entry on 29 March 2019 for $835.23); and - from 24 June 2019 - $790.11. 64 The bank statements for Ann-Marie’s Commonwealth Bank account covering the period 29 July 2016 to 28 October 2021 also reveal reasonably regular debit entries reflecting transfers made towards the repayment of the Liberty mortgage for the house.71 In respect of the period from 5 November 2021 to 27 October 2023, a summary of these same kinds of transfers to Zane’s bank account also appears to have been generated from her banking records.72 The precise terms of the narrations for these transactions were not always the same, but they often noted: “Transfer to CBA A/c CommBank app Liberty” or “Transfer to CBA A/c CommBank app Liberty mortgage”. 65 I explore further aspects of these transfers below, but I have accepted that they represented contributions made by Ann-Marie towards the mortgage repayments for the Liberty home loan throughout the period from 29 July 2016 to 27 October 2023. Importantly, these transactions corroborate Ann-Marie’s oral evidence that she made substantial financial contributions towards the mortgage repayments for the house. The cash deposits made to her account to fund the mortgage repayments, which are also apparent in her bank statements, were explained by the evidence of both Ann-Marie and Dr Cook, and for reasons which 69 Exhibit IP4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexures AM-13 to AM-45). 70 Exhibit IP4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexures AM-33 to AM-45). 71 Exhibit IP4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexures AM-13 to AM-32). 72 Exhibit IP4.1 (A-M Donaldson Affidavit of 1 March 2024 – annexures AM-12). -- 22 of 48 -- [2026] SADC 13 19 I set out below (including at paragraphs 131 to 135), I am satisfied that Ann-Marie funded those repayments from her own monies. 66 These findings are further supported by the series of bank statements for Zane’s bank account covering transactions for the period from September 2016 to 31 March 2022.73 These statements showed a pattern of credit entries generally consistent with banking transfers from Ann-Marie; the statements for the earlier period often showed credit entry descriptions from an account ending in xx8189 (being consistent with Ann-Marie’s bank account number), and for later entries the description was often in more explicit terms: “Transfer from ANN_MARIE DONAL CommBank Liberty mortgage”. Some entries were also consistent with Ann-Marie having made a direct cash deposit from an automatic teller machine at Marden, consistent with the evidence given by Dr Cook that he withdrew cash after work at the Marden shopping centre and gave it to Ann-Marie. The sums transferred or deposited during the earlier period (prior to mid-2017) were regularly $260 (or a larger sum divisible by $260), an amount which is consistent with a one-third contribution to the mortgage repayments during that earlier period. Subsequently, the amounts contributed by Ann-Marie on a generally weekly pattern increased to $400, then representing about half of the mortgage repayments being made by Zane. 67 In Zane’s evidence, he explained a summary of entries extracted from his bank account as revealing one-third of the mortgage payments made from Beau’s account to his own bank account, being $260 per week for a period from 16 September 2016 to 16 June 2017.74 It is apparent that each of these entries was extracted from Zane’s bank statements, with a pattern of entries of either $260 or $310 described as “Transfer from BEAU COCHRANE CommBank app house”.75 This evidence was consistent with Beau’s oral evidence that he contributed to the mortgage for a short time while he was living at the house. The total sum of these payments said to represent contributions by Beau to the mortgage repayments for the house was $10,400. An additional sum of $1,400 was explained by Zane to represent repayments to him from Beau for a television and phone which Zane had purchased for Beau.76 I am satisfied that Beau made contributions to the mortgage repayments in the sum of $10,400 from September 2016 to mid-2017. 68 In view of these contemporaneous records, and supported by the oral evidence, I find that Zane funded the mortgage repayments from his own monies and also from contributions made from Ann-Marie (initially as to one-third, but later as to about one-half), and for a short period, up until mid-2017, from Beau (as to one-third) for a total sum of $10,400. 73 Exhibit IP4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexures AM-33 to AM-45). 74 T101.3-7 and Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 – annexures AM-8 at page 30). 75 Exhibit IP4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexures AM-33 to AM-35). 76 Exhibit IP1.1 at [12]; T100.38, T101.1-16, T138.22-38. -- 23 of 48 -- [2026] SADC 13 20 Liberty loan documents 69 Documents relating to the loan from Liberty were also tendered as exhibits to Ann-Marie’s affidavit.77 Relevantly, the loan application signed by both Beau and Zane on 15 July 2016 refers to: • a contact person from “Keyinvest” (who is later described as the “introducer”78); • a loan amount of $522,500 with the security value of $525,000; and • a settlement date of “Aug 12 2016”. This document corroborated Ann-Marie’s oral account of her participation in the meetings on The Parade (in Norwood) with a person from Keyinvest (which she described as “Key Finance”) helping them with finance for the purchase of the house. 70 Each of Beau’s and Zane’s assets are also described with values, including as to their bank balances and superannuation. The primary residential address for each of Beau and Zane is stated to be the house in Klemzig “after the loan has settled”. The schedule to the loan agreement provides for: • a total amount of credit of “$524,236.13”79; • a loan term of “30 years”; and • “360 monthly repayments over the loan term”. 71 It also sets out an obligation to make “359 monthly principal and interest repayments of $3,089.34 each and a final repayment of $3,089.34”. This information was also repeated in the loan confirmation letter of 23 August 2016.80 These monthly repayment amounts equate to weekly repayments in the order of $772.25 and are substantially consistent with the weekly direct debits from Zane’s bank accounts as reflected in his bank statements (see paragraph 63 above), and the one-third share of $260 paid by each of Beau and Ann-Marie in the beginning; and increasing to $400 (representing an approximate half-share) paid by Ann- Marie once Beau ceased contributing in mid-2017. I think it is reasonable to attribute the small differences in the actual repayment amounts reflected in the bank statements to changes in banking fees and interest rates over time. 77 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexures AM-2 to AM-4). 78 The loan approval confirmation letter dated 23 August 2016, appearing in the annexures to Exhibit IP- 4.1, also reveals that the introducer (Meaghen Santo) was located at 81 The Parade, Norwood. 79 It is apparent from the schedule that the total fees and charges associated with the amount loaned were $26,983.13, leaving $497,253 to be applied towards the purchase price (described as “at your direction”). There were immaterial subsequent changes to this amount in later correspondence concerning the loan. 80 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexure AM-4). -- 24 of 48 -- [2026] SADC 13 21 72 In its further written submission, the Crown conceded repayments made from Zane’s account of a total amount of $198,213, of which Beau’s share represented $10,400. The Crown had also contended that the deposit of almost $26,000 had been shared “50/50” between Zane and Beau.81 Household invoices 73 Documentary evidence was also tendered, without objection, of household bills said to have been paid by Ann-Marie. 74 Ann-Marie’s affidavit annexed copies of: • a notice of renewal from RAA82 regarding home and contents insurance for the Klemzig house describing a policy of renewal for “13/9/2023 to 12/9/2024” at a premium of $2,357.08 and additional taxes and charges; and • an Origin Energy invoice83 for monthly charges of $153.69 for energy usage at the Klemzig house. 75 Both documents are referable to the latter part of 2023. The insureds under the RAA policy are specified as Ann-Marie, Zane and Beau and the insurance classification for the house is “owner-occupied”. 76 Both documents are directed to the attention of Ann-Marie at the Klemzig house address. I accept these documents as supporting Ann-Marie’s oral evidence that she was principally liable for, and incurred energy utilities and insurance of the house. Analysis of key issues 77 I now turn to address the key questions determinative of whether a share in the house is held by Zane and the Crown on a constructive trust for Ann-Marie. 78 What is contested in this case is whether the evidence adduced is capable of supporting factual findings necessary to construe a trust in favour of Ann-Marie.84 In making findings of fact, I have directed my attention to general plausibility, the consistency of the separate accounts and corroboration by reference to contemporaneous records, and by otherwise having regard to the credibility and reliability of evidence given by each witness. I address these matters when considering the evidence relevant to the key issues below. 81 FDN 50. 82 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 – annexure AM-10). 83 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 – annexure AM-11). 84 cf Trajkoski v State of Western Australia [2017] WASC 273 (Le Miere J). -- 25 of 48 -- [2026] SADC 13 22 (1) The inducement element: was there an oral agreement between Beau, Zane and Ann-Marie concerning their co-ownership of the house? 79 The first key issue to determine is whether the inducement element of a common intention constructive trust has been satisfied; being an actual or inferred common intention between Ann-Marie and her sons for her to hold a beneficial interest in the house. In considering the evidence I have regard to the guiding principles set out at paragraph 49 above. 80 The Crown’s contention is that I cannot make findings as to common intention because there is insufficient evidence to support a finding that there was an oral agreement between Beau, Zane and Ann-Marie as to their co-ownership of the house. Having regard to the guiding principles I outlined above, I am reminded that a common intention is distinct from an intention to create contractual relations. Further, conduct of itself may be sufficient to infer intention and it is not necessary for me to find an express written or verbal statement of that intention. Common intention can be made out at the time of acquisition of the house or at a later time. 81 Significant to the success of Ann-Marie’s claim is proving her account that the three of them decided to buy the house in equal one-third shares from Mr Fairclough (her former partner), though it was agreed that only Beau and Zane would take out the home loan and appear on the title.85 Ann-Marie also claims that all three of them agreed at that time to contribute in equal shares to repayment of the home loan to Liberty, also described as the mortgage repayments.86 Her reasons for not being identified on the legal title for the house are also relevant. 82 For a number of years prior to the transfer of the legal title of the house to Beau and Zane, Mr Fairclough had been the sole registered proprietor of the house and Ann-Marie and her children (Beau, Zane and their sister, Deanna – some of them from time to time) had lived there with Mr Fairclough. 83 It is uncontroversial that in September 2016 Beau and Zane purchased the house from Mr Fairclough. It is also common ground that Beau and Zane obtained the home loan from Liberty for about $522,500 to fund the purchase.87 On 13 October 2016 the two brothers became the registered proprietors of the house, as joint tenants. At about the same time the mortgage over the house was registered to Liberty, and a caveat was lodged by Courtina (the company associated with Mr Fairclough) with respect to the vendor finance loan which I have already described above (see paragraph 37). 84 Ann-Marie said that leading up to the purchase of the house in 2016, Mr Fairclough had decided to move back to Ballarat in Victoria (where she had previously lived with him for “a little while”88) and it was then that she, Beau and 85 T41.28-32. 86 T42.4-30. 87 See exhibit IP4-1 (A-M Donaldson Affidavit of 1 March 2024 – annexure AM-2) (Loan application with Liberty dated 4 July 2016). 88 T39.15-24. -- 26 of 48 -- [2026] SADC 13 23 Zane had decided to buy the house from him.89 There was no written agreement reflecting this three-way co-ownership of the house. Ann-Marie’s reasons for not being named on the title are addressed below. 85 In her evidence, Ann-Marie gave the following account of the oral agreement and the loan arrangements relating to co-ownership of the house:90 Q. So you're aware that in July 2016 Beau and Zane applied for the loan, the home loan. A. That is correct. Q. You weren't a party to that loan. A. No, I wasn't to be. I was not going to go onto anything. Q. And you didn't go guarantor on that loan or anything like that. A. No, I didn't. We had an agreement that I would be a third owner of that property, and that was between Beau and Zane and I, and that was discussed at the Liberty offices - sorry, of Key Finance offices on Norwood Parade. 86 And later, Ann-Marie further described the arrangements for purchase of the house in the following exchange:91 Q. But you can't say when that agreement was reached between the three of you. A. It was, it was prior to actually taking the finance out and then it was discussed in the offices of Keylending Finance or Key Finance Lending on The Parade. Q. Thinking back now, what was the nature of the agreement that you reached with Zane and Beau. A. That we would - I couldn't go on it and we would go thirds. We would own it together. We would all pay a third of the property, the mortgage, and that was it. Eventually I would go on the title. 87 She also claimed there had been “numerous” discussions between them about these arrangements but none of it was in writing because they “just trusted each other”.92 88 In giving her evidence Ann-Marie did not pretend to know all of the precise dates and time periods relevant to the acquisition of the house, the borrowing and the purported oral agreement with her sons. It was significant to my mind that she could recall meetings with “Key Finance” on Norwood Parade which was consistent with the eventual loan application form for finance from Liberty (see paragraph 69 above). I am satisfied that her recollection of the general intent of the conversations she had within the family setting were broadly accurate and 89 T38.2-21. 90 T64.3-15. 91 T66.15-25. 92 T64.36-T66.8. -- 27 of 48 -- [2026] SADC 13 24 therefore reliable; this is because they involved something important to her, being the house purchased from her former partner where she was continuing to live. To my mind, it is plausible that she would have been able to recall the general thrust of conversations with her sons about such matters, but not necessarily the details. I also accept that as members of what appeared to be a reasonably close-knit family, where they were all living in the same house at the time it was purchased, they may not have recorded their co-ownership agreement in writing. 89 Ann-Marie’s evidence was made more compelling because her description of the significant contributions she made to the mortgage repayments over many years was corroborated by the contemporaneous bank statements in evidence that I have already described above (see paragraphs 63 to 68). Relevantly, the bank statements describe transactions consistent with mortgage repayments being made by Ann-Marie, initially consistent with one-third of the total mortgage repayments being made to Liberty, and later (after Beau ceases contributing to the mortgage repayments in June 2017) as one-half of those repayments. There is a consistency in the proportionality of the mortgage repayments with Ann-Marie’s account of the three of them having initially agreed to her having a one-third ownership interest in the house and to share the burden of repaying the loan commensurately. 90 Zane gave a similar account to Ann-Marie of the arrangements for purchase and ownership of the house, and the shared contributions to the mortgage repayments. He said that there was a verbal agreement between them that they “were all going to pay one third of the loan, the mortgage”, and that eventually his mother would “go on the title as well” at a time “when [they] were able to do it”.93 91 During examination-in-chief Zane gave the following evidence:94 Q. Sorry, it was a poor question. You said that the plan initially was to put all three of you on the certificate of title. A. Yes. Q. Was the plan initially to put all three of you on the mortgage. A. Yes. Q. But at the purchase of the property it was just yourself and Beau on the mortgage and certificate of title, is that right. A. Yes. Q. So, that's what it said on paper, but what was the actual plan with respect to who was actually supposed to own the premises and to pay for it. A. It was the plan for all three of us to own and pay for it. 93 T105.1-32. 94 T92.9-33. -- 28 of 48 -- [2026] SADC 13 25 Q. And how was the property to be split between the three of you. A. In thirds, we were initially meant to all go thirds in the property. Q. And so does that mean, again correct me if I am wrong, it might be obvious, but you owned one-third of it and you were each responsible for one-third of the mortgage. A. Yes, that's correct. 92 In giving his evidence Zane gave me no reason to think he was answering questions other than honestly and to the best of his recollection. In cross- examination he appeared to me to give considered responses to questions, and he did not delay giving his answers; he readily volunteered when he did not have an answer. It was my impression that he was not being cautious or guarded about his answers or seeking to direct his answers to achieve a particular outcome or with any particular motive in mind. 93 Beau’s memory of their co-ownership agreement differed to that of Ann- Marie and Zane. Beau claimed that he had “zero” interest in the house and that it was owned “50/50” by his mother and brother.95 Beau said:96 A. At the time when the house was getting purchased my brother and my mum wanted to buy it but at the time there were some things hanging over my mum's head and she didn't have full-time employment, so they came to me and asked if I was willing to go on the mortgage just to get the mortgage secured and whatnot and then later down the track very soon that they would remortgage and I would be removed from it, so although I was only really technically meant to be on the mortgage for six months to a year just for them to secure the property. 94 Beau’s recollection as to their one-third contributions to the mortgage repayments was that when he was paying money towards living in the house “the simplest way [he] was doing it, there were three of [them] living there so whatever the mortgage was [they] just split it three ways”.97 95 He confirmed that there was a meeting with Zane and his mother before filing any “paperwork” in relation to the house and that their “agreement” was not put into writing anywhere.98 Beau’s evidence was that the agreement was that “at the earliest opportunity” his mother’s name would replace him on the title.99 He said those discussions were held with Zane and Ann-Marie “as soon as they wanted to buy the house” and his mother realised that “she couldn’t go on the title for the mortgage or anything”.100 Under cross-examination, Beau resisted the assertion that there was no discussion about “this three party agreement”.101 95 T135.21-24. 96 T136.1-11. 97 T138.7-9. 98 T146.1-32. 99 T145.2-5. 100 T145.8-11. 101 T147.23. -- 29 of 48 -- [2026] SADC 13 26 96 Though Beau’s account of the arrangements for the purchase of the house and Ann-Marie’s interest differed from Ann-Marie’s and Zane’s, it was not inconsistent with the important aspect of there being an intention at the outset that Ann-Marie would have an interest in the house and contribute to the mortgage repayments. Why was Ann-Marie not named as a co-owner on the certificate of title? 97 There is authority to the effect that I may take into account an excuse for legal title not being reposed in the name of Ann-Marie as direct evidence of a common intention that she is to have a beneficial interest (see paragraph 49(6) above). It is not clear to me whether I am entitled to reach the opposite conclusion, that there was no common intention, if Ann-Marie does not have a satisfactory excuse. 98 I understood the Crown to contend that Ann-Marie not being registered as a co-owner on the title for the house was indicative of Beau and Zane having not agreed with Ann-Marie to grant her a co-ownership interest. As I understood it, the assertion was that if Ann-Marie was a co-owner there should have been nothing standing in the way of her being registered as such on the title of the house, and without such registration being pursued by Ann-Marie any co-ownership interest she asserts must therefore be questionable. Taken to its logical conclusion, the Crown’s proposition is that if there was no good reason for Ann-Marie’s name not to be registered on the title of the house, then the absence of such registration must point to there not being any co-ownership agreement. Ultimately, it is unnecessary for me to test this (inverse) logic because I am satisfied that there were plausible reasons for Ann-Marie not to have her co-ownership interest registered which support her claim as to common intention. I now turn to address those reasons. 99 In cross-examination of the witnesses, the Crown challenged the evidence given as to why Ann-Marie was not registered on the title if in fact she was a co- owner of the house. 100 Ann-Marie was steadfast in her reasons for not being named as an owner on the title to the house. Ann-Marie claimed that she was never registered on the title as a co-owner because she had previously been living in another house where there had been a drive-by shooting, and she was told by “a couple of detectives of the crime squad” that in order for her to be under protection they did not want her to “own” anything in her name.102 She said she had remained “worried it was going to happen again” and in cross-examination explained that she did not like talking about it.103 Ann-Marie also said the drive-by shooting incident was one of the reasons she was not working at the time.104 102 T40.38-T41.27. 103 T72.8-11. 104 T41.12. -- 30 of 48 -- [2026] SADC 13 27 101 In relation to the “things hanging over” his mother and as to why she was not registered owner of the house, Beau said:105 A. No one was - there was some stuff going on with her ex-business partner that had been finalised and whatnot but that was still I think with the bankruptcy that was hanging over her head from that and then there was a shooting that happened at her previous address that she didn't want to go on the title because she still had a lot of - well, she was shit scared. Sorry to swear, but yeah. 102 While I am satisfied that Ann-Marie had experienced an earlier drive-by shooting at a different address, I was not convinced about it being the primary reason for her not being registered as a co-owner on the certificate of title for the house. Ann-Marie said she had been advised by police not to disclose her name on any public registers. To my mind it was curious for her name and address to be used for the invoicing of insurance and other outgoings for the house, and for both of her sons’ names to appear on title, in circumstances where she allegedly feared her whereabouts being traced by persons who might threaten her safety. That said, I am satisfied there were other more rational reasons for Ann-Marie’s name not to have appeared on the title which I infer from the evidence given by Beau and Zane and supported by inferences I drew from the documentary evidence. 103 Though I was not satisfied with Ann-Marie’s explanation for her not being on the title, I did not conclude that this undermined her overall credibility. It was my impression that she was pressed to explain why she would not have been registered as an owner on the title and in her mind she had reflected on the previous drive-by shooting as being a probable reason why she did not appear on title. I consider Ann-Marie more likely had an unsophisticated understanding of the commercial reality of the acquisition of the house which had involved obtaining a home loan from Liberty as to approximately 90 percent of the lender’s valuation of the house, in circumstances where Ann-Marie was not working and not named as a borrower. As I saw it, even if Ann-Marie had been prepared to be named on the title, she would have needed to have also been in a financial position to be approved as a borrower by Liberty. The fact that Ann-Marie thought the reason she was not named on the title was because of the drive-by shooting incident does not undermine the rationality of her not being on the title because she was not a named borrower of the home loan from Liberty. 104 Beau’s evidence was that his mother was not on the title because they would need to “remortgage” as soon as his mother “was in a position to come onto the mortgage” and “take [him] off” but this did not happen because he was arrested.106 He also said during cross-examination that from 2016 to August 2019 they “couldn’t remortgage”. Beau also described his mother not being in full-time employment when the house was purchased and the loan was taken out (see 105 T136.20-27. 106 T139.32 – T140.3. -- 31 of 48 -- [2026] SADC 13 28 paragraph 93 above). As to the refinancing to allow his mother to go on title he said:107 A. No, they tried, they tried, but then my mum still wasn't in a position, so they just had to wait a little bit longer and then by the time that came around I had been arrested. 105 Zane said that his mother had not originally wished to be on the title because “she wasn’t working currently at that time” and also because of “legal things with the shooting with the house”.108 106 Ann-Marie had also confirmed that she was not in permanent employment during this period and was being paid cash by Dr Cook and gifted cash from another gentleman. She said she was paid cash by Dr Cook to conceal the payments from his children who were not then supportive of her relationship with him. The transfers were made by cash because one of Dr Cook’s daughters was doing his bookkeeping. She explained that the other gentleman worked at the Pooraka markets and gifted her money for helping him out. I am satisfied that Ann-Marie was not in any kind of permanent employment when the house was purchased and through the period when she was transferring monies to Zane’s account from cash deposits from Dr Cook and cash from the gentleman at the Pooraka markets. 107 Another reason Zane claimed Ann-Marie had not been added to the title was that Beau was “in and out of custody”.109 I understood this to relate to a time after acquisition and why they had not replaced Beau with Ann-Marie as an owner after Beau had ceased contributing to the mortgage repayments. 108 Zane also explained that their mother was not able to “go on the title as well” until they had the funds to refinance as when they purchased the house they did not have “any equity in the house”.110 109 To my mind this account of the reasons for Ann-Marie not being named on the title of the house provided the most logical and satisfactory explanation. I inferred from their evidence that Zane and Beau held the legal title because only they had been approved by and obtained the home loan from Liberty, plainly, as there was very little equity in the house (as is apparent from the loan application signed by Beau and Zane (see paragraph 69 above)). Ann-Marie was not employed, and Beau and Zane were cognisant of the need to “refinance” in order for Ann-Marie to “go on the title”, which I interpreted to mean when Ann-Marie was in a position to demonstrate to a lender that she was in a financial position (for example, through permanent employment) to meet the loan repayments. As Liberty held a mortgage over the house as security for the repayment of the loan, 107 T151.16-19. 108 T91.15-17. 109 T105.31-32. 110 T105.29-30. -- 32 of 48 -- [2026] SADC 13 29 it is reasonable for me to infer that Liberty would not have allowed a transfer of Beau’s legal interest to Ann-Marie until the loan could be refinanced. 110 Having regard to these matters, I find that plausible reasons existed for Ann- Marie’s interest not to be registered on the title of the house. This constitutes direct evidence of a common intention for Ann-Marie to hold a co-ownership interest in the house. Why didn’t Ann-Marie use the power of attorney she held for Beau to arrange for her name to be registered as co-owner on the certificate of title? 111 It was uncontroversial that Ann-Marie had held a power of attorney for Beau during the relevant period. A copy appears annexed to Ann-Marie’s affidavit.111 It provided, amongst other things, for Ann-Marie as attorney for Beau to buy, acquire and sell real or personal property on his behalf. 112 The Crown attempted to make something of the uncontested fact that Ann- Marie held this power of attorney for Beau, and had done so since 2010.112 113 The Crown questioned both Ann-Marie and Beau as to why Ann-Marie had not used this power of attorney to register her co-ownership interest in the house. I understood the Crown to challenge Ann-Marie’s claim that they had agreed to her holding an interest in the house in circumstances where her interest would have been capable of being perfected by registration on the title.113 114 In a similar vein to the previous issue concerning Ann-Marie failing to have her co-ownership interest registered on the title of the house, I understood the Crown to contend that had Ann-Marie actually held a co-ownership interest she would have used Beau’s power of attorney at some point during the relevant period to have registered her interest. I am not satisfied that the mere existence of Ann- Marie holding Beau’s power of attorney precludes me from finding an oral co- ownership agreement. Nevertheless, I consider there were reasons why Ann-Marie did not pursue registration of her co-ownership interest by exercising her rights as Beau’s power of attorney. 115 The Crown pressed Ann-Marie during cross-examination as to why she had not exercised her powers, as the holder of Beau’s power of attorney, to have her name registered on the title. I was satisfied by the answers Ann-Marie gave that she had very little understanding about the extent of her powers as holder of Beau’s power of attorney and that exercising it was not in the forefront of her mind during a period when she was diagnosed with a serious illness and Beau had been imprisoned. Ann-Marie denied that the power of attorney had been used to make payments for the mortgage on Beau’s behalf114 and said that she did not realise that 111 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexure AM-1). 112 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexure AM-1). 113 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexure AM-1). 114 T74.36-T75.2. -- 33 of 48 -- [2026] SADC 13 30 the power of attorney gave her the ability to deal with the house on behalf of Beau.115 116 Beau’s evidence was that his mother held his power of attorney because he was in gaol and she might need to sign things for him for medical procedures but not to make payments on his behalf.116 His recollection was that she did not hold any power of attorney for him in 2016. Ann-Marie gave similar evidence about the power of attorney and that she held it because Beau had been incarcerated and to carry out his legal affairs while he was in gaol.117 117 Ultimately, I find that Ann-Marie did not have sufficient awareness that she could have exercised Beau’s power of attorney that she held in the manner suggested by the Crown to have herself registered on title. In any event, I am not persuaded that such a dealing with the title would have been consented to by the mortgagee, Liberty, without the requisite “refinancing” intimated by Zane and Beau to be needed for Ann-Marie to be registered on title.118 Conclusion on finding of common intention as to co-ownership 118 Having regard to this evidence, and my findings on the subsidiary issues above, I find that there was an oral agreement made between Ann-Marie, Zane and Beau, at or about the time the house was purchased from Mr Fairclough, that Ann- Marie would initially hold a one-third co-ownership interest in the house on the basis that she would contribute to one-third of the mortgage repayments. In reaching this finding I placed considerable weight on the banking records which provided evidence of Ann-Marie having made regular contributions to the repayment of the mortgage over many years, generally in line with the initial one- third instalments, and increasing to one-half after Beau ceased contributing. Without this evidence I would have been less likely to accept the witnesses’ testimony about the oral agreement. My finding is that Ann-Marie and her sons intended she have a part ownership interest in the house from the time it was acquired from Mr Fairclough. Though they did not express it as a beneficial interest or an interest under a trust, I am satisfied that her interest was intended to be recognised by the legal owners – then being Zane and Beau – and that it was commensurate with her assumption of liability for the mortgage repayments. It was not an interest that they would only recognise in the future – it was not an aspirational interest. I am satisfied that from the time of acquisition it was the common intention that Ann-Marie own a part of the house. 119 As such, I consider that Ann-Marie has discharged her burden and established that there was a common intention between herself and her sons as to co-ownership of the house. 115 T76.22-25. 116 T154.9-34. 117 T50.16-26. 118 See paragraph 109. -- 34 of 48 -- [2026] SADC 13 31 (2) The detrimental reliance element: did Ann-Marie rely upon that agreement to her detriment? 120 The second element of which I must be satisfied in order to construe a trust pursuant to which Ann-Marie has a beneficial interest in the house is that Ann- Marie acted to her detriment in a way which was referable to the common intention as to her having an ownership interest in the home. 121 Once it has been shown that there was a common intention that Ann-Marie should have an interest in the house, any act done by her to her detriment relating to the house is sufficient to qualify as detrimental reliance, and the burden lies on the legal owner (here, the Crown) to show that she did not do so.119 122 In Hulett120 Derrington (Sarah) J said:121 it is sufficient in a case which gives rise to a common intention constructive trust for a claimant to prove that he or she has altered his or her position on the basis of an assumed state of affairs that is then sought to be altered in order to establish the necessary detriment: Australian Financial Services at [87]. That is because it is a trust which has arisen by operation of law to enforce the parties’ otherwise unenforceable common intentions rather than being a mere equity, viz, an equitable claim against the conscience of the true owner. 123 The contributions Ann-Marie regularly made towards the mortgage repayments were substantial and sufficient to establish detrimental reliance. 124 Zane and Ann-Marie gave evidence that Zane would collect the periodic payments from each of Beau and Ann-Marie by way of transfers to his bank account and then he would make the repayments from his account directly to the lender. Details of these repayments are set out above (at paragraphs 63 to 68) concerning the evidence of the bank statements before the court. Ann-Marie’s Commonwealth Bank statements for her Smart Access account showed regular weekly transfers to Zane’s “CommBank” account during the period from 19 September 2016 to 27 October 2023.122 The early transferred amounts were typically for a value of $260. From the entry on 27 June 2017 the regular transfer amounts increased to about $340 per week (these transactions were also noted with the description “Liberty minus food”, or later “Liberty fees” and “part Liberty”). Eventually, from around mid-2019, the transfers consistently increased to a value in the order of $400 or greater.123 Most of these debit entries in Ann-Marie’s bank statements had a transaction description of “Transfer to CBA A/c CommBank app Liberty mortgage”. Sometimes the descriptions included remarks such as “Liberty 119 Grant v Edwards at 3 WLR 657C (per Lord Browne-Wilkinson). 120 Secretary, Department of Social Services v Hulett (Derrington (Sarah) J). 121 Secretary, Department of Social Services v Hulett at [40] (Derrington (Sarah) J), citing with approval: Bassett v Cameron [2021] NSWSC 207 at [564] (per Ward CJ (in Eq); Koprivnjak v Koprivnjak at [24] (Griffiths AJA). 122 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024, pp 47-259 (19th September 2016 to 22 October 2021), pp 40-44 (05 November 2021 to 27 October 2023)). 123 Some entries were for amounts were marginally above and below $400 – such as $365. -- 35 of 48 -- [2026] SADC 13 32 minus food” or “balance Liberty” with the entries being lower amounts indicating a setoff for amounts that Zane owed Ann-Marie. 125 There are two questions that must be addressed in relation to these payments before I can conclude they constitute detrimental reliance. First, whether the payments were nothing more than rent; and secondly, whether they were made from Ann-Marie’s own funds. I address these questions below. 126 In addition, her assumption of liability for household expenses (such as insurance and energy) are also indicative of her detrimental reliance. Ann-Marie gave evidence that she managed and paid for all of the household bills, including insurance (which was in her name124) and utilities.125 She also said that she was authorised to speak to Liberty about the mortgage and to engage with the local council about the house.126 Zane’s evidence generally confirmed that Ann-Marie managed and paid for the household bills, including electricity, insurance, water and council rates for the house.127 I find Ann-Marie did assume responsibility for these kinds of expenditures relating to the house. 127 I also find that the amount Ann-Marie ultimately repaid to Dr Cook in respect of the vendor finance from Mr Fairclough constitutes conduct indicating detrimental reliance by Ann-Marie on her having an ownership interest in the house (see paragraph 39 above). Were the payments for rental? 128 I did not understand the Crown to contend that Ann-Marie would have contributed to the mortgage repayments regardless of oral agreements as to her co- ownership interest. The Crown’s position was instead to challenge the existence of any oral agreement. However, a question did arise during the trial, though it was not pressed by the Crown in submissions, as to whether the contributions made by Ann-Marie towards the mortgage repayments constituted nothing more than rental in respect of a temporary right to occupy the house. There was no evidence presented to allow me to draw this inference. 129 In reaching this conclusion I note that Ann-Marie did make concessions in giving her evidence that she sometimes referred to the amounts she paid towards the mortgage repayments as “rent” and did not know why she did this. In closing, her counsel submitted that there was no entry in the bank statements that supported Ann-Marie having referred to the mortgage repayments as rent and that she may therefore have made this concession in error. 130 I find that the contributions Ann-Marie made towards the mortgage repayments cannot be properly characterised as rent. 124 Exhibit IP4.1 (A-M Donaldson Affidavit of 1 March 2024 - annexure AM-10). 125 T51.33-38. 126 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 at [15] and annexure AM-11). 127 T95.17-T96.2. -- 36 of 48 -- [2026] SADC 13 33 Were the payments from Ann-Marie’s own funds? 131 The Crown challenged the source of funds from which Ann-Marie was making the payments towards the mortgage from her bank account. Clearly, if the monies paid by Ann-Marie were not her own funds then it might be concluded that they cannot give rise to detrimental reliance. To this end, Ann-Marie was challenged in cross-examination about the amounts she regularly paid towards the mortgage repayments, with the suggestion that such amounts were often funded by cash deposits made shortly prior to the transfers to Zane’s account. 132 I accept that for many of the relevant entries in Ann-Marie’s bank statements, there were credit entries showing a cash ATM deposit approximating the same amount or more being paid into Ann-Marie’s account shortly before the transfer to Zane’s account is made (sometimes on the same day). The Crown challenged Ann- Marie as to the source of these cash amounts. I understood the Crown to be intimating that those cash amounts were being given to Ann-Marie by Beau; however, this contention was not eventually put to me by the Crown and I do not make that finding. I outlined earlier evidence about the source of such funds (see paragraph 106). 133 Further, Beau strenuously denied the Crown’s assertion that he had funded his mother with cash so that she could make the contributions towards the mortgage repayments from her bank account. 134 Beau also emphatically denied having turned his mind to the confiscation of the house after he was charged and said that they only knew about the restraining orders over the house once his mother “found the lock on the house” in 2019.128 The Crown did not ultimately contend that there had been a deliberate plan to transfer ownership of the house to Ann-Marie only after they became aware of the confiscation proceedings. 135 Dr Cook’s evidence also supports Ann-Marie’s evidence about the source of her funds. Dr Cook confirmed he had paid money to Ann-Marie, including when she needed money to pay for her mortgage when she was not working, and then from about 2020 when she commenced doing “PA-type work” for him.129 He said that he would go to Marden Shopping Centre after work and take out cash and give it to her and she would put it in her account, which he thought was for paying the mortgage.130 I was persuaded that Dr Cook’s account was truthful because he volunteered a very precise description of how these cash transactions occurred, including the name of the shopping centre and the time of day they typically took place. It is unlikely he made this up or imagined it. Ann-Marie’s bank statements, as described above (see paragraph 65), also reflected the cash deposits often being made at the Marden Shopping Centre corroborating Dr Cook’s evidence. As such, I find that Dr Cook regularly made cash payments to Ann-Marie throughout the 128 T157.13-15. 129 T122.5-16. 130 T122.10-16. -- 37 of 48 -- [2026] SADC 13 34 relevant period, which Ann-Marie used to fund payments to Zane for the mortgage repayments. I find these funds were Ann-Marie’s funds and were not sourced from Beau. 136 Having regard to the evidence given by Dr Cook and Beau, I accept Ann- Marie’s account and do not find that the source of funds for contributions to the mortgage repayments were from Beau. To my mind, this would have had to have been an elaborate scheme enduring over a number of years, possibly motivated to circumvent the operation of the confiscation legislation or representing money laundering. There is simply insufficient evidence to establish any hypotheses of these kinds, and I make no such finding. Ultimately, in closing addresses, the Crown did not suggest that there was evidence upon which I could make such a finding. Conclusion on finding of detrimental reliance 137 Having regard to this evidence, and my findings on the subsidiary issues above, I find that Ann-Marie did act to her detriment in reliance upon the oral agreement that she would be entitled to a co-ownership interest in the house. I find that the payments she regularly made towards the mortgage repayments extended over a significant period and were of a quantum that demonstrated detrimental reliance. Ann-Marie’s assumption of liability for expenses for the house and her reimbursement of settlement of the debt for the vendor finance loan from Mr Fairclough are also acts which demonstrate her detrimental reliance. 138 In view of this conclusion, I am satisfied that the evidence supports the contention of Ann-Marie and Zane, namely that Beau’s interest in the house, now vested in the Crown, is held on constructive trust for Ann-Marie and it would be unconscionable for the legal owners, Zane and the Crown, to deny her interest. This gives rise to the question of quantum in determining the extent of Ann- Marie’s interest. Is there other suitable equitable relief? 139 Before determining the further issues, I accept that ordinarily relief by way of constructive trust is imposed only if some other remedy is not suitable: Farah Constructions v Say-Dee Pty Ltd.131 The rationale for this approach is thought to be to avoid a situation where a plaintiff gains a beneficial proprietary interest which gives an unfair priority over equally deserving creditors of the defendant (here, this equates to the Crown). Further, before a court decides to impose a constructive trust as a remedy, it should first decide whether, having regard to the issues in litigation, there are other means available to quell the controversy. In the present case it is difficult to see that an alternative equitable remedy would be suitable or appropriate. It would entail denying Ann-Marie an interest in her home to which she has made a substantial contribution in the belief she was a substantial owner 131 Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 at [200] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) citing Giumelli & Anor v Giumelli (1999) 196 CLR 101 at [10], [49] – [50] (Gleeson CJ, McHugh, Gummow and Callinan JJ). -- 38 of 48 -- [2026] SADC 13 35 of it. She has assumed a continuing liability in respect of the mortgage held by Liberty and other household liabilities. I do not consider Ann-Marie to be gaining an “unfair priority” over the Crown in circumstances where the Crown has conceded that its rights in respect of the house are limited to the extent of Beau’s interest. The Crown did not press, in the event I found for Ann-Marie, for an alternative remedy to that of a constructive trust. I consider that recognition of a constructive trust is apt in this case. 140 Further, I did not understand the Crown to ultimately contend that there had been any deliberate strategy on the part of Beau to avoid the operation of the forfeiture provisions of the CAC Act which may have otherwise given me pause to grant equitable relief to Ann-Marie. Based upon my findings, Ann-Marie made a substantial financial sacrifice in assuming liability for the mortgage repayments and other household liabilities, and was not deliberately introduced by Beau as an innocent party with a view to engineering exclusion of a share of the house from forfeiture.132 (3) Did Ann-Marie’s interest arise prior to forfeiture of Beau’s interest in the house? 141 Towards the end of the trial, I raised an issue with the parties as to whether the constructive trust contended for by Ann-Marie and Zane was an institutional or remedial trust. An institutional trust arises by operation of law by reference to past events, with the court’s role being to declare the effect of those events. An institutional trust does not arise by the exercise of a discretion. A remedial trust is a discretionary remedy typically founded upon the principle of unjust enrichment, though it has been said that in equity there may be “no true dichotomy” between the two notions of remedial and institutional trusts.133 142 It had occurred to me that if the constructive trust was a remedial trust then it might not be effective against the forfeiture of Beau’s interest in the house that had already occurred on 30 September 2022 by operation of s 56A of the CAC Act. I invited the parties to make supplementary written submissions concerning this issue. 143 The parties agreed that the constructive trust, if found to exist, comes into existence at the time of the conduct giving rise to its existence and not at the time the court makes findings as to its existence.134 I was referred to the decisions of Varma v Varma135 and McNab v Graham136 in support of this proposition. The 132 Pham v DPP [2017] VSC 261 at [59]. 133 Muschinski v Dodds (1985) 160 CLR 583 at 614 (Brennan J, with Dawson J agreeing at 625). 134 Further written submissions of the first and fourth interested parties filed on 27 June 2025 (FDN 48) and further written submissions of the applicant filed on 4 July 2025 (FDN 50). 135 Varma v Varma [2010] NSWSC 786 at [507] – [518] (Ward J). 136 McNab v Graham (2017) 53 VR 311 at [6] (Tate JA, with Santamaria JA agreeing at [140], Keogh AJA agreeing at [141]). See also Mould v Canale [2017] VSC 793 at [101] (Macaulay J). -- 39 of 48 -- [2026] SADC 13 36 reasons of Ward J (as she then was) in Varma provide a useful summary of the principle said to apply to constructive trusts:137 507 As a matter of general principle, it is [sic] seems to be the accepted position under Australian and English law that a constructive trust will be treated as coming into existence at the time of the conduct which gives rise to the trust (Muschinski, at [7], Parsons v McBain (2001) 109 FCR 120; (2001) 192 ALR 772; [2001] FCA 376, at [9]; Secretary, Department of Social Security v Agnew (2000) 96 FCR 357, at 365; Re Sharpe (a Bankrupt); Ex parte Trustee of Bankrupt’s Property v Bankrupt [1980] 1 WLR 219; [1980] 1 All ER 190, see also Young, Croft and Smith, On Equity, at [6.850], A J Oakley Constructive Trusts 3rd ed, Sweet & Maxwell, 1997). In such a case, the doctrine of priorities would apply and, where the equities are equal, the beneficiary of the constructive trust would be entitled to priority over the holder of a later equitable interest, a later legal interest (providing thery [sic] are [sic] not a bone fide [sic] purchaser for value without notice) or an unsecured creditor of the constructive trustee. 508 In Parsons v McBain, the Full Court of the Federal Court (comprised of Black CJ, Kiefel and Finkelstein JJ), considered the time at which a constructive trust founded upon the common intention of the parties came into existence and, referring to Browne-Williamson J in Re Sharpe, at 225 and to the joint judgment of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli, at [122], rejected the notion that a “common intention constructive trust” first comes into existence when so declared by the court. Their Honours referred to what had been said by Deane J in Muschinski, namely that: “The old maxim that equity regards as done that which ought to be done is as applicable to enforce equitable obligations as it is to create them and, notwithstanding that the constructive trust is remedial in both origin and nature there does not need to have been a curial declaration or order before equity will recognize the prior existence of a constructive trust: … Where an equity court would retrospectively impose a constructive trust by way of equitable remedy, its availability as such a remedy provides the basis for, and governs the content of, its existence inter partes independently of any formal order declaring or enforcing it. (emphasis as added by their Honours in Parsons v McBain).” 144 I note that Parsons v McBain138 cited in the above passage was also referable to a common intention constructive trust. 145 In the analogue regime for property vesting upon the bankruptcy of its owner, the courts have consistently held that an equitable interest will not be defeated merely because the legal title has passed to a trustee in bankruptcy: “for he stands in the shoes of the bankrupt.”139 To defeat such an interest there would have to be conduct, “by representations, by misstatements of a character which would operate and enure to forfeit and to take away the pre-existing equitable title”.140 By parity of reasoning, and without any provision in the CAC Act indicating that a contrary 137 Varma at [507] – [508] (Ward J). 138 Parsons v McBain (2001) 192 ALR 772 at [13] (Black CJ, Kiefel and Finkelstein JJ). 139 See Aguilar v Aguilar (1820) 56 ER 953. 140 Shropshire Union Railways and Canal Co v R (1875) LR 7 HL 496 at 506; Abigail v Lapin [1934] AC 491 at 504. -- 40 of 48 -- [2026] SADC 13 37 position ought to apply, there would not seem to be any reason for this principle not to be also followed in respect of the forfeiture regime under the CAC Act. I note that there was no submission that the CAC Act required any different application of the principle or that Ann-Marie (or Beau) had acted in a way so as to take away any pre-existing equitable title. 146 The Crown submitted that if a constructive trust existed in favour of Ann- Marie it would have come into existence in June 2017 prior to the forfeiture of Beau’s interest in the house. The interested parties submitted that it was either June 2017, when Beau ceased contributing to the mortgage repayments, or immediately prior to 25 September 2019, when the court issued restraining orders over the house. The foundation for the submissions as to these dates was said to be that they were both times at which it could be found that there was unconscionable interference with the interests of Zane and Ann-Marie. I disagree that it is at the point of some kind of unconscionable interference that the trust is said to come into existence. In my view, the relevant time is when the detrimental reliance by Ann-Marie rendered it unconscionable to depart from the promise of co-ownership of the house.141 To my mind, this was as early as late 2016 when Ann-Marie commenced contributing to the mortgage repayments in reliance on the agreement that she was entitled to a co-ownership share of the house. 147 As such, from late 2016 Beau and Zane held their legal interests in the house subject to Ann-Marie’s interest arising from her detrimental reliance on the agreement as to her co-ownership interest. It follows that since the forfeiture of Beau’s interest in September 2022, the Crown (standing in the shoes of Beau) also holds its interest subject to Ann-Marie’s prior equitable interest. (4) Quantum: what is the extent of Ann-Marie’s equitable interest? 148 Having found Ann-Marie holds an equitable share of the house pursuant to a common intention constructive trust, I now turn to consider whether it is possible on the evidence to determine the extent of her interest in the house or, to put it from a different perspective, the extent of the Crown’s interest in the house (standing in the shoes of Beau). 149 Towards the end of the trial I invited the parties to make further written submissions on this issue in an attempt to avoid the necessity for further hearings concerning the issue of quantum. 150 The further submissions of the interested parties as to quantum were put in the alternative depending upon findings as to whether Ann-Marie held a beneficial interest in the house. Relevantly, in both scenarios, the interested parties contend that Beau’s (and therefore the Crown’s) interest represents a “1.98%” share of the house on the basis of his financial contribution to the mortgage repayments up until June 2017 of $10,400 (based upon the purchase price for the house being $525,000 and the Liberty home loan being $524,236). The amount of Beau’s financial 141 McNab v Graham at [108] (Macauley J). -- 41 of 48 -- [2026] SADC 13 38 contribution of $10,400 was accepted by the Crown, though the Crown contended for a greater share. In addition to Ann-Marie’s contribution to the mortgage repayments (initially at a rate of one-third, and from mid - 2017 increasing to one- half), the interested parties also contended that Ann-Marie’s financial contribution ought to include both a payment to Dr Cook to discharge the vendor finance loan from Courtina, representing about $30,000 (by the time it was reimbursed – though it was originally for $26,000), and an amount of $30,000 in value said to have been gifted to Ann-Marie by Mr Fairclough as part of the terms of purchase of the house. No evidence of the current value of the house or the extent of any balance outstanding on the loan to discharge the mortgage to Liberty was before me. 151 In its further written submissions, the Crown generally rejected the submissions of the interested parties as to quantum. The Crown contended that Ann-Marie had not contributed to the purchase price of the house. In particular, it was submitted that there was no evidence at trial to establish the alleged $30,000 gift, as part of the sale price of the house, from Mr Fairclough to Ann-Marie. 152 Further, the Crown contested that the alleged indirect repayment of the vendor finance loan from Mr Fairclough or Courtina to Zane and Beau, by way of Ann-Marie reimbursing Dr Cook for the payment he made to settle this debt on behalf of Zane and Beau (see paragraphs 38-39 above), was sufficient to confer any recognisable equitable interest in the house. 153 I determined that Ann-Marie did reimburse Dr Cook in respect of the vendor finance loan for an amount in the order of $30,000, but I did not accept that Mr Fairclough had gifted her a portion of the house as to $30,000. To the extent those two issues are relevant to quantum, I have found only that Ann-Marie’s reimbursement of $30,000 to Dr Cook for his payment to Mr Fairclough’s company was made, which supported my conclusion on detrimental reliance (but was not a sufficient basis to find a resulting trust (see paragraph 39 above)). 154 In its submissions, the Crown relied on authorities relevant to the principles governing express and resulting trusts.142 In the latter case, it is essential that there is a contribution to the purchase price of the property by the claimant, with the extent of the beneficial interest being determined at the time when the property was purchased and interest created. I accept that for a resulting trust the fact that a claimant acts to reimburse a legal owner for mortgage repayments would not be sufficient to give rise to a presumption of an ownership interest. However, those principles are not relevant to the present case where I have found Ann-Marie’s interest exists by operation of a common intention constructive trust, where the principles for determining the quantum of beneficial interest differ. An important difference is that a common intention may be inferred (and detrimental reliance established) from evidence of contributions made to mortgage repayments and to 142 Charles Marshall Pty Ltd v Grimsley (1956) CLR 353; Craig v Craig and Anor [2015] SADC 109; Angelou v Brandenburg [2024] SADC 114; Ambrose as Trustee of the Bankrupt Estate of Peter Athanasas v Athanasas and Anor [2016] SASC 63; Black Uhlans Incorporated v New South Wales Crime Commission & Ors [2002] NSWSC 1060. -- 42 of 48 -- [2026] SADC 13 39 other direct and indirect financial contributions to the acquisition, and there is no presumption that the beneficial interest is in proportion with the contribution of the purchase price.143 As such, conduct after the acquisition of a property (such as contributing to mortgage repayments) might provide a basis for someone to claim a proprietary interest on some basis other than that of a resulting trust, such as constructive trust, or equitable reimbursement.144 155 In Shepherd v Doolan White J made the following observations concerning how the quantum of the beneficial interest in the subject of a common intention constructive trust is to be determined: 145 [41] The quantum of the claimant’s beneficial interest will be that which the parties agreed upon or intended, if that can be established. In Green v Green and in Parianos v Melluish it was held that although the parties did not turn their minds to the particular form of title which they intended the claimant to have, the conclusion which best gave effect to the intentions of the parties was that they were beneficially entitled to the property as joint tenants, so that upon the death of the respondent, the claimant became the absolute beneficial owner by survivorship. [42] If the evidence does not permit of a finding as to the precise size, nature and extent of the beneficial interest the parties intended the claimant to have, one starts with the maxim that equality is equity. (Green v Green at 355). But that standard can and should be departed from where the parties make disproportionate contributions to the acquisition of the property. In Baumgartner v Baumgartner, Mason CJ, Wilson and Deane JJ said (at 149–150): Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants-in-common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind. In Gissing v Gissing, Lord Pearson, who considered the issue was whether there was a resulting trust in favour of the wife by virtue of her contributions towards the purchase of the house, said (at 903): I think also that the decision of cases of this kind has been made more difficult by excessive application of the maxim ‘equality is equity.’ No doubt it is reasonable to apply the maxim in a case where there have been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse but the proportion borne by the contributions to the total price or cost is difficult to fix. But if it is plain that the contributing spouse has contributed about one- 143 Behman v Behman [2015] NSWSC 1787 at [33] and [36] (Rein J) (upheld on appeal in Behman v Behman [2016] NSWCA 295); Shepherd v Doolan at [38] (White J). 144 Black Uhlans at [143] (Campbell J); Cong v Shen (No 3) [2021] NSWSC 947 at [1708] (Ward CJ in Eq). 145 Shepherd v Doolan [2005] NSWSC 42. -- 43 of 48 -- [2026] SADC 13 40 quarter, I do not think it is helpful or right for the court to feel obliged to award either one-half or nothing. … [44] Unlike the presumption of a resulting trust, there is no reason that the beneficial interest cannot change over time. (Green v Green at 356; Austin v Keele at 290). [45] However, if there are to be changes to the proprietary interests of the parties after the property was acquired, the changes must occur according to the same principles as those upon which a constructive trust may arise for the first time. (Pettitt v Pettitt at 816). Where the parties make continuing but different contributions to the maintenance and improvement of the property, I do not accept that the beneficial interests which arose on acquisition of the property are changed merely because the parties later make disproportionate contributions of that kind. If the parties agreed or intended that they should vary their beneficial interests in the property, and one party acted to his detriment, then their beneficial interests could change during the course of the relationship. It may be possible to infer such an agreement or intention from what the parties did as well as what they said. The parties’ later conduct may also provide a basis for inferring their intentions at the time the property was acquired. It might also be inferred that the parties intended at the time the property was acquired that their respective beneficial shares would be left to be determined at a future date, eg when the property is sold, based on their contributions to that time. (Gissing v Gissing at 909 per Lord Diplock; Burns v Burns per Fox LJ at 327). [46] A constructive trust in different proportions might also arise by other means, such as on the principles of Baumgartner v Baumgartner. In the case of a premature termination of a joint endeavour, if the presumption that equality is equity is displaced, the Court will consider the financial and non-financial contributions made by the parties during the course of the relationship or the endeavour. Such a trust arises when the relationship or endeavour comes to a premature end. (Anson v Anson [2004] NSWSC 766 at [34]-[37]). This is not such a case. 156 Having regard to these principles, the prima facie position is that Ann- Marie’s interest in the house will be that which she, Zane and Beau intended.146 I remind myself that the nature of the common intention may change from time to time, but change will not be established merely from proof of proportionate changes in the contributions made by the parties.147 As already mentioned, while Ann-Marie and Zane gave evidence about that intention in 2016 when the house was acquired, being that each of them would have a one-third share, Beau’s recollection was that they had always intended that Ann-Marie and Zane were to be “50/50” owners of the house. Further, the evidence of Ann-Marie and Zane was that the intention as to co-ownership shares in the house changed after Beau ceased contributing to the mortgage repayments and said he did not want to have anything more to do with the house. 157 Ann-Marie and Zane contend that over the period from about September 2016, when the house was purchased, to the time when Beau moved out and ceased 146 Gissing v Gissing [1971] AC 886; [1970] 2 All ER 780; [1970] 3 WLR 255; (1970) 21 P & CR 702 at 908-G (Lord Diplock). 147 Gritzman v McRae [2002] NSWSC 745 at [162] (Lindsay J). -- 44 of 48 -- [2026] SADC 13 41 making contributions in or about mid 2017, the mortgage repayments were funded by each of them and Beau in equal one-third shares. Ann-Marie said that their three-way arrangement for contributing to the mortgage changed with Beau “almost immediately” when “he didn’t want to have any involvement, he wasn’t going to pay the mortgage anymore and so Zane [and Ann-Marie] paid 50% each”. She said he kept saying this and eventually said “I’m not doing that anymore … I don’t want the property”. Ann-Marie explained that prior to 2018 Beau “wasn’t paying anymore anyway”; he had paid a certain amount, “nearly $12,000 but he just said he doesn’t want any interest in the property at all and then after that … he stopped payments, Zane and I just paid 50% each”. Ultimately, as mentioned above, the parties agreed Beau’s contributions to the mortgage repayments ceased in June 2017 and amounted to $10,400. 158 In her affidavit, Ann-Marie said that Beau told her “on more than one occasion he would gift this to Zane and [Ann-Marie]” and “did not want the money he had paid into the mortgage returned to him” and that “we decided Beau would be removed from the property”.148 Ann-Marie gave evidence that after Beau stopped paying, the arrangement of paying 50 percent each continued in the same way as the one-third payments had been made, with payments made by Ann-Marie into Zane’s bank account and Zane then making the repayments to the lender. Though, by the time of the trial, Ann-Marie had recently moved out of the house, she gave evidence that she still continued to cover 50 percent of the loan repayments. 159 Zane’s account of Beau stopping payments towards the mortgage was similar. Zane said that “it just stopped overnight” when Beau told him “I can’t continue with it”. He said at that point “[o]wnership of the house would then become 50/50 between my mum and myself, and mortgage payments would be 50/50 as well, so it was all split down the middle”. Zane said this change from the one-third payment arrangements to the “50/50” arrangement happened “roughly two months” after they initially bought the house. He confirmed that the “original plan of one-third owners” did not last particularly long – “a few months at most”. He confirmed that this “50/50” arrangement continues today. 160 Zane was asked during examination in chief as to whether he was happy with Beau’s name remaining on the title for the house after he ceased making repayments. The following exchange ensued: A Yes, I was fine with it. Q You weren't worried about that continuing forward. A I had nothing to be worried about at the time. Q And why do you say that. 148 Exhibit IP-4.1 (A-M Donaldson Affidavit of 1 March 2024 at [13]-[14]). -- 45 of 48 -- [2026] SADC 13 42 A Because he's family. 161 Zane made a similar remark when being cross-examined about why they had not put the agreement between the three of them in writing. He said: “[b]ecause we’re family”. 162 Beau’s account as to his own financial contribution towards the house was similar to each of Ann-Marie’s and Zane’s accounts. Although he had sworn an affidavit in December 2023 stating that he did not make any payments towards the purchase of the house, he sought to qualify this statement when asked about it during examination in chief. He said: A When I signed that I thought it was an initial payment likely or what they needed to secure the mortgage and that. So that's my bad on that one. But when I was living at the house until I moved out I was paying like some of the - I was helping like obviously. When I was living there I was paying to live there. 163 The following exchange with Beau during examination-in-chief more particularly exposes his understanding of the arrangement with his mother and brother: Q And then did there come a point in time where you stopped paying money towards living at the house. A. Yep. Q. So can you just give us the details. When you were paying money towards living at the house how did that work. Who would you pay the money to. A. We just did it. The simplest way I was doing it, there were three of us living there so whatever the mortgage was we just split it three ways. Q. But how did that work in actual - how would you actually go about you giving some money towards payments. A. Just give it to - it would just be bank transfers straight to my brother. Q. So you would pay your share to Zane. A. Yep. Q. And then did you understand that he would then take care of it from there. A. I'm assuming so, yeah. I was never in - I didn't need it there. I assume that because like I said I had nothing to do with it. 164 He said he had no responsibility for repayment of the loan and that his “mum and brother” were responsible “50/50”. I took his evidence to mean that although he was contractually obliged to Liberty, as party to the loan, to attend to the repayments, it was Zane and his mother who had assumed responsibility for funding the repayments between them. -- 46 of 48 -- [2026] SADC 13 43 Conclusion on quantum 165 When Beau stopped his contributions, I find that Ann-Marie increased her contributions to the mortgage repayments in reliance on a change in the common understanding between the three of them, that she would then be entitled to a 50 percent co-ownership interest in the house with Zane, being proportionate to her assumption of an increased liability for the mortgage repayments. Though I have had regard to what each of Ann-Marie, Zane and Beau have said in evidence about this change in circumstances, I place considerable weight upon evidence of Ann- Marie’s conduct in increasing her payments to Zane’s bank account to represent an approximate one-half share of the total mortgage repayments from mid-2017 to infer that their intentions had changed. This evidence corroborated the oral evidence of each of Ann-Marie, Zane and Beau. 166 There was a clear change of position by Ann-Marie at this time in reliance upon an understanding between them that her co-ownership of the house was to be a one-half interest. I find that her detrimental reliance is established by her assuming an increased share of the liability for the mortgage repayments from that time, pursuant to that change in their common intention. 167 In my opinion, the evidence supports a finding that Ann-Marie, Beau and Zane intended that Ann-Marie have a half-ownership interest in the house from the time that Beau ceased contributing to the mortgage repayments, and Ann-Marie then acted to her detriment by assuming a greater share of the liability for the mortgage repayments. As such, this is a case where Ann-Marie’s beneficial interest changed from that which was originally agreed when the property was acquired. I have made this finding based upon the evidence of what the parties did as well as what they said. Conclusion and orders 168 The findings identified above suffice to conclude that Ann-Marie holds a 50 percent share of the house pursuant to a common intention constructive trust. 169 The requirements of common intention are, on my findings, made out in relation to each of Ann-Marie, Zane and Beau. Each of them intended from the time the house was purchased that Ann-Marie would have a proprietary interest, and Ann-Marie assumed liability for a considerable share of the liability for the loan to Liberty, and proceeded over many years to contribute to the mortgage repayments, and assumed responsibility for other household liabilities. As such, Ann-Marie acted to her detriment. Though all of the mortgage repayments came out of Zane’s bank account, in a practical sense he did not fund all of the repayments because it was clear that Ann-Marie had made regular and significant transfers to his account for the purpose of him paying the Liberty mortgage. It was also accepted by all parties that Beau had contributed to the mortgage repayments in the amount of $10,400. -- 47 of 48 -- [2026] SADC 13 44 170 Further, I have concluded that the quantum of Ann-Marie’s interest in the house represents a 50 percent co-ownership share consistent with what I found to be the intentions of Ann-Marie, Zane and Beau from the time that Beau ceased contributing to the mortgage repayments, when Ann-Marie also assumed a greater share of the liability for those repayments. It follows that Zane also holds a 50 percent co-ownership share of the house. 171 What flows from these conclusions is a question of whether I should make any orders for equitable accounting in favour of the Crown, standing in the shoes of Beau, to recognise Beau’s financial contribution to the acquisition of the house. Alternatively, it seems the Crown would be entitled (standing in the shoes of Beau) to an indemnity for expenses it has incurred as trustee.149 Further subsidiary questions arise as to what interest rate should apply to the Crown’s entitlement to any reimbursement. 172 I therefore propose to make orders reflecting the decision to declare a constructive trust over the house in favour of Ann-Marie (as a 50 percent interest), but note there are consequential matters flowing from this that will also need to be addressed. I will provide the parties with an opportunity to provide me with proposed draft orders, including as to costs. I make the following orders: 1. The Crown and the first and fourth interested parties are to supply by email to my Associate agreed orders reflecting these reasons, or, in default of agreement, the orders each seeks and submissions in support of such orders by 4pm, 23 March 2026. 2. The matter to be listed before me for directions at 8.45 am on 25 March 2026. 149 Samawi v Faraone [2025] NSWSC 970 at [272] (Leeming JA). -- 48 of 48 --