[2025] SASC 162

Applicants: DANIEL NINO CHIARIERI AND LAURA JAYNE CHIARIERI Counsel: MR M DOUGLAS - Solicitor: HARPER DAVISON SOLICITORS Respondent: BARBARA DIANE MORPHETT In Person Hearing Date/s: 09/09/2024 to 10/09/2024, 30/10/2024, 14/02/2025, 18/02/2025 File No/s: CIV-23-013841 A SUPREME COURT OF SOUTH AUSTRALIA (Civil) 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. CHIARIERI & ANOR v MORPHETT [2025] SASC 162 Judgment of the Honourable Justice Stein 26 September 2025 EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - RESULTING TRUSTS - REBUTTAL OF IMPLICATION REAL PROPERTY - PARTITION OF LAND - PARTITION OR SALE IN PARTITION ACTIONS - COMPENSATION FOR IMPROVEMENTS REAL PROPERTY - PARTITION OF LAND - PARTITION OR SALE IN PARTITION ACTIONS - SALE IN LIEU OF PARTITION The applicants, a husband and wife, who have since separated, each hold a one-tenth share in the wife’s family home, majority-owned by the wife’s mother, the respondent. The applicants seek a declaration that the respondent holds part of her registered an eight-tenths share in the family home on implied trust either as a constructive trust or a resulting trust. The applicants assert a common intention that the applicants were to assist the respondent in obtaining finance to maintain the respondent’s ownership of the home following the settlement of the respondent’s divorce proceedings on which basis the applicants would be registered on the certificate of title in equal one-third interests along with the respondent. The respondent admitted she promised that the applicants would be registered on the title. However, the extent of this promise and its effect on the applicants and their interest in the family home were at issue during trial. The applicants, in the alternative, asserted the respondent holds part of her registered interest on a resulting trust in accordance with their financial contribution. In addition to the declaratory relief, the applicants seek an increase to their interest in equity on the basis of the applicants’ contribution to improvements made to the family home during its joint occupation. -- 1 of 75 -- Held: 1. The presumptions of advancement and resulting trust are excluded by the facts as found; 2. The applicants are entitled to a declaration in their favour that the respondent holds a 21.5 percent share of the family home on trust for the applicants in equal shares of 10.75 percent in addition to the applicants’ pre-existing registered legal interest of one-tenth each; 3. The applicants are not entitled to a further increase to their proprietary interest on the basis of their contributions to improvements; 4. The true beneficial interests of the parties at law and in equity are 20.75 percent to each of the applicants and 58.5 percent to the respondent; 5. As the applicants’ joint interest is short of one moiety, they are not entitled to seek a sale under the Law of Property Act 1936 (SA) s 70. The Court will hear further from the parties in relation to the applicants’ application for sale instead of partition pursuant to the Law of Property Act 1936 (SA) s 69. Law of Property Act 1936 (SA) ss 69, 70, referred to. Baumgartner v Baumgartner (1987) 164 CLR 137; Giumelli v Giumelli (1999) 196 CLR 101; Soulos v Pagones (2023) 416 ALR 181, discussed. Browne v Dunn (1893) 6 R 67; Brickwood v Young (1905) 2 CLR 387; Perman v Maloney [1939] VLR 376; Wirth v Wirth (1956) 98 CLR 228; Squire v Rogers (1979) 27 ALR 330; Calverley v Green (1984) 155 CLR 242; Muschinski v Dodds (1985) 160 CLR 583; Mitchell v Cullington [1997] ANZ ConvR 342; Nevin v Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300; BM v AM [2003] IEHC 170; Francis v Francis [2009] SASC 363; Sidhu v Van Dyke (2014) 251 CLR 505; Bosanac v Commissioner of Taxation (2022) 275 CLR 37; King v Fister [2022] QCA 47; Galati v Deans [2023] NSWCA 13, considered. -- 2 of 75 -- CHIARIERI & ANOR v MORPHETT [2025] SASC 162 Civil 1 STEIN J: In December 2017, pending the birth of their first child, the applicants, Mr Daniel Nino Chiarieri and Mrs Laura Jayne Chiarieri were staying with Laura’s mother, Ms Barbara Dianne Morphett, the respondent, at a property at 118 Brookman Road, Meadows (“the Property”).1 At the time, Barbara was entangled in matrimonial property proceedings with her then husband. Daniel and Laura claim that, while they were staying with Barbara, Barbara told them she was afraid she may lose the Property, she would not be able to keep it without help and, if they helped her with finance to keep the Property, they would be registered on the Certificate of Title (“title”) in equal thirds with her. They claim Barbara also said they could live on the Property with her, rent out Daniel’s home in Murray Bridge and, if they assisted to make a granny flat on the Property habitable, when their family grew, Barbara would move out to the granny flat. Daniel and Laura assert that, as a consequence, they changed their plans, moved in with Barbara, provided finance for the Property by becoming co-mortgagors, paid expenses and performed works on the Property. In April 2019, Daniel and Laura were registered on the title as tenants in common with a 10 percent ownership interest each, with Barbara holding the remaining 80 percent interest. The relationship between Laura and Barbara irretrievably broke down in late 2021, after events which I describe below, and in early 2022 Daniel and Laura moved back to Murray Bridge. 2 Daniel and Laura bring a claim against Barbara in relation to the Property. Daniel and Laura’s primary case is that Barbara holds, in equity, a one-third interest in the Property in her own right and holds the balance of her registered 80 percent interest on constructive trust for Daniel and Laura, each as to one-third. Daniel and Laura’s alternative case is based on Barbara holding a portion of her registered 80 percent interest in the Property on a resulting trust for them to the extent of their provision of purchase moneys by way of liability under a mortgage. 3 On either case, Daniel and Laura also allege that they are entitled to an increase in their equitable ownership of the Property to the extent of the value of their contributions and improvements made to the Property. 4 Daniel and Laura seek, by way of remedy, a declaration as to the equitable ownership interests in the Property. In the event this Court determines their interest is equivalent to a moiety or greater, they seek orders for a sale and distribution of proceeds in a manner that reflects the parties’ legal and equitable interests and contributions pursuant to s 70 of the Law of Property Act 1936 (SA) (the “LP Act”). If this Court determines Daniel and Laura’s ownership interest is less than a moiety, they ask the Court to make orders for a sale and distribution of proceeds in a manner that reflects the parties’ legal and equitable interests and 1 For ease of reference, without intending any disrespect, I will refer to the parties by their first names. -- 3 of 75 -- [2025] SASC 162 Stein J 2 contributions to the Property pursuant to s 69 of the LP Act in circumstances where a sale would be more beneficial to the parties than partition. 5 Barbara represented herself prior to, and during, the trial. 6 For the reasons below, I am satisfied on the balance of probabilities that: • In late 2017, Barbara represented to Daniel and Laura that if they assisted her to retain the Property, they would be registered on the title, and in the future, she would move to the granny flat on the Property. • Daniel and Laura agreed to assist Barbara to retain the Property in reliance on Barbara’s representations. • In April 2018, Laura swore an affidavit deposing to willingness to assist Barbara which affidavit was filed in the Federal Circuit Court. • Orders were made by the Federal Circuit Court which provided for Barbara to retain the Property on certain conditions which included discharging existing mortgages. • In reliance on Barbara’s representations and to their detriment, among other things: − Daniel rented out the property he owned in Murray Bridge (“Guerin Road property”); − Daniel and Laura moved to the Property to live with Barbara; − Daniel and Laura successfully applied with Barbara for finance and became liable as co-mortgagors in respect of the mortgage over the Property which secured the loan made to Barbara, Laura and Daniel; − Daniel and Laura performed works on the Property, including to the granny flat, and incurred expenses. • In 2019, a transfer was lodged as a consequence of which Daniel and Laura were registered on the title as to a one-tenth interest each and Barbara’s interest was registered as eight-tenths. Daniel and Laura only became aware of this fact in about July 2020. • In late 2021, when expecting their third child, Daniel and Laura asked Barbara to move to the granny flat but Barbara refused. The relationship between Laura and Barbara then completely broke down and, in early 2022, Daniel and Laura moved away from the Property. • While I am not persuaded on the balance of probabilities that Barbara promised a one-third interest or equal interests on the title to each of Daniel -- 4 of 75 -- [2025] SASC 162 Stein J 3 and Laura, I am satisfied that Barbara, Laura and Daniel shared a common intention that Daniel and Laura would be registered on the title. • The conclusion which best gives effect to the parties’ intention at the time is that Daniel and Laura were to be registered on the title in shares representing their financial contribution to Barbara retaining the Property. • Daniel and Laura’s financial contribution to Barbara retaining the Property is best represented by their financial liability under the mortgage agreement as a percentage of the value of the Property at the time of entry into the mortgage. Their financial liability was two-thirds of the AFG mortgage of $522,860. That represented 41.5 percent of the assessed value of the Property at the time of settlement, being $840,000. As Daniel and Laura are registered on the title in interests of only one-tenth, or 10 percent, each, Daniel and Laura are entitled to a declaration that Barbara holds 21.5 percent (10.75 percent each) of her registered interest in the Property on constructive trust for them. • Such a declaration is to give effect to the intention that Daniel and Laura are entitled to registration of a 20.75 percent interest each and accordingly takes into account the fact that Daniel and Laura are already registered in interests of one-tenth or 10 percent each. Barbara thus holds 58.5 percent of the Property on her own account. • Daniel and Laura are therefore entitled to a declaration that Barbara holds on constructive trust for each of Daniel and Laura a 10.75 percent interest, totalling 21.5 percent of her 80 percent registered interest in the Property. 7 For the reasons I set out below, I am not satisfied that Daniel and Laura should have their ownership interests increased on the basis of their asserted contribution to the increase in value the Property over the course of their joint occupation. 8 As Daniel’s and Laura’s interest in the Property is less than a moiety, I am required to consider the factors set out in s 69 of the LP Act in determining whether sale would be more beneficial than partition. I will hear from the parties before making any such orders. Statement of claim 9 In order to assist in understanding the positions taken at trial, I set out below a high level summary of the pleadings. 10 In their statement of claim, Daniel and Laura pleaded matters I have referred to in the introduction above. In essence, in late 2017, while residing with Barbara prior to the birth of their first child, Barbara asked for assistance to retain the Property and said that if she was unable to do so, Barbara would suicide. Barbara represented that if Daniel and Laura provided finance to assist in retaining the -- 5 of 75 -- [2025] SASC 162 Stein J 4 Property as part of the matrimonial proceedings and then assisted in completing the then semi-completed granny flat on the Property, Barbara would allow Daniel and Laura to move into the Property and she would register Daniel and Laura as tenants in common on the title together with herself with each holding a one-third interest. The statement of claim pleads that Barbara represented that, once completed, she would rent out the completed granny flat until Daniel and Laura’s family had grown such that space in the house became an issue at which point Barbara would relocate to the granny flat. 11 Daniel and Laura pleaded that they agreed to assist Barbara in reliance on the representations she made and, after moving into the Property in May 2018, Daniel and Laura paid various costs and expenses and performed work on the Property including to complete the granny flat. 12 Daniel and Laura plead that they first became aware that their registered interest in the Property was 10 percent each in July 2020 when Barbara revealed this to Laura during an argument. 13 In November 2021, in reliance on previous representations, Daniel and Laura asked Barbara to make arrangements to relocate to the granny flat as Laura was then pregnant with her third child. Daniel and Laura plead that Barbara became upset and alleged that Daniel and Laura were expanding their family to pressure Barbara to move out of the house. 14 Daniel and Laura plead that but for Barbara’s representations, in reliance on Barbara’s representations and to their detriment, they would not have: 1. assisted Barbara in the matrimonial proceedings through Laura deposing an affidavit in those proceedings; 2. undertaken works to make the Guerin Road property tenantable; 3. moved into the Property to support the mortgage application; 4. undertaken works and improvements to the Property; 5. entered into mortgages jointly with Barbara; 6. paid approximately $18,000 in mortgage repayments in addition to the non-mortgage related costs of the Property, including approximately $12,000 in council rates; and 7. requested that Barbara move to the granny flat in satisfaction of her prior promise and, when that request was refused, taken the necessary steps to relocate back to the Guerin Road property. 15 Daniel and Laura plead that they relied on Barbara’s representations and accordingly she should be estopped from resiling from her promises and therefore -- 6 of 75 -- [2025] SASC 162 Stein J 5 should be declared to hold a one-third interest in the Property on her own account and the balance on constructive trust for Daniel and Laura. Alternatively, Daniel and Laura sought a declaration that Barbara holds part of her share in the Property on resulting trust to correspond with their provision of purchase funding by way of liability under the mortgage. 16 In addition, Daniel and Laura plead that Barbara should be estopped from taking advantage of their contributions to the Property by payment of contributions to the mortgage and costs of the Property and improvements to the Property. 17 Daniel and Laura asked the Court to grant declaratory relief by way of a determination of the legal and equitable interests in the Property and further asked the Court to make orders for sale of the property and a distribution of proceeds according to the parties’ legal and equitable interests and contributions to the Property. Filed defence 18 In her filed defence, Barbara admitted many of the background facts but denied the principal contentions regarding the representations made in December 2017 and Daniel and Laura’s reliance on those representations. Barbara denied that she threatened to take her life. Barbara pleaded that Laura agreed to financially assist her to retain the Property as part of the matrimonial proceedings without any conditions except for the ability to reside at the Property. Barbara pleaded that she told Laura she would register Daniel and Laura on the title, but specific percentages were never discussed. 19 Barbara pleaded that Daniel and Laura only paid around half of the council rates; did not contribute to the mortgage from April 2018 to February 2021; and most of the works conducted on the property by Daniel and Laura were completed without first consulting her and were not completed to an adequate standard and were defective. 20 Barbara pleaded that the Guerin Road property was not used as security for the mortgage applications. 21 Barbara believed Daniel and Laura were aware of their registered ownership interests in the Property. 22 Barbara admitted there was a vague plan that she would move out of the house years in the future but pleaded that she had never promised to move out of the house so soon after Daniel and Laura started living at the Property. 23 Barbara pleaded that Daniel and Laura’s contributions were less than asserted by them. -- 7 of 75 -- [2025] SASC 162 Stein J 6 24 Barbara asked the Court to dismiss Daniel and Laura’s claim in its entirety, refuse to make the orders sought and grant declaratory relief by way of a determination that Barbara owns 100 percent of the Property. Background 25 I commence by setting out in narrative form the matters which were not in contention. 26 The Property was purchased in 1993 by Barbara and her then husband, Bruce Morphett. Laura is the daughter of Barbara and Bruce and she resided at the Property until October 2015 when she moved out in consequence of issues with her father. Thereafter, Bruce and Barbara separated and Bruce moved out of the Property. In September 2016, after Bruce had departed, Laura returned to the Property. 27 Daniel and Laura commenced a relationship in December 2016 and subsequently started living together at the Guerin Road property which was purchased by Daniel in 2016. They married in December 2019 and together have three children born in January 2018, December 2020 and August 2022. 28 In December 2017, Daniel and Laura moved to the Property for a short time during the final stages of Laura’s first pregnancy and stayed there until February 2018 when they returned to the Guerin Road property. 29 An affidavit was sworn by Laura (“matrimonial proceedings affidavit”) and filed in matrimonial proceedings between Barbara and Bruce (“matrimonial proceedings”) in April 2018. That affidavit assumed some significance in the trial because it did not strictly reflect the claim made by Daniel and Laura in these proceedings. I return to address the matrimonial proceedings affidavit below. 30 On 19 April 2018, orders were made by the Federal Circuit Court of Australia. The effect of the orders was, among other things, that Bruce was to transfer to Barbara, at her expense, all of his interest in the Property. Barbara was obliged to discharge, at her sole cost, a joint Adelaide Bank home loan which was secured against the Property and to obtain from Bruce a complete release. Barbara also had to pay to Bruce the sum of $44,500. Barbara had to discharge other mortgages. Barbara retained for her sole use and benefit, free from any claim of Bruce, the Property and a 50 percent interest in another property in Currency Creek, together with personal property. 31 In May 2018, Daniel and Laura leased out the Guerin Road property and moved to the Property. 32 On 9 November 2018, Ms Burke, Barbara’s broker, sent to Australian Finance Group Home Loans (“AFG”) a loan application form with a covering memorandum which referred to the fact that Barbara was fully aware that “Daniel and Laura will be going on the Title”. The loan application form recorded as -- 8 of 75 -- [2025] SASC 162 Stein J 7 applicants for the loan each of Barbara, Laura and Daniel with the Property offered as security for the loan. The Guerin Road property was not included as security for the loan. The memorandum recorded a recent valuation verifying the value of the Property at $840,000. 33 In November 2018, Barbara, Laura and Daniel, together signed an application to AFG for finance in the amount of $522,860. 34 On 6 December 2018, First Mortgage Services Australia Pty Ltd sent to Ms Burke correspondence confirming approval by AFG of the loan amount of $522,860 in respect of the Property with the borrowers named as Barbara, Laura and Daniel. All three signed the documentation. The account from which loan payments were to be deducted was an account in Barbara’s name. The interest rate on the AFG loan was 5.24 percent per annum. The Property was valued at $840,000. 35 On 14 April 2019, Barbara and Laura signed a client authorisation to instruct a solicitor from SE Lawyers, Barbara’s solicitors, in relation to a conveyancing transaction. On the same day, each of Barbara, Laura and Daniel met with a Justice of the Peace to verify identity documents. 36 On 16 April 2019, a Lands Titles Registration Office transfer was lodged, pursuant to which, for stated consideration of $168,000, the Property was transferred from Barbara to Barbara as to an eight-tenths share and each of Daniel and Laura as to a one-tenth share as tenants in common. The documentation was signed on behalf of Barbara by the solicitor from SE Lawyers Pty Ltd. The transfer was registered on 16 April 2019. 37 On 25 November 2020, Herron Todd White South Australia Pty Ltd issued a valuation following an inspection on 19 November 2020 for the purposes of an application for a mortgage from the Commonwealth Bank of Australia (“Commonwealth Bank”). The market value of the Property was assessed at $900,000. 38 In December 2020, the parties refinanced the joint mortgage with the Commonwealth Bank providing finance in an amount of $516,700. 39 On 10 February 2021, each of Barbara, Laura and Daniel received from the Commonwealth Bank a letter informing them that their home loan was now finalised. The documents recorded the borrowers as Barbara, Laura and Daniel with a balance owing as at 10 February 2021 of $516,246. 40 In April 2022, Daniel, Laura and their children moved out of the Property and into the Guerin Road property. 41 The Property remains subject to the joint mortgage with the Commonwealth Bank. -- 9 of 75 -- [2025] SASC 162 Stein J 8 Applicants’ lay evidence Daniel Nino Chiarieri Affidavit 42 Examination in chief was elicited by way of affidavit.2 43 Daniel is married to Laura, but they are now separated. In April 2016, Daniel purchased and commenced living at the Guerin Road property which is a five bedroom and two bathroom home. In December 2016, Daniel commenced a relationship with Laura. 44 Daniel deposed to being aware Laura was experiencing difficulties living at the Property following her parents’ separation particularly when her father would visit and cause conflicts. 45 Daniel described the Property as comprised of a large home and a very large farm shed with horse stables, a hay shed and a workshop, as well as a granny flat partitioned off from the rest of the shed building. The granny flat was set up with two bedrooms, a lounge, kitchen and a combined bathroom and laundry, it was semi complete with doors, skirting boards and some carpet. 46 In mid-December 2017, Daniel and Laura moved in with Barbara during the latter stages of Laura’s pregnancy so that Barbara could provide some support as they were new parents. Daniel said he helped around the Property including by chopping up wood for Barbara. 47 At some time after Christmas 2017, but before New Years Day 2018, during a lunch, Barbara talked of fear of losing the Property in the matrimonial proceedings and stated she would kill herself if that eventuated. Daniel said that Barbara told them she was unable to retain the Property without financial help as she was only able to borrow $300,000 but needed $500,000. He recalled that Barbara was crying and Laura appeared concerned. Daniel said he offered to help financially. Barbara appeared relieved and he heard both Laura and Barbara say it sounded like a good idea if he and Laura were to buy the Property with Barbara to own it equally. Daniel proposed that they rent out the Guerin Road property to better position the parties to obtain finance given Daniel’s existing mortgage on the Guerin Road property. Daniel said that he had always expected the Guerin Road property to be his “forever home” for his family, but he said to Barbara that he was willing to help and to move to the Property on the basis he would be buying the Property with Barbara and Laura as equal owners. Daniel said Laura agreed. Daniel stated that he would not have gone on the mortgage or invested in the Property without Barbara’s clear representation that he and Laura would be equal owners with Barbara. 2 Affidavit dated 15 August 2024 was tendered as Exhibit A2. -- 10 of 75 -- [2025] SASC 162 Stein J 9 48 Daniel said he heard Laura express concern about not having enough space if they were living in the same house if Daniel’s and Laura’s family grew. He heard Barbara say she would move into the granny flat if their family grew larger and the granny flat was completed, but he could not say when this was said. Daniel stated that this representation made him more confident with moving ahead with the agreement. 49 Daniel recalled that prior to Laura giving birth he spoke to a lender at BankSA. He said he went to see him with Laura and told him about the plan to buy the Property with Barbara. Daniel was told he would require a letter from a real estate agent and he then obtained a letter from Jack Freestone, a real estate agent, regarding leasing the Guerin Road property. Daniel was later told that the application for finance would not be accepted. Daniel then had discussions with Barbara who told him she had found a higher risk lender called AFG. Daniel told Barbara he was willing to consider AFG. 50 In February 2018, Daniel and Laura returned to the Guerin Road property with their daughter. Daniel deposed to the works which were required to make the Guerin Road property ready for lease including tidying up and attending to general maintenance. Laura completed internal painting over a few weeks. Daniel asked a labourer to create a stud wall for the stairs and Daniel completed gyprocking and fitted a handrail. In exchange for the work, Daniel resprayed the labourer’s car. At a later date, an electrician updated the downlights. 51 In May 2018, Daniel and Laura moved into the Property with their baby over the course of a few weeks. This included moving some furniture to the Property and getting rid of other furniture, such as the dining table, which was not required because Barbara had such furniture. Daniel was aware Laura completed much of the moving using a friend’s trailer. 52 On the day Daniel and Laura moved out, tenants moved into the Guerin Road property. After six months the tenants moved out and Daniel engaged a real estate agent to lease the Guerin Road property and shortly after a second tenant moved in. 53 Daniel deposed to spending the evenings and weekends for a month cleaning out the lounge room of the Property which was cluttered with Barabara’s mother’s belongings. 54 Daniel stated that sometimes Laura would tell him that bills needed to be paid, in which case he would ask Laura to ensure it was paid and to let her know whether to use cash or a bank account and, if so, which account. He would ask Laura to reimburse Barbara if she had paid the bill. Laura had access to Daniel’s bank accounts and a cash safe and would tell him when she used cash to pay bills and when she made electronic transfers. Daniel paid many of the bills in cash as he was often paid in cash and records were neither made nor kept. He never talked with Barbara about covering specific expenses. -- 11 of 75 -- [2025] SASC 162 Stein J 10 55 By reference to discovered bank statements in Barbara’s name, Daniel deposed to six specific transfers from Daniel and Laura to Barbara on dates from November 2018 to September 2021 for items including council rates, paint, food shopping and an electricity bill. Daniel also deposed to contributions to council rates and costs of utilities at the Property while he lived by reference to his bank statements. He paid some expenses in cash but did not have records of those payments. 56 Daniel deposed to installing two 1.2 m gates bought for approximately $160 in addition to an existing 2.3 m gate as well as 200 mm2 fencing bought for approximately $400. This was installed using the existing posts to create two enclosures in which to keep Daniel’s and Laura’s pets. 57 In about August 2018, Daniel and Laura performed works on the granny flat to make it ready to accommodate a friend’s brother. This work included moving out feral cats living in the flat, removing soiled carpet, installing new carpet and completing tiling works in the kitchen and dining room with tiles and grout purchased by Barbara. After a couple of months, the tenant moved out of the flat. 58 On 9 November 2018, Daniel signed an application to AFG for a joint mortgage together with Laura and Barbara. On 11 December 2018, Daniel went with Laura and Barbara to see a mortgage broker to sign a home loan agreement with AFG. The broker witnessed their signatures. Daniel recalled Barbara saying that she would pay the mortgage repayments and that he and Laura ought to pay for anything else. 59 In 2019, a friend of Laura’s needed accommodation on short notice and Laura allowed her to use the granny flat. Daniel was told by that tenant that she was paying a small rent payment to Barbara. 60 On 14 April 2019, Daniel went with Laura and Barbara to an appointment with Barbara’s solicitors to arrange the transfer of the Property into their names. Daniel said he signed a document and provided identification. He attended on the understanding the signing of the document would not interfere with the promised equal ownership stake and he did not see any document or sign anything that indicated he would receive less than a one-third ownership interest in the Property. 61 Daniel spoke of buying a letterbox for approximately $320 and installing it using a concrete footing and bolting the letter box at the front gate. 62 Daniel said that Barbara had committed to giving Daniel and Laura a cash gift to assist with funding their wedding but that did not eventuate, so Daniel and Laura extended the mortgage over the Guerin Road property in the amount of $20,000 with the Commonwealth Bank to assist with the wedding. Barbara did give him and Laura a cash gift of $20,000 a few days before the wedding which was on 15 December 2019. -- 12 of 75 -- [2025] SASC 162 Stein J 11 63 After the previous tenant moved out of the granny flat, Daniel expressed a desire to Laura and Barbara to complete the granny flat so that it was self-contained accommodation. He said that Barbara was content for Daniel and friends to complete the work and she said she would provide any materials she already had and purchase any other necessary materials. Daniel was aware that Laura had purchased some materials for around $700. After Christmas 2019, Daniel said he worked to install a flat pack kitchen purchased by Barbara which included necessary work by a plumber employed by Barbara using the existing hot water system. On 8 April 2020, the next tenant moved into the flat and Daniel was aware that the tenant transferred $800 for a bond to Laura and paid the first rent of $200 to Barbara. Daniel also said he installed curtains and a fly screen door to the flat at the request of the tenant. In 2020, Daniel bought pavers and paved a small patio area at the rear of the flat. 64 Daniel deposed to speaking to Laura and Barbara about converting the existing shed into a workshop so that he and his brother could conduct a small business from the Property and Barbara said they were welcome to run a business out of the shed. Daniel and his brother began work to clear out the shed using skip bins and trailers. Some items were returned to Bruce. In early 2020, Daniel epoxy coated and painted the shed floor with his brother with materials he purchased for approximately $200. A floor pulling rack was bought with his brother for $800 and installed. Daniel bought a roller door for $250 which was installed by a friend. Other items including panel beating equipment, steel tubing, an extraction fan, a café blind, and brighter lighting was installed. 65 Despite initial reluctance from Barbara, Daniel recalled that Barbara said she would allow Laura to repaint the interior of the house on the Property in a neutral white colour. Laura told him that she had purchased approximately 36 litres of paint for around $600 but was not sure of the exact amounts. In around July 2020, Laura arranged for an electrician to rewire the downlights in the house after speaking with Barbara and Daniel. About a month later, Laura completed the painting and Daniel recalled Barbara thought the result was ok. After the painting was complete, Laura fixed the downlights in their positions with screws. 66 Daniel stated that all the investments and improvements done to the Property were done on the understanding that he and Laura were joint two-thirds owners of the Property and, without such understanding, he would not have undertaken such tasks. 67 Daniel said during one weekend he heard commotion outside and then saw Laura come inside, upset, at which time she told him that she had an argument with Barbara. Barbara had said that their interest on the title of the Property was only 10 percent each and not one-third each as they had agreed. He convinced Laura to stay at the Property despite her wanting to move out that night. 68 On 27 August 2020, Daniel and Laura met with a solicitor who told them that their interest on the title was jointly 20 percent. Daniel stated that the solicitor -- 13 of 75 -- [2025] SASC 162 Stein J 12 advised them to contribute to the mortgage costs to demonstrate their interest in the Property was more than 10 percent each. Despite Laura’s anger, Daniel and Laura agreed to follow the advice and to remain at the Property. Daniel attempted to smooth over things between Laura and Barbara when there were disagreements. 69 In December 2020, Daniel attended a meeting at the Commonwealth Bank with Laura and Barbara for the purposes of refinancing the joint mortgage. He was told by Laura that she was paying half of the mortgage repayments. By reference to Laura’s bank accounts, Daniel said amounts totalling $3,850 were made to mortgage repayments from Laura’s account between 15 February 2021 and 30 April 2021. In addition, amounts totalling $12,550 in contributions to the mortgage repayments were contributed from Daniel and Laura’s joint account between 13 May 2021 and 30 March 2022. 70 In 2021, Daniel discussed with Barbara building a deck at the rear of the house at the Property. He said Barbara was content for him to do so. Daniel stated he bought concrete blocks and some timber to complete the job but abandoned the project after Laura told him that Barbara was upset about not being included in decisions regarding the Property. 71 Around Christmas 2021, Daniel stated he sat down with Laura and Barbara to discuss Barbara moving into the granny flat as Laura was then pregnant with their third child and the current tenant was moving out. He said that Barbara became upset and refused saying “I didn’t expect your family to grow so quickly”. Daniel said Laura told him it had to happen otherwise they had to move out. Daniel said tensions between Barbara and Laura were obvious and the living situation had become uncomfortable. 72 Soon after this, Daniel said Laura told him she could not stay at the Property any longer. Preparations were made to vacate the Property and to move back into the Guerin Road property, including Laura writing a letter to Barbara and Laura notifying the tenants of the Guerin Road property that they would need to vacate. Daniel stated that he, Laura and their children moved back to the Guerin Road property in April 2022 and ceased contributing to the mortgage repayments and other costs of the Property. Around this time, due to financial stresses related to being out of work due to contracting COVID-19, Daniel sold some items to cover expenses to the value of about $2,500. 73 Daniel said that on or about 26 April 2022, Barbara attended at Daniel’s parents’ house and delivered papers for them to sign regarding the discharge of the mortgage and a declaration that he and Laura had agreed to give up their interest on the title to the Property. Daniel refused to sign the documents as he wanted to obtain legal advice. Laura agreed. Daniel said Laura wanted to end the joint mortgage but did not agree that they had no ownership interest in the Property. -- 14 of 75 -- [2025] SASC 162 Stein J 13 Cross-examination 74 Barbara commenced cross-examination by asking Daniel questions about the discussion he had alleged to the effect that she may lose the Property, in which case she would kill herself, and that she could not keep the Property without financial help. Barbara did not ask Daniel any questions which directly or indirectly suggested that such a conversation did not occur. Cross-examination focused on Daniel’s statement that Barbara told them she had tried to secure finance from People’s Choice Credit Union. Barbara in effect put to Daniel that she had not done so at that point in time, and she only tried to source money after 19 April 2018. Daniel responded that he thought Barbara had said she had gone to People’s Choice Credit Union to secure $300,000 but accepted he could be wrong and it may not have been People’s Choice Credit Union. 75 Barbara cross-examined Daniel about the timeframe within which he asserted she contacted AFG. Barbara put to him that she only went to AFG in November 2018. Daniel said he thought Barbara went to AFG around the time she was trying to secure finance. 76 Barbara disputed Daniel’s claim that he did significant work on the family room, putting to him that there were only a few boxes in the lounge room. Barbara disputed the statement that it took a month to do the work and said she moved some of the boxes to the stable herself. 77 Barbara put to Daniel that she did not receive any rent from the first or second tenants. Daniel accepted he never saw any exchange of monies and could not say if rent was paid. Barbara put to Daniel that she had worked on the granny flat before the tenants moved in and progress did not continue because there were people living there. Daniel said that when the first tenant moved in there was not much in the granny flat at all and when the second tenant moved in, Barbara did some work to the shower to complete it and make it more comfortable. Barbara put to Daniel that she put together the flat pack kitchen and she did not receive any assistance apart from carrying the constructed items from the shed into the granny flat and putting them against the wall. Daniel disagreed that Barbara carried out 100 percent of that work. 78 Barbara disputed agreeing to construct decking. Daniel maintained he recalled a conversation about the deck, including in which direction timbers would be placed. 79 Barbara put to Daniel that, when asked to move into the granny flat, she did not state that she did not expect their family to grow as fast but rather said that there was a spare bedroom and the two older children could be roomed together. Daniel said he accepted she mentioned something about there being enough room, but said he and Laura wanted to raise their children with each having individual rooms. -- 15 of 75 -- [2025] SASC 162 Stein J 14 80 In relation to the deposition that Daniel said he was willing to help and move into the Property on the basis he was buying it as equal owners, Barbara put to Daniel that she did not say anything about percentages. Daniel agreed that nothing was said about percentages, but that Barbara put it as “equal owners”. The following exchange then occurred:3 Q. I didn’t mention anything about percentages or equals, all I said was the name would go on the title of the farm. Do you agree with that, Daniel. A. Yeah, yeah, there was an agreeance that Laura and I and Barbara would all go on to this title together, yeah, I agree with that. MR DOUGLAS: Your Honour, I rise not out of technicality, but I think there was a compound question and the witness has only answered one part of it. HER HONOUR: Yes. MR DOUGLAS: That there would be nothing wrong with Barbara saying ‘I didn’t mention the word “equal”, do you agree?’ HER HONOUR: Yes. XXN Q. I didn’t mention the word ‘equal’, do you agree. A. Look, going back that amount of time it’s hard to say if the word ‘equal’ was actually said but I was under the impression, or Barbara led me to believe that it would be under equal ownership. So if that can answer the question, but – Barbara then said she disagreed with the “equal” part and what she said at the time was that they would be on the title. 81 In relation to the discussions about the granny flat, Barbara put to Daniel that she said in a few years she may move to the granny flat and give them more room. Daniel responded that it was always said that if the family grew larger then Barbara would move out to the granny flat. 82 Barbara referred to the paperwork signed on 14 April 2019 (which resulted in the transfer of the Property) and asked Daniel whether he asked questions and looked at what he was signing. Daniel responded that he signed the documents but did not recall asking too many questions because he trusted Barbara. Laura Jayne Chiarieri Matrimonial proceedings affidavit 83 As set out above, on 12 April 2018, Laura swore an affidavit which was filed in the matrimonial proceedings. I return to address the evidence about the circumstances in which that affidavit was prepared and affirmed below. 3 TT41.17-41.37. -- 16 of 75 -- [2025] SASC 162 Stein J 15 84 The matrimonial proceedings affidavit stated that Laura and her partner, Daniel, were very keen to assist her mother to retain the property and in that respect had agreed to lease out their Murray Bridge North property and move to the property with their infant daughter. The affidavit continued as follows:4 I confirm that my partner Daniel and I are very keen to assist my mother to retain the Brookman Road, Meadows property. In that regard we have agreed to lease out our Murray Bridge North property and move to the Brookman Road, Meadows property with our infant daughter. We have applied to The Peoples [sic] Choice Credit Union to borrow Two Hundred Thousand Dollars ($200,000) to assist my mother to discharge the various matrimonial loans secured against the said Brookman Road, Meadows property. It has been agreed between my mother, my partner and myself that in the event that my mother is permitted to retain the said property, then my partner and I will also be registered as tenants in common on the said Title, to be apportioned in accordance with our respective financial contributions. 85 In the affidavit Laura stated that she could recall that during her adolescence her father would consume beer. The typed version of the affidavit stated that he would consumer “a 30 bottle slab of beer every two days”. The copy of the affidavit tendered during trial had been amended with the word “bottle” crossed out and the word “can” had been handwritten above the deleted word. The handwritten amendment was not signed or dated. 86 The affidavit was affirmed before a Justice of the Peace in Murray Bridge on 12 April 2018. Trial affidavits 87 Initially, one affidavit affirmed by Laura and dated 15 August 2024 was tendered.5 After Barbara successfully applied to re-open in circumstances I address below, Laura deposed to further matters in a second affidavit dated 3 February 2025 which was tendered.6 88 I summarise first the evidence contained in Laura’s first affidavit before returning to address the second affidavit and subsequent oral evidence later in my reasons. 89 Laura grew up at the Property but moved out in 2015 due to conflict and violence in the home and her father’s alcoholism. Laura rented a room for a period in Mount Barker in 2016 before moving into another property owned by her parents. Later in 2016 when her father moved to that property, Laura moved back to the Property to live with her mother. 90 Laura commenced a relationship with Daniel in December 2016 and moved into the Guerin Road property in January 2017. She said she enjoyed the Guerin 4 Exhibit A1 – Bundle of documents numbered 1-27, p 2. 5 Exhibit A3. 6 Exhibit A6. -- 17 of 75 -- [2025] SASC 162 Stein J 16 Road property as it was spacious and comfortable, she saw that Daniel had made improvements to it and Laura also made improvements while residing there. 91 In December 2017, Daniel and Laura spent three to four weeks at the Property with Barbara due to concerns their first child may be born early. Laura recalled Barbara stating that she wanted to keep the Property but would need financial assistance to do so. Barbara told Laura that she and Bruce were fighting over who would get which of the three properties they owned, which include the Property. Barbara told Laura she would not be able to keep the Property without help. 92 Laura recalled that one afternoon prior to the birth of her first child, Barbara came into the room where Daniel and Laura were sitting and said words or words to the effect “I’m in a position where if I lose this property to your dad, I am going to kill myself on this property because I can’t leave this property and that way my ashes can be spread over the property so I don’t ever leave”. Laura became emotional. She said she was in tears and really shocked by what her mother had said. Laura said she and Daniel stated that they would do what they could to assist in retaining the Property. 93 Laura said that Barbara stated that if Daniel and Laura would agree to help her with finance to keep the property then Daniel and Laura would be registered on the title in equal “thirds” with her and that Daniel and Laura could reside at the Property with her. Laura said her intention at the time was to move back to the Guerin Road property after the birth of her first child as their long term home. However, the offer to become equal owners of the Property meant that Laura was prepared to move her family to the Property and invest financially as well as emotionally and with time and labour and take on the liability of the mortgage. 94 During this conversation, Laura stated that she was concerned that if she and Daniel had more children, there would be a need for more space. Laura recalled that Barbara stated that in the event their family grew, she would relocate to the granny flat if Daniel and Laura could do the work to complete it. 95 In February 2018, Daniel and Laura moved back to the Guerin Road property and commenced work to prepare it to be rented, which included works to the staircase and repainting the house. Barbara occasionally visited to assist with minding her grandchild and with tasks including painting. 96 In April 2018, Laura recalled attending at a Justice of the Peace with Barbara. Barbara collected her and drove her to the appointment. Barbara brought an affidavit with her (the matrimonial proceedings affidavit) which Laura signed before the Justice of the Peace and then gave to Barbara. Laura did not retain a copy. Laura said that when reviewing the matrimonial proceedings affidavit in preparation for her evidence in this matter she realised that there was an error in that it stated Daniel and Laura had sought finance from People’s Choice Credit Union. Laura said that was wrong, and they had spoken to their usual mortgage broker about a possible loan using the equity in the Guerin Road property. -- 18 of 75 -- [2025] SASC 162 Stein J 17 97 In May 2018, Laura together with Daniel and their baby daughter moved to the Property. Laura said on 9 November 2018, Barbara, Laura and Daniel attended at a mortgage broker to sign an application for finance with AFG. Laura recalled that on 11 December 2018, the parties attended again to sign a home loan agreement with AFG. They were made aware that the repayments could only come from one account. Laura said that Barbara told them that Daniel and Laura did not need to worry about making repayments but should be responsible for the council rates and utilities. 98 Laura deposed to paying expenses of the Property from May 2018. She stated that she spoke to Daniel and Barbara about paying council rates, utilities and other costs. These payments would be made from bank accounts in the name of Laura, Daniel or Daniel and Laura jointly, as well as with cash from their cash safe. Laura would occasionally reimburse Barbara with cash or via a bank transfer if Barbara had paid an invoice herself. Laura recalled consulting Daniel about certain bills and which accounts should be used to pay them or to reimburse Barbara. On reviewing her bank accounts, Laura accounted for $9,487.45 in contributions towards bills but noted that she recalled amounts in cash contributions were higher than that figure, but she could not quantify the amounts. 99 On 14 April 2019, Laura recalled going with Daniel and Barbara to see Barbara’s lawyer. At that meeting, Laura brought identification documents and signed and dated a form. She observed Barbara also sign the form. 100 Months prior to Laura’s wedding on 15 December 2019, Laura recalled Barbara telling her that she would help with costs of the wedding by giving them a cash gift of $20,000. On 30 October 2019, as Laura was yet to receive the promised gift, Daniel and Laura took out a joint mortgage with the Commonwealth Bank over the Guerin Road property with an additional drawing of $20,000 to account for wedding costs. On 9 December 2019, Laura recalled receiving the cash gift of $20,000 from Barbara and deposited it on the same day. 101 When she moved into the Property, Laura found that the lounge room full of her grandmother’s belongings. Laura recalled seeing Daniel clean up the clutter, doing most of the work. Barbara had put aside items that she wanted to keep or sell. Daniel moved the other items and told Laura he either disposed of, or donated, the items. 102 From about March 2020, Laura repainted the inside of the house using paint that she bought with cash. This took about five months. In July 2020, Laura contacted an electrician to install new down lights throughout the house and paid the invoice of $1,170 in cash. 103 Laura deposed to speaking to Barbara and Daniel about changing the existing fencing at the Property to keep their children safe and keep dogs out. In 2019, Laura saw Daniel hang two 1.2 m gates that he told her he had paid for in addition to a 2.3 m gate. Daniel also upgraded the horse fencing by adding more substantial -- 19 of 75 -- [2025] SASC 162 Stein J 18 sheep-type wire fencing Daniel said he purchased. Laura and Barbara both assisted a little with this work. Laura stated that the fencing was of good quality for the two years that she resided at the Property but may now need repair. 104 In 2019, Laura spoke to Daniel and Barbara about installing a letterbox and parcel box. The parties agreed to share the cost and Laura bought a letter/parcel box for about $420 in cash. 105 At the end of 2019, Laura recalled Daniel saying that he and his brother were planning to make a workshop in the large shed on the Property. Laura saw a new roller door had been installed, the floor had been coated and painted, an electrician had attended and installed brighter lighting and panel beating equipment and a spray booth had been installed. 106 Laura said she made changes to the Property on the understanding that she and Daniel were together two-thirds owners of the property and that, without that understanding, she would not have made those changes. Laura deposed to discussing proposed changes with Barbara and understanding that she had her consent. Afterwards, Barbara would say she had not agreed to changes which Laura found frustrating. Laura was trying to make changes to better suit the house for her family. Laura said she told Barbara that they wanted to build a timber deck, but she rejected the idea for fire-safety reasons. 107 Laura said she, Daniel and friends worked to complete the granny flat to be used as self-contained accommodation. The friends were paid through a labour exchange. Laura recalled purchasing a kitchen bench for $700 in cash and Daniel told her he had purchased patio pavers for $200 with cash. Laura assisted with friends to install a flat-pack kitchen and sink which Barbara said she had purchased. Daniel and Laura worked to complete the tiling in the bathroom, dining room and bathroom, and Laura observed Daniel installing the patio pavers and curtains. 108 On 8 April 2020, Laura received a bond payment for $800 from a tenant to the granny flat and transferred this amount to Barbara’s bank account. Laura was aware that the tenant was paying weekly rent to Barbara of $200 which totalled $20,800 for the period of 8 April 2020 to May 2022. Laura said the granny flat continues to be rented. 109 In July 2020 Laura was assisting with horses and said to Barbara that she was unhappy with the care of one of the horses and was unhappy generally with how things were going living at the Property and that it might be best to sell the Property and live separately. Laura said that Barbara responded by saying that Laura and Daniel would not be able to sell the Property as they only owned 20 percent of the Property jointly. Laura said that this was the first time she became aware of this. She was shocked and angry and threw the horse feed bucket she was carrying at Barbara and it hit her. Laura said that Barbara laughed and then Laura picked up the bucket again and threw it without making contact with Barbara. -- 20 of 75 -- [2025] SASC 162 Stein J 19 110 In August 2020, Daniel and Laura saw a solicitor who confirmed that they were registered on the title of the Property as each owning 10 percent. The solicitor said it would assist to show they owned more if they contributed to the mortgage rather than just to the costs of the Property and maintenance and improvements. 111 Laura said she felt shocked and betrayed but as she and Daniel were about to have their second child, they did not want to make big changes and Daniel said he did not want to “rock the boat”. Daniel and Laura agreed to remain at the Property and to contribute towards the mortgage. 112 In December 2020, the parties attended at the Commonwealth Bank to sign an application to refinance the joint mortgage which was accepted on 10 February 2021. Laura deposed to contributing an amount of $12,550 towards the joint mortgage between 13 May 2021 and 30 March 2022. 113 In late December 2021, while pregnant with her third child, Laura said she asked Barbara to move to the granny flat to allow the family more room. Laura said Barbara told her she would not and that Daniel and Laura were having children in order to force her out of her house. After this conversation, Laura recalled feeling unhappy about the living arrangements and Barbara breaking her promises. Daniel also said he was unhappy. Accordingly, Daniel and Laura decided to move out of the Property. Laura said she did not want to remain on the mortgage and told Barbara via email. 114 Laura, Daniel and the children moved back to the Guerin Road property in April 2022 after the tenants had left and they ceased paying for any costs of the Property. 115 Laura said that on 26 April 2022, she and Daniel were visiting Daniel’s parents. Barbara unexpectedly arrived and provided forms for Daniel and Laura to sign which Laura understood to be mortgage discharge forms and a form for Daniel and Laura to declare they had no further interest in the Property. Daniel and Laura took the forms, but they refused to sign the forms without seeking advice. Cross-examination 116 Barbara put to Laura that in December 2017, before her first daughter was born, Barbara had no idea where the matrimonial proceedings were going and what sort of finance she would need to raise. Laura said she could not remember. 117 Barbara said she had no recollection of mentioning a “third” and she then asked Laura when the conversation about equal “thirds” on the title took place. Laura said she could not recall a certain date or time, but it was after her daughter was born. Barbara put to Laura that she was disputing saying a “third”, or that she referred to any percentage or used the word “equal”. When asked whether there was any discussion over percentages, Laura said “no”. When asked whether “equal” shares on the title were ever mentioned, Laura said she recalled equal -- 21 of 75 -- [2025] SASC 162 Stein J 20 shares. Laura disagreed with the proposition that Barbara said they would be put on the title without mentioning shares. 118 Laura accepted that Barbara also worked on the granny flat. 119 Barbara stated that she did not recall bringing Laura an affidavit to sign and that she (Barbara) did not know anything about the content of the affidavit. Laura responded that Barbara collected her to take her to see the Justice of the Peace because she had a four month old baby and no driver’s licence. Laura said Barbara looked after her daughter while Laura went and got her affidavit signed. 120 Laura said they would have started paying council rates and utilities from May 2018 when they moved in. 121 Barbara asked Laura whether she read the paperwork for the transfer signed by Laura or asked questions in relation to the paperwork. Laura said she read the paperwork but did not ask any questions. She said she would have seen if 10 percent was written on the page, but she did not see that. 122 Barbara put to Laura that she disagreed with Laura’s evidence that she discussed painting the house and putting the downlights in with Barbara before the work was done. Laura maintained her position. Laura agreed the 2.3 m gate came from the shed, that is, it was not purchased. 123 In relation to the work performed in the granny flat, Laura said she tiled the kitchen and dining area and painted the doors. She accepted she paid only for the $700 kitchen bench and Daniel purchased patio pavers for $200. Laura did not accept that Barbara put together the flat pack kitchen on her weekends. Barbara put to Laura that the tiling was done in three nights, not six weeks. Laura responded that she was giving a time period over which tiling was done and it was not done in three consecutive nights. 124 Laura agreed that they refinanced the loan to get a lower interest rate. Laura agreed that after finding out in July 2020 they were each on the title for 10 percent, she and Daniel still went ahead in December 2020 with refinancing. Laura agreed that when Barbara made the statement about moving to the granny flat, she said maybe in a few years she may move to the granny flat to give them more room. 125 Laura accepted that she asked to be removed from the mortgage and the title of the Property but said she did not sign the paperwork because she and Daniel had invested in the Property. 126 Laura said she did not properly read the affidavit she signed in April 2018. She did not retain a copy of the affidavit to go back on it and reflect and she only had a short period of time to be able to read the affidavit whilst at the Justice of the Peace’s office. Laura said the handwritten change made on the second page of the affidavit (from “bottle” to “can”) was not her change. -- 22 of 75 -- [2025] SASC 162 Stein J 21 Respondent’s lay evidence Barbara Morphett Affidavits 127 Barbara prepared a tender book which included two affidavits deposed by her.7 Counsel for Daniel and Laura did not object to the admissibility of any aspects of Barbara’s affidavits or the documents she sought to tender, adopting a pragmatic and fair approach and largely limiting himself to submissions on the weight I should place on any of the evidence. 128 Barbara stated in her first affidavit8 that Daniel and Laura moved to the Property early December 2017 and moved back to the Guerin Road property in February 2018. They moved into the Property permanently in April 2018. 129 Barbara deposed to the AFG loan being for $522,860 and commencing on 16 April 2019 and stated she paid all repayments until 4 February 2021. The refinanced Commonwealth Bank loan was for $516,700 commencing on 31 December 2020. During the period from February 2021 and 30 March 2022 Daniel and Laura contributed to half of the mortgage, Daniel and Laura paid $15,900 and Barbara paid $15,300. The difference was because Daniel and Laura made extra payments. 130 Barbara said that the reason Daniel and Laura moved back to the Guerin Road property was because Barbara refused to move into the granny flat. She said initially Laura wanted their names removed from the mortgage and title, so in March 2022 Barbara arranged meetings at the Commonwealth Bank to refinance and gained approval. Around Easter 2022, Barbara attended at Daniel’s parents’ house to give her grandchildren easter eggs and to drop off the relevant documents to Daniel and Laura. Barbara stated Daniel and Laura refused to sign the documents and as a result the new refinanced loan and mortgage was not finalised. 131 Barbara referred to the matrimonial proceedings affidavit and stated that as there were no forthcoming funds from Daniel and Laura, they were given 10 percent each of the property as a gift. 132 Barbara stated that she assisted with preparing the Guerin Road property for lease including gyprocking, flushing, painting and babysitting. 133 Barbara deposed to contributing to bills for the Property in the amount of $34,639 in addition to electricity bills totalling $5,863.90, as well as contributing $20,000 to Daniel and Laura’s wedding. 134 Barbara stated that much of the work performed on the Property by Daniel and Laura was of a substandard quality. The works on the granny flat were not a 7 Exhibit R5, documents 27 and 28. 8 Exhibit R5, document 27. -- 23 of 75 -- [2025] SASC 162 Stein J 22 part of the agreement and Barbara was in no rush to complete the granny flat. She stated that Daniel and Laura wanted it completed to allow friends to move in. 135 Barbara said that in July 2020, she was assaulted by Laura and Laura told her they would sell the Property and that Barbara needed to pack her things and leave. Barbara then informed Laura that she and Daniel each owned 10 percent. She stated that she never hid this fact and that questions were not asked. There had never been an agreement for equal ownership. 136 Daniel and Laura moved out of the property on 1 April 2022. 137 In her second affidavit9 Barbara said the damage done to the Property by the improvements made by Daniel and Laura will cost significant amounts of money to remedy. 138 Barbara stated that for the period between 22 March 2018 and 4 March 2022, she paid a total of $7,404.35 in council rates and Daniel and Laura paid a total of $7,921.10. Barbara said she paid all the home insurance invoices from 3 April 2018 to 6 April 2022 for a total of $3,911.32. She also paid $600.50 in emergency services levy, $177 to the Department of Primary Industries and Regions, $4,358.71 in home phone and internet. Barbara said she contributed amounts towards the improvements and works on the house including $7,795.99 in repairs and maintenance, $1,146.25 towards fencing, $339.73 in gas bottles, $4,235.43 for finishing the granny flat for the period between 22 June 2019 and 5 March 2020 and 2,030.51 towards a solar unit for the period between 8 August 2021 and 19 April 2022. She referred to costs of feeding animals belonging to Daniel and Laura, to $20,000 given to Daniel and Laura for their wedding and to $3,150 given to Laura for bills. Examination in chief 139 Barbara’s affidavit evidence was supplemented by sworn evidence. 140 Barbara said that when she first approached Daniel and Laura about coming on the mortgage, they told her they had already discussed it, and they were happy to do so. They tried several places for finance which they finally obtained through AFG in November. The settlement did not occur until April the following year because Barbara’s ex-husband had not received finance until then and all the settlements needed to occur contemporaneously. 141 Barbara said they initially were quite happy but then she would find Daniel and Laura had done things to the house about which she had not been approached and was not happy about. She gave as an example the installation of a roller door which Daniel said he was installing because Barbara had agreed they could put in 9 Exhibit R5, document 27. -- 24 of 75 -- [2025] SASC 162 Stein J 23 a spray booth. Barbara said a lot of her things were being thrown out while she was away. 142 Daniel and Laura told Barbara they wanted her to move to the granny flat because they wanted all of the house. Barbara said she told them that the house has five bedrooms, Daniel and Laura had three bedrooms and a spare room, but Daniel and Laura said they wanted to keep it as a guest room. Barbara proposed the two children share a room. Barbara said she refused to move out to the granny flat and Daniel and Laura decided to move out of the Property. 143 Barbara said that she paid the entirety of the repayments required under the AFG mortgage agreement for about 18 months at a high interest rate. 144 Barbara explained that one of the properties (the subject of orders in the matrimonial proceedings) was sold and she described how she used her half of the proceeds, including giving $20,000 for Laura’s wedding. Meanwhile, the finance rate for AFG was high and interest rates had started dropping so Barbara approached the Commonwealth Bank and they agreed to refinance. The Commonwealth Bank refinanced the loan at an interest rate of 1.89 percent fixed rate for four years. At the time of the refinancing, Daniel and Laura commenced paying 50 percent of the mortgage. 145 Barbara said that she contributed to bills throughout. Because the power bills were so high, she installed a solar system which she was still paying off. 146 Barbara provided a list of bills she had paid, including power bills totalling in excess of $5,800. Barbara said she paid all of the household insurance, home, phone and internet, emergency services levy, payments for the solar system, property registration and mesh for a fence to keep the sheep and goats in. Barbara said she paid Laura money from time to time to help with household bills totalling $3,150 and council rates totalling $6,894. Barbara said that after Daniel and Laura moved in, she spent $4,235 on the granny flat and repairs and maintenance to the property of $7,795 during the time Daniel and Laura were living at the house. 147 By reference to emails and text messages contained in the tender bundle, Barbara said that Laura asked her to have Daniel and Laura’s names removed from the mortgage and the title. On 28 March, Barbara received approval for a home loan in her name for $500,000. Barbara then called Laura saying that she had the forms for them to sign. Daniel and Laura were at Daniel’s parents’ house so she drove to them and gave Daniel the papers. Daniel said he would go over the papers before they signed them and then told Barbara that the papers were with the lawyers. 148 When prompted about the conversation which occurred when Laura was heavily pregnant in about Christmas 2017, Barbara said she could vaguely remember that conversation. Barbara said she talked about the fact that she may need finance and she was not sure if she would be able to get it, depending on what -- 25 of 75 -- [2025] SASC 162 Stein J 24 she had to pay out. Barbara said Daniel and Laura said they would help her out and go on the mortgage. Barbara said she said that if they went on the mortgage they would be put on the title. Barbara said she told Daniel and Laura that “your names will go on the title if you help me out with the mortgage” and they were happy with that. Barbara said she did not say equal thirds or 10 percent or anything. She thought Daniel and Laura had said they would move in with her and rent out the Guerin Road property. Barbara said there was no discussion back then as to who would pay for what and that only came about at the time when they got the finance. 149 Barbara said that when they were doing the paperwork with the mortgage broker, the broker said the payments could only be taken from one bank account. The mortgage broker said she would take the payments from Barbara’s account because it was her house they were purchasing. Daniel and Laura then said they would pay the bills. Barbara agreed that, at that point, the arrangement was she would pay for the mortgage and they would pay some bills. 150 Barbara said that she did not give instructions to the lawyer for the preparation of Laura’s affidavit affirmed in support of the matrimonial proceedings. 151 Barbara said she had a valuation done in 2023 on the Property by Jackman and Treloar which valued the house at $1.17 million. 152 Barbara said there were inconsistencies in the amounts set out by Daniel and Laura concerning works on the granny flat cost, pointing to differences between Mr Smith’s valuation and Daniel’s affidavit. Cross-examination 153 In cross-examination, Barbara accepted that she did not have a relationship with Laura anymore and that she did not have contact with either Laura or Daniel. Barbara agreed she remains one of the three registered proprietors on the title to the Property but confirmed it is her case that neither Daniel, nor Laura, have any interest in the Property. Barbara accepted that the title records at least a 10 percent interest to each of Daniel and Laura and accepted that she had not sought finance to pay out any interest in the Property held by Daniel or Laura. Barbara’s position was she did not owe them anything and she should be permitted to keep the Property as its sole owner without paying anything to Daniel or Laura. Barbara said she was prepared to pay Daniel and Laura a small amount as to what they had put in, but she did not agree that she should pay for a proportion of the Property and the “small amount” she had in mind was nothing like 10 percent. 154 Barbara accepted that by the end of 2017 she knew she was financially separating with Bruce and she knew that her name was on four mortgages with him. Barbara accepted that she knew something would have to be done about the mortgages to disentangle her financial interests with Bruce. She agreed that one of them needed to raise money to pay the other out. Barbara accepted that towards -- 26 of 75 -- [2025] SASC 162 Stein J 25 the end of 2017, she was aware it was highly unlikely that that Bruce was going to have the capacity to raise money to pay her out because he was suffering from alcohol abuse and was not in a position to raise finance. 155 Barbara accepted that there was a limit on how much finance she could raise with her name on four mortgages. Barbara said towards the end of 2017 she believed her son would retain two of the properties and only the main properties would be in the settlement. She had no idea how much funds she would require. She did not know how much she would need to borrow. 156 Barbara agreed that once the orders in the matrimonial proceedings were made, she needed to raise more than $500,000 to comply with the orders. It was put to Barbara that she could see as early as late 2017 that she would need to raise a significant sum of money to separate her affairs from those of her ex-husband. Barbara maintained she had no idea how much she would be looking at borrowing. However, Barbara agreed that towards the end of 2017 she knew she was not going to raise the amount of money she needed on her own. 157 Barbara agreed that Daniel and Laura came to stay with her at the Property in December 2017 so she could assist with the last part of Laura’s pregnancy and, at that time, she and Laura were close. Laura was then in her early 20s and Daniel was a couple of years older. Barbara agreed that when Daniel and Laura were living with her in December 2017, they had meals together, including at Christmas time, and they discussed matters including the financial separation and she shared with them her concerns about how she could raise the money to keep the Property. Barbara said the Property where they were living was the property she wanted to keep and her ex-husband was trying to remove her from the Property. Barbara wanted to keep the Property because she had designed and built it and that is where she had raised her children. 158 Barbara agreed she was distressed in December 2017 about the prospect of having to leave the Property and she made her desire to remain at the Property clear in things she said to Daniel and Laura at that time. When asked about her distress, she agreed she cried in front of Daniel and Laura and that on one occasion said words to the effect that if she had to leave the Property she would kill herself and her ashes could be scattered on the Property so she would never have to leave. Barbara agreed that when she said those things Daniel and Laura were distressed for her, and she thought when she mentioned taking her own life that it would have made Laura cry. Barbara accepted that Daniel and Laura said in late 2017 words to the effect that they wanted to help if they could, but Barbara did not agree that Barbara was the one who mentioned them helping her to raise finance. Barbara said when she asked them if they would come on the mortgage with her, they said they had already discussed it and they were willing to do that. Barbara then accepted that she was the one who raised with Daniel and Laura coming on to the mortgage but said it was not on the day Laura cried and was at a later date. She agreed that she would not have expected Laura to forget her mother threatening to take her life when they had that conversation. Barbara conceded that she suggested -- 27 of 75 -- [2025] SASC 162 Stein J 26 to Daniel and Laura that if they came onto the mortgage, they would also have their names on the title. 159 Barbara said when Daniel and Laura came to live with her before the baby was born, they were going to move in with her for a while to help protect her from her ex-husband, but she agreed that was a temporary arrangement. Barbara agreed that Daniel and Laura’s plans changed around the discussions about coming onto the mortgage and the title. 160 Barbara disputed the suggestion that when she raised the prospect of coming onto the mortgage, Daniel raised a concern about how much finance he could attract while he was still paying the mortgage on the Guerin Road property. She did not agree that is what led to discussions about Daniel renting the Guerin Road property as an investment property. Barbara said when she asked if they would come on the mortgage, Daniel and Laura told her they had already discussed that, they were happy to do that and they were going to rent out the Guerin Road property and move in with her. She disagreed that the purpose of renting out that property was to make the three of them more attractive to a lender. Barbara did not accept that having the Guerin Road property as an income earning asset would have made Daniel more attractive to a lender than if he was trying to service two mortgages himself. 161 Barbara agreed that Daniel and Laura moved back Murray Bridge after their baby was born to fix it up as a rental property and after that was done the financial arrangements were made and all three became owners of the Property with their names on the mortgage. 162 It was put to Barbara that the effect of what she said in the conversation in December 2017 was to promise Daniel and Laura they would become the owners of the Property as their family home if they helped her keep living in the Property. Barbara said she told them they would go on the title and that way if anything happened to her, they would keep the Property. Barbara said she did not know that if Daniel and Laura went on the Property as tenants in common it would not necessarily mean the Property would be theirs. When asked if she agreed that the effect of the discussions was to assure Daniel and Laura that they would ultimately be the owners of the property as their family home, Barbara said if it had continued and they stayed there, then when she was gone they would have the Property. When it was suggested that the effect of what Barbara conveyed to Daniel and Laura was that the Property would ultimately be their family home in exchange for their coming on to the mortgage and the title, Barbara responded that that was “our dream” of what would happen. 163 When it was put to Barbara that she did not remember the words she used when she spoke to Daniel and Laura in late December 2017, she said she knew she said that if they came on the mortgage then their names would go on the title. However, she accepted she did not remember the full details of the conversation. Barbara maintained she never said “equal owners” but rather said Daniel and Laura -- 28 of 75 -- [2025] SASC 162 Stein J 27 would be on the title. Despite accepting her memory was vague, Barbara maintained she was not mistaken about that at all. Barbara said she did not mention any amounts, including about being only 10 percent owners. 164 When it was put to Barbara that the words she used were directed to persuade Daniel and Laura that if they took on the mortgage liability and came on the title the Property would be their family home, Barbara said they would live there with her and as she got older she would move out to the granny flat and it would become their family home. Barbara accepted that moving out to the granny flat was her answer to a concern that Laura raised with Daniel that they wanted to expand their family. Barbara agreed Daniel and Laura expressed reservations about moving in with Barbara because Laura was concerned there might not be enough space. However, Barbara denied saying to them that if the granny flat was made into independent living accommodation she would be prepared to move out to the granny flat as their family expanded. Barbara said she said in a few years she might move out to the granny flat so they could have the whole house. 165 When it was put to Barbara that she said all of those things because of her significant distress at having to leave the Property, Barbara responded that she was not prepared to leave the Property. When it was put to her that by coming onto the mortgage Daniel and Laura were making a very significant financial commitment, Barbara responded that they did not make a financial commitment because they did not contribute anything other than signatures and she paid the mortgage. However, she was willing to accept that Daniel and Laura were accepting a very serious potential liability if anything happened to her. When it was put to Barbara that she wished to persuade them to take on the liability and that is why she made promises about being prepared to move to the granny flat and putting their names on the title, Barbara said she was not wishing to persuade them to do anything. Barbara denied that raising with Laura the potential that she would take her life was applying pressure to Daniel and Laura to entangle their finances with hers so she could stay at the Property. Barbara denied that, saying that she was in an upset frame of mind and was not doing anything to try and entangle them at all. Barbara denied being well aware that in making the decision to go on the mortgage with her, Daniel and Laura were acting on the understanding that they would have substantial ownership interest in the Property. However, she agreed they were upending their lives to make arrangements so she could stay at the Property. She agreed Laura had bad memories of her experiences at the Property and Daniel, who was not then married to Laura, was being asked to do a significant thing in relocating to live together with his soon-to-be mother-in-law. When asked whether she maintained her evidence that she did not understand they were relying on getting the Property as a basis of being prepared to make those significant changes, Barbara responded that they were moving in with her, they wished to change their life, the farm would be a great place to raise their daughter and they did not want to stay at the Guerin Road property because someone tried to break in and she believed they were not happy there as a result. -- 29 of 75 -- [2025] SASC 162 Stein J 28 166 Barbara agreed the granny flat was not habitable in 2017 as it had no kitchen and would take work to make it liveable. Barbara said Daniel and Laura did very little work to make this happen. She maintained she did most of the work, not Daniel. 167 Barbara accepted that after Daniel and Laura made the Guerin Road property tenantable, they moved into the Property. She conceded they moved in at that time based on conversations towards the end of 2017 and thereafter, however, said she was unsure whether they were relying on things she said to them as their reason for moving in. 168 Barbara agreed that Daniel and Laura went on the mortgage and the initial mortgage involved borrowing funds of $522,860. 169 Barbara accepted that she could not have raised the money without Daniel and Laura on the mortgage and AFG was prepared to lend the money because all three names were on the mortgage. 170 Barbara said that she picked up Laura for the purposes of taking her to sign the matrimonial proceedings affidavit before a Justice of the Peace located in Murray Bridge. At the time, Laura was living in Murray Bridge. Counsel put to Barbara that Laura was not directly involved in the preparation of the affidavit. Barbara responded that she did not know who was involved in the preparation of it and she did not know who wrote the content. Barbara maintained she only picked Laura up and took her to get the affidavit signed and she did not know where it came from. She could not recall whether her lawyer suggested the affidavit be prepared and she did not know who wrote the document. She accepted that Laura was not legally trained. When it was put to Barbara that she knew in April 2018 that the affidavit was needed and that was why she was picking Laura up to take her to the Justice of the Peace, Barbara said the affidavit was not needed and the document would have done nothing for her settlement claim but was put in anyway. Barbara said she did not instruct her lawyers to do it. After it was signed by Laura, she thought she drove it to the lawyer’s office and the lawyer submitted it to the Court. She said she did not instruct anything. Barbara accepted she knew from her experience in dealing with lawyers that they needed her say so before taking a step on her behalf. The following exchange then occurred:10 Q. So, knowing that do you still continue to disagree with me that this affidavit was used in your family law case because you instructed your lawyers to use it. A. It was used in my case, yes. I don’t believe I instructed my lawyer to do it, it may have been something that my lawyer had discussed with Laura, I’m unsure, I can’t recall. Q. You brought this affidavit with you in an unsigned form when you picked Laura up to take her to the justice of the peace, didn’t you. 10 TT112.13-114.1. -- 30 of 75 -- [2025] SASC 162 Stein J 29 A. Did I? I can’t recall. Q. ‘I can’t recall’, you’re not saying I’m wrong about that, you’re just telling me ‘I don’t remember’. A. That’s right. Q. You didn’t provide Laura with a copy of this document before you arrived at the justice of the peace’s office, did you. A. I didn’t even see that affidavit myself until after it was signed. Q. When you arrived at the justice of the peace’s office that’s when Laura was given a copy of this affidavit. A. I don’t know. Q. You’re not saying I’m wrong, you’re just saying again you can’t recall. A. That’s right. Q. You were present during the meeting with the justice of the peace. A. No, I was looking after Aviana, in the car. Q. Before Laura went to see the justice of the peace you asked her to sign this affidavit, didn’t you. A. No, I don’t recall, I don’t even know where the affidavit come from and how it - all I know is that I took Laura to get it signed. Q. Do you remember it was a short meeting between Laura and the justice of the peace. A. It was fairly short. Q. Less than 10 minutes. Do you agree with that. A. It may have been 15 minutes, I’m not sure. Q. And the less you weren’t waiting with Aviana for a long time, were you. A. Not too long, no. Q. And based on your answers are you able to agree with me that Laura did not have a long time to read the document before signing it. A. It’s not a very long document, she would have time to read that document before signing it. Q. Did you see her read the document or not. A. No. Q. If you assume that she was given the document at the justice of the peace’s office, on your evidence she’s had less than 15 minutes with it. Is that correct. -- 31 of 75 -- [2025] SASC 162 Stein J 30 A. I can’t recall where the affidavit came from. Q. Laura gave you the affidavit once it was signed, correct. A. Correct. Q. She didn’t retain a copy, did she. A. We didn’t have a photocopier, no. Q. You took her home. A. Yes. Q. And you then took the original of the document to your family lawyers. A. Yes. Q. It was then used in your family law proceedings, wasn’t it. A. Yes. 171 Barbara then agreed that the handwriting on the affidavit inserting the word “can” above “bottle” was in her handwriting. Counsel put to Barbara that when she gave evidence that she had nothing to do with the affidavit that that was not correct, Barbara maintained she had nothing to do with the writing of the affidavit. Barbara then said she changed the affidavit after it had gone through court. 172 When taken to the statement in the matrimonial proceedings affidavit to the effect that Daniel and Laura would take an ownership interest in accordance with their respective contributions and asked whether Barbara accepted that was an accurate description of the agreement they made, Barbara said there was no financial contribution from them but they still got 10 percent each on the title. Counsel put to Barbara that the statement in the affidavit reflected instructions Barbara gave to her lawyers in around April 2018 about the arrangement she had made with Daniel and Laura. Barbara denied that proposition but could not explain where the terms of the paragraph came from. Barbara maintained her denial that the words were not prepared by her lawyers on her instructions. 173 Barbara stridently denied the suggestion that the instructions were inaccurate because the actual arrangement she had reached with Daniel and Laura was that they would be co-owners in equal shares. Barbara agreed she never showed a copy of the affidavit to Daniel. However, Barbara agreed that Daniel never told her that an agreement to take a share in the Property based on financial contribution was something he was prepared to make. Barbara denied the proposition that the affidavit did not reflect an agreement Laura said she was prepared to make. When it was put to Barbara again that at no time before signing the affidavit had Laura verbally expressed her agreement to come onto the Property on the basis of financial contributions, Barbara said she was unsure and was confused. When it -- 32 of 75 -- [2025] SASC 162 Stein J 31 was put to Barbara again that before signing the affidavit, Laura never verbally told Barbara she agreed to the terms expressed in the affidavit, Barbara said “no”. 174 On 14 April 2018, Barbara went to her conveyancer’s offices with Daniel and Laura for the purposes of verifying identities for the Property transfer into all three names. Barbara agreed that she was the only person who gave instructions to SE Lawyers in relation to the conveyance. When it was put to Barbara that she alone told SE Lawyers to record Laura’s interest on the Property as a tenant in common at 10 percent, Barbara said she gave them permission to do that and the lawyer told her not to go any higher, otherwise there would be trouble. When the same proposition was put in relation to Daniel’s interest, Barbara said she “okayed” the conveyancer to do it. Barbara accepted the percentage interests were arrived at on the basis of the lawyer’s recommendation that those should be the amounts. In response to the proposition that the lawyers’ recommendation had nothing to do with any discussions she had had with Daniel and Laura, Barbara responded that they had no discussion of percentages. Barbara accepted she did not give information to her lawyers about her discussions with Daniel and Laura and the lawyers’ recommendation to put Daniel and Laura on the title for 10 percent each was their recommendation, not Barbara’s request for advice on what percentage should be recorded. When it was put to Barbara that how the 10 percent each was recorded on the title was not determined by linking the figure back to prior discussions, Barbara responded that in the prior discussions there was no discussion about percentages and she only said their names would go on the title. Barbara then agreed that the 20 percent on the title had nothing to do with the discussions with Daniel and Laura. 175 Barbara accepted the first time she told Daniel or Laura that their ownership was recorded at 10 percent each was during an argument in Laura in July 2020. Barbara disagreed with the proposition that she was not surprised when Laura said she and Daniel were two-thirds majority owners because that was in fact the agreement they had made. 176 Barbara denied that prior to giving the information to Laura during the argument, Barbara knew Laura was unaware that the recorded interest was only 10 percent. In response to the proposition that she never told Daniel or Laura about their 10 percent ownership, Barbara said they never asked and she did not understand they had no idea. They signed the paperwork. Barbara denied that other than verification of identity, the conveyancing process was entirely between her and the conveyancers. Barbara denied concealing this from Daniel and Laura and said they had not asked the question and there was no conversation, but she accepted she had not told them. 177 Barbara agreed that before refinancing the mortgage, AFG would only accept mortgage payments from her bank account. She said that if Daniel and Laura wanted to make a mortgage contribution, they needed to provide money to her which they could have done but they did not. Barbara denied that an express basis on which Daniel and Laura asked for refinancing was to allow payment of the -- 33 of 75 -- [2025] SASC 162 Stein J 32 mortgage repayments from bank accounts other than Barbara’s. She said it was for cheaper interest rates. However, Barbara agreed that after the refinancing, Daniel and Laura could make mortgage repayments through their bank accounts and they did so. She maintained that the concept of facilitating payment from bank accounts other than hers was never raised. 178 Barbara agreed that relations with Daniel and Laura remained tense during 2021 and, in late 2021, Daniel told Barbara that Laura was pregnant as an entrée to requesting she move into the granny flat. The granny flat was tenanted at around that time. Barbara accepted that Daniel’s proposal was that the tenant complete the tenancy, she then take up residency in the granny flat and that she refused. Barbara agreed that Daniel had said he was concerned there was not enough room in the main house, but she said there was still an unused bedroom. Barbara maintained she had said that in “a few years’ time” she may relocate to the granny flat so they could have more room in the house. When it was put to Barbara by the time they reached 2021 it already had been a few years, Barbara responded by saying “would you like to lose your house completely?”. Barbara agreed it had been a few years, but certainly not as many as she would have liked. Barbara agreed that Daniel reminded her of the promise she had made but she still refused to move. Barbara denied saying to Daniel words to the effect that she did not expect his family to grow so quickly. Barbara was not sure but possibly may have said words to the effect to Daniel that Laura was asking her to move to the granny flat because she was forcing her out of her property. She said she was upset at the time. When asked whether she accepted that all Daniel was asking her to do was to honour her promise, Barbara said she was not prepared to move yet. Barbara said the way the tension was in the house, if she had moved into the granny flat, she would not have been allowed to set foot back through the doors of what was her house. When it was put to her that neither Daniel nor Laura said anything of that sort to her, Barbara said it was uncomfortable going through the front door as it was. When counsel reiterated that all Daniel was doing was asking her to make good on the offer she had made when she asked them to go on the mortgage and move into the house, Barbara agreed. She conceded she had made that suggestion when asking them to move into the house. When it was put to her again that she did not make good on the offer, Barbara reiterated that she was not prepared to move just yet. 179 Barbara was taken to an email from Laura dated 29 December 2021 in which Laura made a reference to a promise of a one-third ownership. The email referred to the “80:20 ratio” being “thrown in her face”. Barbara accepted that Laura was describing Barbara’s conduct in asserting the 80:20 ratio and describing departure from the matters they had discussed as lies. Barbara agreed the email was written before she was notified of the possibility of legal proceedings and, to her knowledge, the email was not written with the assistance of lawyers. Barbara maintained that while Laura was saying she told them she would split the Property three equal ways, that was untrue because she never said that. Barbara accepted that in the email Laura did not say that she wanted her name removed from the title -- 34 of 75 -- [2025] SASC 162 Stein J 33 and they would make a clean break without being owed anything. Barbara said Laura’s text messages referred to Laura trying to remove her name from the title. When it was put to Barbara that the text messages did not say that Laura did not expect a payment for her interest, Barbara said by trying to remove herself from the title that indicated Laura just wanted out. However, Barbara agreed Laura did not say she gave up her interest. Barbara accepted that Daniel did not write to her to ask to be removed from the title. Similarly, she agreed that Daniel had never communicated that he was prepared to come off the title nor give up any interest he had in the Property. Barbara accepted that Daniel and Laura refused to sign documents which would have removed them from the title and given them nothing in exchange for their interest. She said she was surprised they did not sign the papers because they were so adamant about having their names removed from the title and the mortgage. Barbara agreed that Daniel and Laura stayed at the Property until April 2022 because there were tenants in the Guerin Road property and Daniel and Laura moved in with their family after those tenants vacated. Barbara accepted the Guerin Road property was smaller but said it did not have less amenities and it was still a five bedroom, two bathroom house. She accepted the Property was a better property. 180 Barbara said people were living in the granny flat from time to time before April 2020, but they were not paying rent. They were friends of Daniel and Laura, lived in the granny flat and came into the main house for meals. Barbara accepted that since April 2020, the granny flat had been leased with tenants paying rent at a market rate. One tenant was paying $200 per week, the next was paying $270 per week and then $330 per week because the granny flat was by then fully furnished. Barbara said another person boards within the house paying board of $680 a month. Barbara agreed she received rental income and boarding fees for the Property and Daniel and Laura had not received any of those amounts. Barbara said she did not discover all of the records to work out the amount received from rent and boarding fees because she did not think it was necessary. Barbara disagreed that the ability to earn rental income was a direct result of the work Daniel and Laura did to fix up the granny flat. Barbara said all they contributed was $700 for the benchtop and $200 for pavers and everything else was financed by Barbara. She did accept that, of the three registered proprietors, she was the only one to have earned any income from the Property. Barbara accepted that some horses she did not own were agisted on the Property from time to time, including a horse belonging to a friend of Laura who paid $30 per week because Barbara supplied hay. Four other horses belonged to one of Barbara’s friends but there was no payment of agistment. 181 Barbara accepted she gave $20,000 to Daniel and Laura as a wedding gift and that was unrelated to payment as between owners in relation to the Property. 182 Counsel put a series of propositions to Barbara about her asserted payment of amounts not supported by discovered documents. Barbara said that the payments would be in the bank statements. Barbara accepted that documents in relation to the solar system were not discovered and she had not discovered all of -- 35 of 75 -- [2025] SASC 162 Stein J 34 the bank statements dealing with her expenses after Daniel and Laura left the Property. Barbara agreed there were amounts she could not verify by records because she paid for items in cash. She did not know whether Daniel and Laura paid any amounts in cash. Barbara accepted she had paid the expenses of the Property since Daniel and Laura moved out, but she had received the benefit. Barbara said she knew that having their names on the mortgage to the Property impacted Daniel’s and Laura’s ability to borrow funds and that was why they wanted their names off the mortgage so they could refinance. However, Barbara did not agree that while they were on the mortgage they did not have a realistic hope of refinancing. When it was put to Barbara that Daniel and Laura were carrying a significant liability for her benefit and that was harming them, Barbara responded that they could have signed the paperwork. When it was put to Barbara that she could have raised money to pay out their share, Barbara said she disagreed with paying out their share because she had paid the majority of things and it was not within her means to raise funds to pay out their 20 percent share. Barbara said she was left with a mortgage of $450,000 and she had not been able to return to work, so she had not had the capacity to borrow money to pay them out. She had not made any such attempt. Barbara agreed that her position remained that unless her hand was forced, she intended to stay in the Property for the rest of her life. Further evidence after successful application to re-open 183 After evidence was completed and the applicants had closed their case, but before Barbara completed her closing submissions, she applied to re-open. The application to re-open was in part based on Barbara deposing to having reviewed information about her matrimonial proceedings and uncovering documents she considered would assist her case. In particular, Barbara sought to rely on a bundle of emails to and from her solicitor and an invoice rendered by her solicitor in relation to the matrimonial proceedings. Having formed the view that those documents could have been deployed in cross-examination, on conditions, I allowed the application to re-open insofar as it related to the documents relevant to the matrimonial proceedings. Matrimonial proceedings documents 184 On 21 March 2018 at 11:53 am, Barbara sent to her lawyer at SE Lawyers, Ms Shevlin, an email asking her whether Ms Shevlin had seen the email Barbara had sent her. In the email Barbara said that she was going that evening to the finance organisation to get pre-approval and a letter with Dan. 185 On 9 April 2018, Sue, a legal secretary from SE Lawyers sent to Laura an email attaching a letter which stated as follows: We refer to your telephone conversation with the writer of even date. Please find attached your affidavit that you will be required to execute in the presence of a Justice of the Peace. Please sign at the bottom left hand corner of page 1 above the words “signature of respondent” and on the right side of page 2 above the word “signature of respondent”. The Justice of the Peace will need to sign their name, write the date and affix -- 36 of 75 -- [2025] SASC 162 Stein J 35 their stamp at the bottom right hand corner of page 1 and the left hand side of page 2. Please scan and email the executed document to our office as soon as possible. We confirm that your mother’s trial is listed for 2 days commencing 19 April 2018. You will be required to provide evidence on Friday 20 April 2018. The letter was signed by Ms Shevlin. 186 On 10 April 2018, Barbara sent an email to Ms Shevlin asking if Laura’s and Daniel’s affidavits were yet done. 187 On 11 April 2018, Sue sent to Laura an email asking her to please return her signed and witnessed affidavit as soon as possible for filing in court. 188 A file note from the lawyer’s file dated 11 April 2018 stated that “I rang client” to advise a signed affidavit from Laura was needed, and she would ring her. The file note also stated that the writer sent Laura an email advising the affidavit was required for filing. 189 On 11 April 2018, Ms Shevlin sent an email to Barbara saying she had emailed Laura’s affidavit to her for execution and was waiting on her to email it back. The email stated “she did not think Dan would be available to attend at court so there is no point in him swearing an affidavit but Laura’s document should be sufficient”. 190 On 12 April 2018, Ms Shevlin sent to Barbara an email saying she was still waiting on Laura’s affidavit. 191 On 12 April 2018, Barbara responded to say that Laura was getting the affidavit signed that day by the Justice of the Peace. She would send it back as soon as it was signed. The email stated that Laura had no ink and had to print it off at Daniel’s work. 192 On 13 April 2018, Laura swore the matrimonial proceedings affidavit. Further evidence on re-opening 193 After the successful application to re-open, Laura swore a further affidavit on 3 February 202511 and attended to give further evidence. 194 Laura said that nothing in the documents produced from the matrimonial proceedings file caused her to question her recollection of events or doubt the evidence she had given. Laura said she had not previously seen the documents relating to the matrimonial proceedings. She did not receive the email or letter from Barbara’s solicitors dated 9 April 2018 attaching the draft version of the affidavit and had not previously seen the email or letter. Since becoming aware of those documents, Laura had checked her email account and had been unable to locate the email in any folders including spam and junk folders. She similarly did 11 Exhibit A6. -- 37 of 75 -- [2025] SASC 162 Stein J 36 not recall receiving, and could not subsequently find, the follow up email of 11 April 2018. 195 Laura agreed that it was possible she had a brief telephone conversation with Barbara’s solicitor, but she did not recall the details and could not swear to personally giving her any instructions. However, she would expect to remember any such conversation. Her recollection remained that her mother dealt with the process of preparing the affidavit and that she only saw the document once when it was signed. Laura also pointed out that there was no file note in the documents of any conversation between her and her mother’s lawyer. She stated that the file notes accorded with her recollection of speaking with Barbara (not her lawyer) regarding providing an affidavit to assist Barbara. 196 Laura did not recall printing an affidavit either at home or at Daniel’s workplace and had no recollection of speaking to Daniel about the affidavit beyond mentioning that her mother had asked she provide one. She accepted that it was possible she had a brief discussion with her mother’s lawyer in which she said it would be pointless for Daniel to swear an affidavit, but she did not recall doing so. She could not recall having any conversation with her mother’s solicitor and she certainly did not have any substantial communication as she left the process up to her mother. Her recollection remained that the affidavit was prepared on her behalf between Barbara and Barbara’s lawyer and Laura saw it only when she signed it. 197 Laura said she only had a short period to review the affidavit before signing it. It was her first time signing an affidavit and she had never had a lawyer explain to her what an affidavit is or the consequences of it being inaccurate. Her recollection was that the Justice of the Peace did not explain this either, beyond asking her if the contents were true. She admitted that she should have taken more time to review the contents before signing the affidavit, however, she was inexperienced and just doing what her mother asked as she believed it was the right thing to do. She acknowledged that if she had reviewed the affidavit she would have noticed the errors including that the affidavit stated she and Daniel had applied to the People’s Choice Credit Union when in reality Daniel and Laura had together sought finance from their usual broker. Laura maintained the affidavit did not represent the terms of the verbal discussion or agreement that she and Daniel had reached with Barbara that they would be registered as equal owners of the property. While regretting having done so, Laura maintained she signed what was put in front of her. She also maintained that the alteration of “bottle” to “can” in the affidavit was not her handwriting and appeared to her to be her mother’s handwriting. Cross-examination 198 During further cross-examination, Laura denied being in possession of a printed copy of the affidavit when Barbara arrived to pick her up to take her to sign it. Laura maintained that she did not receive the emails, including the email dated 12 April 2018 attaching the letter and draft affidavit, but accepted that the email -- 38 of 75 -- [2025] SASC 162 Stein J 37 address on the face of the email was her correct email address. When asked if there was any reason she would not have received the email, Laura said she was not sure. Laura accepted she had a conversation with Barbara’s lawyer on 9 April 2018, but said she could not recall the purpose. 199 Laura said she would not have deleted the affidavit from her computer and she did not recall receiving emails from Sue, the lawyer’s assistant. Laura said she did not receive a phone call on 11 April 2018 from Sue regarding her affidavit and she did not receive an email on 11 April 2018 regarding her affidavit. Laura said she had checked spam, junk and her inbox and there was nothing there and nothing would have been deleted. 200 Laura said she did not recall a conversation where she told her mother she was out of ink and she would need to print the affidavit at Daniel’s work. Laura did not agree she told Barbara she had to send it to Daniel’s work to be printed because she did not have ink. Laura said she did not have a regular practice of deleting emails nor of emptying the deleted bin. Further evidence of Barbara 201 Barbara said that on about 11 April 2018, there was a conversation between herself and her lawyer in which her lawyer asked for Laura’s affidavit to be signed and returned. Barbara said she then called Laura by phone and asked Laura to print off the affidavit so it could be signed. Barbara said Laura told her she had run out of ink and sent the affidavit to Daniel’s work for him to print it off. Barbara said she therefore sent an email the following morning to the lawyer to say that Laura had run out of ink and had to print it off at Daniel’s work and they were getting the affidavit signed that day. Barbara said she went to Laura’s place, picked her and the baby up and took Laura to the Justice of the Peace because Laura did not have a driver’s licence. Barbara said she looked after the baby in the car. Barbara then drove Laura home. Barbara said she recalled looking at the affidavit which Barbara had not previously seen. Barbara said they laughed because the lawyer had said Barbara’s ex-husband drank bottles of beer but that was wrong because he drank beer from cans. Barbara said Laura crossed out “bottles” and wrote the word “cans” in pencil. Barbara said she left with the affidavit and faxed it through to her lawyer the following day. 202 During further cross-examination, Barbara denied having given instructions to the lawyer about the content of Laura’s affidavit. Barbara maintained the lawyer had no discussion with her about the content of Laura’s affidavit and she knew none of the content until she read the affidavit at Laura’s place. Barbara then said Laura discussed the affidavit with the lawyer on the telephone. When it was put to Barbara that she had no direct means of knowing that such a call ever took place, Barbara said she was charged for a conversation between Laura and the lawyer regarding her affidavit, the lawyer would not have put it in the records if she had not made that conversation and Laura knew about the affidavit for weeks before it was signed. -- 39 of 75 -- [2025] SASC 162 Stein J 38 203 Barbara accepted that she did not carbon copy Laura into the email she sent to her lawyer on 12 April 2018 at 9:16 am and that Laura was not involved in the preparation of that email. Barbara said this email followed her conversation with Laura the day before about the affidavit. Barbara denied basing her evidence on what she read in the email rather than from her own recall. Barbara denied that her evidence about the conversation with Laura concerning printing the affidavit was based on the words in the email and she lacked an independent recollection. She maintained recalling that conversation. When it was put to Barbara that no such conversation occurred, Barbara responded that she was constantly in phone contact with Laura at that time. When it was put to Barbara that she gave some evidence about Laura changing a word in the affidavit from bottles to cans, she responded that she may have written the word “cans”, but Laura went and got the pencil and they both agreed to change it. Barbara then accepted that she had said previously in Court that Barbara had wrote in the word “cans” herself. Expert evidence Valuation of the Property Report of Wayne Smith 204 The applicants tendered a valuation of the Property completed by Wayne Smith, a certified practising valuer and a valuer member of the Australian Property Institute, who is qualified in South Australia to complete valuations.12 His instructions included assessing the valuation of the property “as is” and without the works undertaken by Daniel and Laura. 205 Mr Smith’s report sets out the general nature of the Property, the title, zoning and a general description of the Property and improvements. Mr Smith noted that the main dwelling has ample living space but despite some modernisation is generally dated. He noted a negative impact on marketability by the state of the kitchen, the heating and cooling amenities, and the state of the floor coverings. He noted the spacious design as a positive impact on marketability. Mr Smith considered the positive rise in property values in the Adelaide regions and comparable recent sales in the area when assessing the valuation. 206 When considering the Property “as is”, Mr Smith referred to the size of the accommodation, provision of a granny flat, good shedding and near level paddocks as being strong marketing characteristics but noted that the Property is on a very busy thoroughfare and needs further upgrading. 207 Using a direct comparison method and referring to comparable sales, while accounting for variations in location, style, age, condition and function of improvements, among other things, Mr Smith considered the value to range between $4,550 and $4,730 per square metre of equivalent main area13 equating to 12 Exhibit A4. 13 Being the area on which the improvements sit, namely the main dwelling (247 m2) and the garage (43 m2) for a total equivalent main area of 275 m2. -- 40 of 75 -- [2025] SASC 162 Stein J 39 a total value for the Property of between $1,250,000 and $1,300,000. Using an alternative summation method by allowing $935,000 for the land value based on comparable sales, affording $100,000 for the improvements and applying a rate of $875 per square metre of equivalent main area based on similar sales, a value of $1,275,625 was determined. Using these methods, Mr Smith concluded the value of the Property was $1,275,000. 208 When considering the improvements made to the Property, Mr Smith started with the market value of the Property as determined above and allowances made for the improvements in the marketability of the Property as a whole as a result of the work performed. Using a direct comparison method and accounting for variations in location, style, age, condition and function of improvements, among other things, Mr Smith considered the value to range between $4,455 and $4,570 per square metre of equivalent main area equating to a total value of between $1,225,000 and $1,255,000. Using the summation method by allowing $935,000 for the land value, affording $80,000 for the improvements and applying a rate of $825 per square metre of equivalent main area based on similar sales, Mr Smith determined a value of $1,241,875. Using these methods, Mr Smith concluded the value of the Property without the improvements made by Daniel and Laura was $1,240,000. 209 In conclusion, Mr Smith assessed the total value of the Property as $1,275,000 comprising $935,000 in land value and $340,000 in improvements. Mr Smith considered the improvements made by Daniel and Laura added $35,000 in value to the improvements. Cross-examination 210 During cross-examination of Mr Smith, Barbara focused to some extent on who had provided the funding for materials that were used in the improvements, such as tiles and equipment to lay the flooring. Mr Smith was not aware that some materials, such as the tiles, were paid for by Barbara. Mr Smith said he disregarded the spray booth as added value because he did not consider it to be a fixture. He had no opinion about whether or not the different size and colour of the roller door added value. When asked what things Daniel and Laura did to the Property that actually added to the $35,000 value, Mr Smith said he did not break it down item per item and it was the body of work that had been done which was relevant. He observed and took that into account with the whole Property. In his view, works done in the main dwelling and to the granny flat were the most significant works which added value. Mr Smith pointed out that as cost does not equal value, it was not a major consideration for him to identify the cost of everything. 211 When asked whether he checked the shed for any structural damage, Mr Smith said that, during an inspection, he will do a thorough observation of every improvement. However, he would not check an improvement for structural damage if the damage was not clearly visible and there was no clearly observable -- 41 of 75 -- [2025] SASC 162 Stein J 40 deficiency that was pointed out to him. If he had not noted it, he would not have considered it. 212 Barbara said she disagreed with the $35,000 value added to the Property. She stated that it is usual to paint a house before selling and that is not accounted for in the assessed market value. By reference to a building report prepared by Mr Pereira,14 Barbara asked Mr Smith whether he agreed that the integrity of the shed was compromised. Mr Smith said he did not. Barbara put to Mr Smith that “if you push the front wall of the shed, it swings towards the verandah and is only attached at the top and steelwork was cut at the bottom”. When asked whether he agreed that that would cause issues for the shed, Mr Smith agreed, but said he would need to go back and physically see it again to assess that. 213 Mr Smith said he did not notice that the cabinet in the dining room had not been moved and the wall was painted around it. He recalled that Barbara pointed out to him at the inspection that some areas had not been painted and he allowed for that, but he did not look behind the cupboard. 214 During re-examination, Mr Smith was taken back to his evidence that he did not accept the value of the shed was compromised but he had acknowledged he might need to make a further physical inspection. Mr Smith said, from a valuer’s perspective, in rural residential properties there are many outbuildings created with this style of property. The importance of the integrity of every outbuilding on a broad acre rural lifestyle property diminishes in significance. If someone made it an issue, one would do further work to satisfy the line of questioning. 215 When asked what physical problems he observed with the structure of the shed when he conducted his inspection, Mr Smith said if he did not note it in the report then he did not observe anything. He did spend extra time looking at the spray booth to determine if that was an added value determinant. 216 Mr Smith said none of the matters put to him caused him to change his opinion. However, if the structural integrity of the shed was such that it compromised the whole structure and the shed needed to be knocked down that would be different, but he had not made any note about the structural integrity of the shed. Mr Smith said he would not have any means of telling when compromise of the structural integrity occurred if he assumed the structural integrity was compromised. 217 Mr Smith’s expertise was not challenged nor was his credibility. In effect the challenges were to the basis of the instructions given to him about what of the improvements were Daniel’s and Laura’s, the quality (or lack thereof) of the work performed and the potential impact on value. I accept that Mr Smith had the expertise to give the expert evidence he gave. There was no reason to doubt the opinion Mr Smith gave based on the assumptions contained in his instructions. 14 Exhibit R5, document 24. -- 42 of 75 -- [2025] SASC 162 Stein J 41 Quality of improvements Report of BJ Hay Fencing 218 Barbara referred to a fencing report of Ben Hay of BJ Hay Fencing in relation to the fencing on the Property.15 219 Mr Hay stated that the fencing work on the Property was significantly below the expected quality and specifications for any form of rural stock fence for a house yard. 220 In Mr Hay’s opinion, the fencing is very unsightly and devalues the property. He considered the fencing would need to be replaced at an approximate cost of $3,000. 221 Mr Hay was not called to give evidence. Report of Dennis Collins 222 Barbara relied on a tiling report of Dennis Collins in relation to the tiling in the granny flat of the Property.16 223 Mr Collins stated that the tiling works completed in the granny flat on the Property did not pass the relevant building code standards in any respect and in his opinion were unsightly, laid unevenly, and had irregular grout joints. He estimated that the floor would be delaminated in 12 to 18 months. Mr Collins estimated the cost to remove and replace the tiles would range between $6,800 and $7,200 not including the cost of replacement tiles. 224 Mr Collins was not called to give evidence. Report of Justin Pereira 225 Barbara relied on a building report of Justin G Pereira in relation to the shed on the Property.17 226 Mr Pereira noted the use of timber to install the roller door without any evident termite treatment and that the posts were installed in a way which comprised the integrity of the shed wall. He stated there the fixings did not comply with Australian building standards. Mr Pereira recommended the timber be removed and new galvanized steel posts be installed with appropriate fittings, flashings and necessary resealing and corrosion treatment. 227 Mr Pereira stated that the spray booth did not comply with building standards. Mr Pereira recommended the removal of the spray booth and the replacement of rear wall sheeting. 15 Exhibit R5, document 26. 16 Exhibit R5, document 25. 17 Exhibit R5, document 24. -- 43 of 75 -- [2025] SASC 162 Stein J 42 228 Mr Pereira recommended the removal of the door and the installation of a door using appropriate materials to match existing colour. Further, Mr Pereira recommended a structural engineer, or the manufacturer, be consulted to ensure the structure has not been compromised. 229 It was Mr Pereira’s opinion that the works have had a detrimental effect on the value of the building and estimated the cost of repair and rectifications would run into the tens of thousands of dollars. 230 Mr Pereira was not called to give evidence. Assessment of lay witnesses 231 During opening, counsel for the applicants informed the Court that while joint instructions were provided by Daniel and Laura about the effect of what they had been promised, since counsel was briefed, Daniel and Laura were separately interviewed, separately proofed and counselled against speaking to each other about their evidence. Consequently, he submitted that their evidence reflected their independent recollections. Daniel and Laura left the courtroom while each other gave evidence. While these entirely appropriate steps were taken to ensure independence in Daniel and Laura’s recollections after counsel was retained, they did not resist that joint instructions were provided. It would be surprising if, prior to counsel being engaged, Daniel and Laura did not discuss the relevant events which were a matter of great concern to them and considerably impacted their living arrangements and finances. 232 Daniel and Laura’s affidavits were not identical in detail but were consistent insofar as they addressed the core issues in dispute in the proceedings. Some details in the affidavits largely mirrored each other. Estimates were identical as between Daniel’s and Laura’s affidavits including in relation to payments of cash. However, I have not drawn any inferences about the similarities in the absence of cross-examination. Daniel 233 The conversations in dispute occurred close to seven years before the trial and accordingly it can be expected that recollections would have faded to some extent. Daniel’s reasonable concessions in cross-examination reflected that reality. 234 Daniel gave direct answers to questions. He was not argumentative. At times Daniel appeared frustrated, but that may have been as a result of difficulty in following some of the questions. 235 Daniel made ready concessions. In particular, Daniel conceded that Barbara did not say anything about percentages. He said she referred to “equal owners” but, later in cross-examination, Daniel said that going back that amount of time, it was hard to say if the word “equal” was actually used but he was led to believe it would be equal ownership. There was some inconsistency in his recall of the -- 44 of 75 -- [2025] SASC 162 Stein J 43 precise details of items like the gates and fencing materials in contrast with his lack of recall of the extent of interest promised by Barbara as conceded in cross- examination. 236 Daniel appeared the most measured and least emotional which is not surprising given the relationships between the parties. 237 There was nothing in Daniel’s answers to the questions or his demeanour which gave rise to any concerns about his honesty or credibility. In my view, he was honestly endeavouring to answer the questions asked of him to the best of his recollection. In making my findings, I have taken into account the effluxion of time and Daniel’s reasonable concessions about the clarity of his recollection in relation to the critical conversation. Laura 238 Laura’s affidavit contained some specific details, such as the dimensions of the gates and the fencing wire. She also referred specifically to amounts paid in cash for items such as the letter box and pavers paid for by Daniel. This was somewhat surprising given the elapse of time. 239 Laura tended to give very short answers in cross-examination. She frequently said “correct” or “disagree” with no further explanation even where such responses did not directly answer the question posed. She largely avoided looking at Barbara and the tension was palpable. There were times she asked for clarification where she did not understand a question. She agreed with some of the propositions Barbara put to her. There were at times long pauses after Barbara asked a question. It was unclear whether Laura was having difficulty because she did not understand the question or whether the lengthy pause was as a result of her endeavouring to think through the best response to the question. On critical issues such as the proposition that there was no reference to portions or reference to equal shares, Laura was very firm and responded immediately to deny the proposition and maintain her position. 240 I had no doubt about Laura’s credibility or honesty. I formed the view that Laura was accurately recounting events as she recalled them and was honestly endeavouring to answer questions to the best of her recollection. However, I had some doubts about the reliability of Laura’s recall based on the effluxion of time, including the extent to which Laura’s ability to recall the details of the conversation (in particular the reference to “equal”) was a true recall or a reinforcement of her position impacted, consciously or subconsciously, by the strong emotions generated by the irretrievable break down of her relationship with her mother. 241 I return to address this question in more detail below when I address the inconsistencies between the applicants’ primary position and Laura’s matrimonial proceedings affidavit. -- 45 of 75 -- [2025] SASC 162 Stein J 44 Barbara 242 In cross-examination, Barbara accepted many of the propositions put to her but did not do so in respect of some key issues. Barbara asked for clarification when she did not understand a question. At times, Barbara answered questions directly but at times was evasive, such as when asked a question about refusing to move to the granny flat, Barbara responded by asking “would you like to lose your house completely?” in a belligerent tone.18 At times Barbara denied a proposition or avoided giving a direct answer, but then agreed with the proposition after the question was asked again. For example, Barbara initially denied Daniel and Laura moved in with her temporarily and said they had already said they wanted to move in, but then Barbara accepted their plans changed around the discussions about coming on to the mortgage and the title. At times Barbara answered “yes” after a long pause which may have been careful consideration of the question put to her but at times was suggestive of a reluctance to make any concession. 243 During cross-examination about the instructions she gave to her lawyers in relation to the property transfer, Barbara appeared agitated or annoyed, repeatedly pushing her glasses up on to the top of her head. After Barbara was asked about honouring her promise, she appeared agitated and became increasingly terse in her responses. When asked questions contrasting the Guerin Road property with the Property, she was drawn to concessions which she appeared to give reluctantly. 244 Barbara’s denial that renting out the Guerin Road property made Daniel more attractive to a lender was surprising. 245 Barbara readily accepted that her memory in relation to certain matters, including the December 2017, conversation was vague. There was a very long pause before Barbara answered that she was not sure when she was asked whether she accepted Daniel and Laura were relying on her promises. Barbara’s confidence that she was clear she did not use the word “equal” was in contrast with her asserted vague recollection of the conversation. I return to address this further below. 246 Barbara gave evidence that she could not recall how the affidavit for the matrimonial proceedings was prepared, but she recalled clearly the circumstance in which she took Laura to the Justice of the Peace to sign the affidavit. Barbara’s suggestion that she had no involvement at all in giving instructions in relation to filing the affidavit was perplexing and I could not accept it given the inherent unlikelihood of a solicitor filing an affidavit without the client’s instructions to do so. I also return to address this issue further below. 247 Barbara displayed some signs of tension and perhaps frustration in giving her evidence but generally engaged with the questions. Some of Barbara’s concessions were contrary to her case. I formed the view she was honest in her concessions. 18 TT125.23. -- 46 of 75 -- [2025] SASC 162 Stein J 45 248 Barbara’s evidence before and after re-opening changed in relation to aspects of the preparation and swearing of the matrimonial proceedings affidavit. I formed the view that Barbara’s evidence after re-opening was based on what she had read in the documents from the matrimonial proceedings file. It was difficult to assess to what extent review of the documents had prompted real recollection and to what extent her evidence amounted to reconstruction. However, in one respect I considered it was patently clear that Barbara was giving answers in the witness box which were not based on true recollection. Barbara initially accepted that the change in “bottles” to “cans” was in her handwriting. Thereafter she asserted Laura made the change herself, but when challenged, she then accepted she made the change to the affidavit but added that she did so after she and Laura discussed it when laughing about the error. I was not satisfied that Barbara’s changes in position in the witness box on this topic were consistent with genuine recollection. Apart from this example, I formed the view that Barbara genuinely believed her account of events. 249 As was the case with Laura’s evidence, I had some doubts about the reliability of Barbara’s evidence based on the effluxion of time, including the extent to which Barbara was impacted by any conscious or subconscious reinforcement of her beliefs in light of the relationship breakdown and the palpable tension between mother and daughter. In Barbara’s case she was also clearly impacted by what she perceived to be considerable unfairness at the prospect of Daniel and Laura having an interest in the Property in light of what she considered to be their minimal contribution to expenses and work on the Property relative to her own. Barbara openly accepted that her position was that Daniel and Laura should not be entitled to any interest. I cannot discount the impact her perception of unfairness had on her evidence. 250 I return to this issue when I address my findings below. Findings 251 I make the following findings. Some follow from Barbara’s clear acceptance of propositions put to her during cross-examination. 252 At the end of 2017, Barbara was party to four mortgages with Bruce. She knew she would need to raise money to pay out Bruce in order to disentangle their financial affairs. Barbara knew there was a limit on the finance that she would be able to raise and that she was not going to be able to raise the amount of money she needed on her own. 253 In December 2017, Laura was heavily pregnant with her first child and she and Daniel were staying at the Property pending the birth of their child. Barbara had discussions with Daniel and Laura about raising money to enable Barbara to stay at the Property. Barbara was very distressed at the prospect of having to leave the Property. The extent of Barbara’s distress was so great that she told Daniel and Laura that if she had to leave the Property, she would take her own life and her ashes could be scattered on the Property so she could remain there forever. -- 47 of 75 -- [2025] SASC 162 Stein J 46 254 Daniel and Laura were concerned and distressed. At the time of these discussions, Daniel and Laura said words to the effect that they wanted to help if they could. While I cannot determine whether the suggestion of accepting mortgage liability was raised in the same conversation in which Barbara articulated that level of distress and her intention if she could not remain in the Property, I find that, in conversations in about December 2017, Barbara raised with Daniel and Laura the prospect of them becoming co-mortgagors and she suggested to Daniel and Laura that, if they did so, they would also have their names on the title of the Property. 255 I find that the effect of what Barbara conveyed to Daniel and Laura was that, in exchange for becoming co-mortgagors to enable her to continue to live at the Property, Daniel and Laura would have interests registered on the title. I return to address separately my findings in relation to the representations, if any, as to the precise interests which were to be registered on the title in Daniel’s and Laura’s names. 256 I also find that, during the conversations, Laura raised a concern that she and Daniel wanted to expand their family and Laura was concerned there might not be enough space. I find that Barbara told Daniel and Laura she would move out to the granny flat as Barbara’s answer to the concerns expressed by Laura. It is not possible for me to determine the precise words of the promise made. However, I am satisfied that Barbara promised she would move out to the granny flat in the future in answer to concerns expressed by Laura about sufficient room in the house if Laura’s and Daniel’s family expanded. The promise was thus a promise to be carried out in the future at a time when Daniel and Laura’s family grew. Barbara made that promise because she was not prepared to leave the Property and she was extremely distressed by that prospect. 257 I am not persuaded that the evidence is sufficient for me to find that Barbara deliberately threatened to take her own life to manipulate or pressure Laura to take steps to assist her. I consider that Barbara was genuinely and deeply distressed at the prospect of losing the home that she had designed and built and in which she had raised her family. However, I find that Barbara’s level of distress influenced her to make the promises to obtain assistance from Daniel and Laura to ensure she was able to retain the Property in the settlement of the matrimonial proceedings. 258 I find that Daniel and Laura changed their plans following discussions about Daniel and Laura becoming co-mortgagors and being recorded on the title. After those discussions, Daniel and Laura prepared the Guerin Road property to be rented out, rented out the Guerin Road property and then returned to live with Barbara at the Property. Laura affirmed the matrimonial proceedings affidavit which was filed in the matrimonial proceedings. Daniel and Laura applied to AFG for finance with Barbara and became co-mortgagors with Barbara as set out above. I find that Daniel and Laura took these steps in reliance on Barbara’s representations. -- 48 of 75 -- [2025] SASC 162 Stein J 47 259 While the Guerin Road property was not used as security for the loan, it is inherently plausible a potential lender assessing whether to make a loan would have taken into account the fact that Daniel held a mortgage in his name secured against the Guerin Road property. Further, there would be no obvious purpose in Daniel leaving the Guerin Road property vacant while Daniel and Laura and their baby were living at the Property. I am satisfied that the Guerin Road property was rented out and Daniel and Laura, with their newborn baby, returned to live at the Property with Barbara in reliance on Barbara’s representations made in the discussions in December 2017. 260 I find that in December 2017, the granny flat was not liveable and required work to make it so. Daniel and Laura performed some works on the granny flat to make it habitable and performed some works in and around the Property. Daniel and Laura incurred expenses associated with the works. I find that Daniel and Laura performed works and incurred expenses on the granny flat as a consequence of the promises that Barbara made to them that they would have their names registered on the title and, in the future, Barbara would move to the granny flat. 261 Some of the work performed at the Property did not arise directly as a result of the representations made by Barbara, such as the works to enable Daniel to operate a business from the shed. Those works would not have been performed if Daniel and Laura had not moved to the Property. 262 I also find that Barbara performed some works on the granny flat which contributed to making it habitable and incurred some expenses associated with the works on the Property, including paying for the flat pack kitchen, and with living in the Property. 263 It follows that I find Daniel and Laura were prepared to assist Barbara and, to provide that assistance, were prepared to change their lives, rent out the Guerin Road property, move to the Property, become co-mortgagors and perform works on the granny flat to make it liveable. I find that Daniel and Laura took those steps in reliance on Barbara’s representations that they would have interests registered on the title and that Barbara would move to the granny flat in the future. 264 I find that Daniel and Laura became co-signatories to the AFG mortgage in the circumstances I have set out above. That mortgage involved the provision of funds of $522,860 in the names of Barbara, Laura and Daniel. I find that Barbara could not have raised that money on her own without Laura’s and Daniel’s assistance. 265 It follows that Daniel and Laura suffered detriment in reliance on Barbara’s representations including moving to the Property, incurring liability as co-mortgagors, performing labour on works to improve the main house and to render the granny flat habitable and incurring expenditure associated with those works. -- 49 of 75 -- [2025] SASC 162 Stein J 48 266 As set out above, the transfer documents for the Property in April 2019 were prepared by Barbara’s lawyer. I accept Barbara’s evidence and find that the lawyers advised Barbara not to record on the title a greater than 10 percent interest for each of Daniel and Laura. I find the lawyers were not informed about the discussions between Barbara, Laura and Daniel concerning any respective ownership interests in the Property. I therefore find that the interests of 10 percent each, recorded on the title in Laura’s and Daniel’s names, did not reflect the discussions between Barbara, Laura and Daniel. 267 Both Barbara and Laura, on 14 April 2019, signed a client authorisation form authorising a lawyer from SE Lawyers to act on their behalf in relation to conveyance of the Property. The client authorisation form does not contain any details about the underlying transfer, including the percentage interest to be recorded on the title. There are no transfer documents signed by Laura and/or Daniel which disclose the respective shares of each of Laura, Daniel and Barbara which could give rise to an inference that they were aware or consented to the registration of interests of 10 percent each. I accept their evidence that they were not so aware and did not consent to their interests being recorded in that way. 268 I find the first time Barbara told Laura that Daniel’s and Laura’s ownership was recorded at 10 percent each was in July 2020 when Barbara and Laura had an argument. I accept that during that argument Laura told Barbara she was not happy with the current living arrangements and that it may be best to sell the Property. I accept that at that time Laura believed their share of the Property was greater than the total 20 percent share recorded on the title and that was the first time she became aware the interests were recorded as 10 percent each. I accept Barbara’s evidence that she had not previously spoken to Daniel and Laura about the extent of their interest as recorded on the title. 269 At the end of 2020, the mortgage was refinanced with the Commonwealth Bank at a lower interest rate. Thereafter, Daniel and Laura were able to make mortgage loan repayments through their bank accounts. I am not persuaded that another purpose for the refinance was to enable payments from bank accounts other than Barbara’s to be made. Neither Laura nor Daniel deposed to that being a purpose of re-financing. The lower interest rate on the Commonwealth Bank mortgage supports Barbara’s evidence of the purpose of re-financing. 270 I find that in late 2021, Daniel and Laura asked Barbara to move into the granny flat when the lease ran out, but Barbara refused. Barbara still refused to make the move when reminded that she had promised she would do so. Barbara accepted in evidence, and I find, that when Daniel and Laura asked Barbara to move to the granny flat, they were asking her to follow through on the offer she had made. I find that Barbara did not make good on the promise because she was not prepared to move at that time. 271 The documents created by the conveyancer at the time of the application for the AFG mortgage, the condition referred to in the mortgage documents and the -- 50 of 75 -- [2025] SASC 162 Stein J 49 transfer to Daniel and Laura supported the evidence given by Daniel and Laura concerning Barbara’s promise to them to be registered on the title. However, other than the transfer, those documents do not contain any record relating to the respective share of interests. 272 I turn now to consider the competing positions of the parties in relation to the share of the interest which Barbara promised Daniel and Laura. 273 During cross-examination, Daniel conceded that nothing was said about percentages. Daniel could not be sure if the word “equal” was actually said, but he was left under the impression that it would be equal ownership. In cross-examination, Laura accepted there was no discussion over percentages but said she recalled discussion of “equal” shares. Barbara said her recollection of the conversation in December 2017 was vague but maintained her position there was no discussion of percentages and that she did not refer to equal shares. 274 There are only two documents, other than the transfer, which record any reference to the respective interests of Barbara, Laura and Daniel. The first is the matrimonial proceedings affidavit sworn 13 April 2018 in which Laura stated that it had been agreed between Barbara, Laura and Daniel that Daniel and Laura would be registered as tenants in common on the title to be apportioned in accordance with their respective financial contributions. 275 The only other document recording any asserted interest is the email dated 29 December 2021 from Laura to Barbara. That email referred to the 80:20 ratio and to Daniel and Laura being told the Property would be split three equal ways. While that email was sent before proceedings were instituted, it was sent after Daniel and Laura sought legal advice about their interests in the Property and after Laura and Barbara’s relationship had fundamentally broken down. 276 As I have referenced above, there was palpable tension between Laura and Barbara. Emails and text messages between them demonstrated significant antagonism and a complete breakdown of their relationship. While I accept Barbara and Laura each believed the evidence they gave, I am left in considerable doubt as to the extent to which each of their recollections have been impacted by their beliefs, and then consciously or subconsciously reinforced over time, particularly in light of the anger and distress experienced by them, the hostility between them and the irretrievable breakdown in their relationship. I consider that these matters impacted upon the reliability of their evidence. In reaching my findings of fact on the critical question of whether a particular share of ownership interest was promised by Barbara, I have paid close attention to other facts which are not in dispute and those facts from which inferences can be drawn. 277 I turn now to address my findings about the matrimonial proceedings affidavit and the circumstances in which it was prepared. -- 51 of 75 -- [2025] SASC 162 Stein J 50 278 Both Laura and Barbara gave similar accounts of the circumstances in which Laura swore the affidavit. Based on those accounts, I find that Barbara picked up Laura, took her to Murray Bridge and looked after Laura’s baby daughter in the car whilst Laura went to a meeting with, and swore the matrimonial proceedings affidavit before, the Justice of the Peace. Barbara then drove Laura and the baby home and thereafter returned the affidavit to Barbara’s lawyer. 279 However, there is a fundamental difference between Laura’s and Barbara’s positions in terms of who gave instructions for the preparation of the affidavit and when Laura first saw the affidavit. Both Laura and Barbara maintained they did not give instructions in relation to the description of the respective interests to be accorded to each of Barbara, Laura and Daniel. I do not accept Barbara’s suggestion that she did not give any instructions to her solicitors to file the affidavit. The affidavit was filed in the matrimonial proceedings. I do not accept that Barbara’s solicitors would have prepared the affidavit, engaged with Laura and then filed the affidavit in Barbara’s matrimonial proceedings without Barbara’s instructions to do so. That, of itself, does not, however, resolve the dilemma as to what, if any, involvement Barbara and/or Laura had in the specific instructions concerning the details contained in the affidavit. 280 Daniel and Laura did not contest the factual accuracy of the solicitor’s records on their face. 281 The emails from the solicitor’s file are consistent with the matrimonial proceedings affidavit having been drafted by Barbara’s solicitor and I find accordingly. 282 The tendered documents are consistent with the solicitor having spoken to Laura because an email from the solicitor refers to Laura thinking that Daniel would not be available to attend at court. In light of the records from the solicitor’s file, I find that Barbara’s solicitor spoke to Laura by telephone. However, I am unable to make any findings about the content of that discussion and whether it related to the substantive content of the affidavit or simply the logistics to facilitate the affidavit being sworn and filed. There was no file note recording the details of the instructions for the affidavit. 283 Counsel for Daniel and Laura submitted that it is plausible that, in the absence of any correction, the solicitor concluded what was the arrangement between Barbara, Laura and Daniel. However, there is little to support that proposition. It appears inherently unlikely a solicitor would refer to the basis for an agreement about sharing proprietary interests in a property without instructions about the actual agreement or understanding concerning that topic. 284 This was not a transaction in which Barbara, Laura and Daniel were purchasing a property from a third party in an arm’s length transaction funded largely by borrowed funds via a mortgage rendering each jointly and severally liable. The AFG mortgage only funded the amount required to discharge -- 52 of 75 -- [2025] SASC 162 Stein J 51 pre-existing mortgages which did not reflect the value of the Property nor the contribution Barbara had already made to the original purchase of the Property. At the time the affidavit was prepared and affirmed, Barbara was able to independently raise finance of $300,000 when she knew she required in excess of $500,000. Daniel gave evidence that Barbara could raise $300,000 out of the required $500,000. The matrimonial proceedings affidavit was consistent with that evidence in that it referred to Daniel and Laura borrowing $200,000 to assist Barbara to retain the Property. The matrimonial proceedings affidavit was sworn in excess of six months before Barbara, Laura and Daniel made the joint application to AFG. This is consistent with Daniel and Laura taking steps to seek to borrow about 40 percent of the total amount required to discharge the existing mortgages to enable the proposed orders to be made. The affidavit thus reflected the objective position in relation to the respective financial contributions which Barbara, Laura and Daniel were contemplating making at about the time the affidavit was drafted and affirmed. 285 While I cannot determine whether the instructions about the nature of the arrangement were given to the solicitor by Barbara or Laura, I consider it inherently unlikely that Barbara was not involved in any way in its preparation or giving instructions about it. The reference to People’s Choice Credit Union in the affidavit combined with Daniel’s evidence he thought Barbara was initially seeking finance from that credit union tended to support the proposition put to Barbara in cross-examination that she gave instructions for the affidavit. 286 While maintaining she was not involved in its preparation, Barbara strongly refuted the suggestion she gave false instructions to the solicitor. Barbara gave evidence that she read the affidavit after Laura affirmed it before returning it to the solicitor. Barbara did not raise with her solicitor any issues with its accuracy, other than in respect of the change from “bottle” to “can”. This renders it more likely that the affidavit reflected Barbara’s instructions at the time. 287 I am satisfied on the evidence that Barbara was involved in the preparation of the affidavit and the position it expressed accorded with her position at the time. The objective circumstances at the time, in particular that Laura and Daniel were seeking to borrow 40 percent of the amount required, supports my conclusion that Barbara did not give false instructions to the solicitor. Further, if there were any errors in the accuracy of the affidavit, it is reasonable to infer Barbara would have raised them with her solicitor at the time she returned the affidavit to the solicitor. However, such a conclusion does not assist in determining the extent to which Laura was involved in the preparation of the affidavit or her understanding and familiarity with its content. 288 The documents from the matrimonial proceedings file show that an email was sent by the lawyers to Laura attaching her draft affidavit four days before she affirmed it. Laura maintains she never received the email. However, Laura accepts that the email address to which the correspondence was sent was the correct address. The emails to Laura on the solicitor’s file do not carbon copy -- 53 of 75 -- [2025] SASC 162 Stein J 52 Barbara. I accept Laura’s evidence that there are no emails from Laura on the solicitor’s file addressed to the solicitor. The solicitor’s file in its entirety was not tendered, however, both Laura and Barbara gave evidence to the effect that there were no other relevant records. I therefore infer there were no records on the file consistent with the solicitor having received a failed delivery notification or with Laura’s affidavit having been sent directly to Barbara. 289 The email on 12 April 2018 from Barbara to her lawyer saying that Laura was getting the affidavit signed, she had no ink and had to print it off at Daniel’s work is inexplicable if Barbara had not had a conversation with Laura in those terms. There is no obvious reason why Barbara would have sent an email to the solicitor making those statements if Barbara had not received that information from Laura. However, that does not establish that, as a matter of fact, the affidavit was printed at Daniel’s work. Based on the solicitor’s documents, I consider it more likely than not that the draft affidavit, letter and emails were both sent to, and received by, Laura’s email address. However, I cannot make any findings about whether Laura (or Daniel for Laura) printed off the affidavit or whether Barbara brought a copy of the affidavit with her to the meeting. Irrespective, I cannot make any findings about whether Laura read the affidavit in advance of the appointment with the Justice of the Peace. I cannot make any findings as to why Laura’s searches now did not reveal any such documents. In reaching these conclusions, I make clear that I consider Laura was recounting events to the best of her recollection. 290 At the time, Laura was 21 years of age, had a three month old baby, was doing her best to help her mother and was not legally trained. I would not have expected Laura to understand what was meant by a reference to “tenants in common”. The fact that Laura signed the affidavit when it incorrectly referred to an application to People’s Choice Credit Union and to her father drinking from bottles tends to confirm Laura’s evidence that she did not closely read the affidavit. However, I remain perplexed by the reference to “respective financial contributions”. Even a cursory reading of the affidavit should have been enough for Laura to recognise that the affidavit did not say that the shares were to be “equal” or “one-third” shares (consistent with her current recollection) so as to cause Laura to ask questions if the affidavit did not represent her understanding. Further, as set out above, the affidavit was affirmed before the AFG application was made in which Barbara, Laura and Daniel sought joint finance and, thereafter, became equal co-mortgagors. Neither Laura nor Daniel deposed to further discussions with, or representations by, Barbara after the affidavit was affirmed and before the AFG application. Their evidence was that the relevant representations including about their shares in the Property were made in December 2017. 291 There is no suggestion that Daniel was involved in any way in the preparation of the affidavit or that he had read it. Accordingly, there remains a possibility that it did not reflect his understanding at the time. -- 54 of 75 -- [2025] SASC 162 Stein J 53 292 Initially Barbara paid the mortgage and Daniel and Laura together paid various expenses associated with the Property. After the mortgage was refinanced with the Commonwealth Bank, Daniel and Laura were responsible for one-half of the mortgage repayments, not two-thirds. While the arrangements in relation to the payment of the Commonwealth Bank mortgage post-dated the relevant discussions and therefore cannot assist in determining the parties’ common intention at the time of the conversations, the arrangements cast a further doubt about the reliability of Laura’s recollection. However, I do not draw any adverse inferences or make any findings based on this in the absence of cross-examination on this topic. 293 Given Daniel’s and Laura’s concessions during cross-examination, I am not persuaded that Barbara expressly referred to one-third shares each. I am thus not satisfied on the balance of probabilities that Barbara specifically promised Daniel and Laura an interest of one-third each on the title. 294 While Barbara referred to it being “our dream” that the Property would go to Daniel and Laura, it followed a reference to their ownership following her passing, and I do not consider it amounted to a concession that she promised equal shares in the Property to Daniel and Laura. 295 In assessing the evidence of each in relation to whether the word “equal” was used, I prefer Daniel’s evidence over Laura’s. He was the least emotionally involved and willing to make the concession that he could not recall the word “equal” being used in light of the time that had elapsed. When taken together with potential issues concerning the reliability of Laura’s recollections, the objective circumstances in existence at the time and the content of the matrimonial proceedings affidavit, I am not satisfied that Daniel and Laura have established on the balance of probabilities that Barbara specifically used the word “equal” in the conversations. 296 Daniel, however, was left with the impression that the shares were to be equal. It gives rise to the potential that while all three were proceeding on the basis they would have proprietary interests in the Property, at least Daniel was proceeding on an understanding or assumption about his share which was different from Barbara’s. It also leaves open the potential that any understanding arose from matters unrelated to representations Barbara made, or assumptions made at a later time, including that all three later became signatories on the AFG joint mortgage. However, there was no cross-examination on that basis and the evidence does not enable me to make any findings on the topic. 297 Counsel for Daniel and Laura submitted that Barbara did not challenge Daniel in cross-examination to the effect that Daniel agreed to take a proportional share based on his level of investment. However, Barbara did challenge Daniel both on the suggestion that she referred to “equal” or to “one third” interests during the conversations in December 2017. Daniel maintained he understood the shares would be equal. That position is inconsistent with acceptance that their interests -- 55 of 75 -- [2025] SASC 162 Stein J 54 would be recorded based on their financial contributions. The cross-examination occurred in a context in which Barbara’s position was that Daniel and Laura had no entitlement, Laura’s matrimonial proceedings affidavit referred to respective financial contributions and Daniel and Laura’s alternative case was based on a presumption of proprietary interests based on their respective financial contributions. Accordingly, if there was a failure to strictly comply with the rule in Browne v Dunn,19 I consider the parties’ respective positions at trial were clear and no prejudice flowed to Daniel and Laura. In any event, as will become evident, no consequence flows from any failure to put the proposition given the conclusions I have reached below. 298 I address my conclusions concerning the share of each parties’ respective interests separately in my consideration below. 299 In reaching my conclusions I have not overlooked Barbara’s acceptance that her recollection of the discussions is vague. I have also not overlooked potential inconsistency in Barbara’s concessions about certain aspects of the conversations against her evidence of a vague recollection of other aspects. I have also not overlooked the fact that, having registered Daniel and Laura on the title, Barbara adopted the position that her action in doing so was simply a gift. This was a clear change of position by Barbara, likely in part a consequence of the breakdown in the relationship and her view that it would be unfair for Daniel and Laura to receive interests in the Property given, in her view, their minimal contributions. I have taken these matters into account in reaching my conclusions. 300 I address separately below my conclusions on the inferences to be drawn from the facts I have found proved and the remedies that should follow. 301 Each of Barbara, Laura and Daniel gave evidence about paying expenses in cash. Where payments could not be verified by invoices or entries in bank statements, the expenses were estimates made years after the expenses were incurred. 302 Barbara made the point that some of the references to amounts spent in the evidence did not accord with the appendix attached to Mr Smith’s report which listed the description of “clients’ improvements”. That appendix records information supplied by the client. There are some discrepancies, such as recording purchase of the letter/parcel box at $250 on the basis they “went halves with Barbara”. This was not reflected in Laura’s affidavit in which she referred to paying $420 for the box. It is not possible to make findings about precisely what was expended by way of purchase of materials or payment of expenses referable to the Property by either Daniel and Laura on the one hand or Barbara on the other. 303 The discovered records of the parties undoubtedly do not fully represent their outlays and receipts, for reasons including dealings in cash. On the state of the 19 (1893) 6 R 67. -- 56 of 75 -- [2025] SASC 162 Stein J 55 evidence, it is not possible to perform a reconciliation which would accurately reflect the parties’ respective positions in relation to any income derived or expenditure incurred by each of the parties. 304 Barbara has had the sole benefit of the occupation of the Property since Daniel and Laura moved out in 2022, which cannot be quantified. Barbara has exclusively paid the mortgage on the Property and all other expenses since Daniel and Laura moved out. Barbara also performed labour on the Property and asserted she incurred other expenditure, such as for installation of a solar system, although that was not substantiated. Barbara pointed to the fact that Daniel and Laura did not refer to any business income derived from use of the shed and the same observation could be made about the benefit of rent received while the Guerin Road property was leased out from some time in 2020 to 2022. I cannot make any specific findings about these matters. 305 Barbara accepted that the tiling in the granny flat was performed by Daniel and Laura. Barbara did not dispute that Laura painted the interior of the house and arranged installation of downlights. I find that Daniel and Laura tiled the kitchen and bathroom area in the granny flat and Daniel paved the patio area. I find that Laura painted the interior of the house and arranged the installation of the downlights. 306 Barbara was not shaken during cross-examination concerning the extent of her contribution to the granny flat and the minimal contribution by Daniel. Daniel’s disagreement in cross-examination with the proposition that Barbara did 100 percent of the work on the kitchen left open the possibility she performed some of it. Laura accepted that Barbara performed some works on the granny flat. Based on Laura’s and Daniel’s concessions in cross-examination, I find that some of the works on the granny flat were performed by Barbara. I thus cannot make specific findings on what were the respective contributions by each of Barbara, Laura and Daniel to the work performed on the granny flat to render it habitable. 307 In forming his view on value, Mr Smith considered the state of the Adelaide property market and five year median house price analysis for Meadows. Mr Smith’s primary valuation opinion was based on direct comparison taking into account other sales of properties in the Adelaide Hills. He also cross-checked that value using the summation method in which the underlying land value was determined through sales evidence together with the estimated added value of improvements to derive a rate per square metre per equivalent main area which is applied to the subject property and used to derive the market rate. The summation method supported Mr Smith’s use of the midpoint range based on market value. 308 Mr Smith considered the strong marketing characteristics of the Property were the size of accommodation and the granny flat, good shedding, near level paddocks, the position on a busy throughfare and the need for further upgrade. -- 57 of 75 -- [2025] SASC 162 Stein J 56 309 In determining the market value without the works undertaken by Daniel and Laura he used the market value “as is” and made allowance for improvements in the marketability of the property as a whole resulting from the works undertaken. 310 Mr Smith took into account the variations in location, style, age condition and function of improvements, among other things, in determining the value of the Property without the works undertaken by Daniel and Laura. 311 The nature of the improvements made by Daniel and Laura were provided by way of instruction to Mr Smith. Laura’s version was that Daniel and Laura funded completion of the half-completed granny flat. Mr Smith referred to “works to complete the half-finished” granny flat performed by Daniel and Laura including a new kitchen bench, new flooring throughout and laying paving for the small patio, repainting the interior of the main house, installation of down lighting, installation of gates, replacing fencing, a roller door and lighting for the shed, epoxy coating the shed floor, installing a spray booth and panel beating equipment in the shed. 312 I accept that in forming his opinion in relation to the valuation of the improvements, Mr Smith took into account the condition and function of the improvements. I am unable to make any specific findings about the issues raised by Barbara concerning the structural integrity of the shed and the quality of works such as the tiling. Mr Smith inspected the Property. I accept that during his inspection Mr Smith did not observe any issues. I also accept his opinion that the importance of the integrity of sheds on a property of this nature diminishes in significance relative to the overall value of the property. I also accept that Mr Smith took into account deficiencies pointed out by Barbara during the inspection concerning the painting in the main house other than in relation to the fact the wall behind the cabinet was not painted. It is reasonable to infer that such a deficiency would have little impact on the overall value of a property of the nature of the Property. The evidence indicates that works on the shed were performed to enable Daniel to run a business from the Property. However, Mr Smith’s evidence was that he did not regard the spray booth as a fixture. In light of these matters, and taking into account my conclusions in relation to Daniel’s and Laura’s claim concerning their improvements to the Property, it is not necessary for me to address any further the issues raised by Barbara concerning the alleged failings in the work performed by Daniel and Laura. 313 Mr Smith’s assessment of the value of the improvements was based predominantly on the works to the granny flat and the house based on his instructions in relation to the works performed by Daniel and Laura. There was a lack of clarity whether his assessment was based on Daniel and Laura performing all the work and incurring all the expenditure to complete the granny flat. The evidence, particularly in relation to the works to complete the granny flat, demonstrated that some works were performed by Barbara and some payments, such as for the flat pack kitchen, were made by her. -- 58 of 75 -- [2025] SASC 162 Stein J 57 314 Mr Smith did not break down the valuation as between different components of all of the works performed by Daniel and Laura, and the evidence is not sufficient to enable me to make specific findings about those matters. While I can find that Daniel’s and Laura’s efforts contributed towards the improvements and thus contributed to an increase in value, I am unable to determine what portion of Mr Smith’s assessment of the value of the improvements is fairly attributable to Daniel’s and Laura’s efforts. Legal principles Constructive trust 315 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.20 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.21 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.22 316 Where a constructive trust is based on the parties’ common intention regarding the ownership of property on which the applicant has acted to his or her detriment, the inquiry is about the actual intention of the parties.23 It is not necessary to establish that the intention was for the parties to have a specific share of the property. It is enough that the parties intended the applicant would have some form of proprietary interest.24 The intention may be established through express statements about intention or inferred from the conduct of the parties.25 The evidence from which inferences may be drawn includes statements at or before the transaction.26 317 The applicant must demonstrate that he or she acted to her or his detriment associated with the intention to obtain an interest in the property.27 If it can be 20 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. 21 King v Fister [2022] QCA 47 at [25] (Davis J, Sofronoff P agreeing at [1], Mazza AJA agreeing at [2]). 22 King v Fister [2022] QCA 47 at [26] (Davis J, Sofronoff P agreeing at [1], Mazza AJA agreeing at [2]) quoting from Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413 at [402] (McMillan J). 23 Galati v Deans [2023] NSWCA 13 at [54] (White JA quoting Shepherd v Doolan [2005] NSWSC 42 at [34]). 24 Galati v Deans [2023] NSWCA 13 at [54] (White JA) quoting Shepherd v Doolan [2005] NSWSC 42 at [36]. 25 Galati v Deans [2023] NSWCA 13 at [54] (White JA) quoting Shepherd v Doolan [2005] NSWSC 42 at [37]. 26 Galati v Deans [2023] NSWCA 13 at [54] (White JA) quoting Shepherd v Doolan [2005] NSWSC 42 at [39]. 27 Galati v Deans [2023] NSWCA 13 at [54] (White JA) quoting Shepherd v Doolan [2005] NSWSC 42 at [40]. -- 59 of 75 -- [2025] SASC 162 Stein J 58 ascertained, the beneficial interest will be that which was intended or agreed. If the parties did not consider the form of title they intended then a conclusion which best gives effect to the parties’ intentions will be favoured.28 If the evidence is not sufficient to enable a finding about the extent and nature of the beneficial interest intended, one starts with the maxim that equality is equity, but that should be departed from if the parties made disproportionate contributions to the acquisition of the property.29 318 The question whether a common intention constructive trust has been subsumed within the principles of proprietary estoppel or remains in Australian law as an institution separate from proprietary estoppel has been raised by some jurists.30 319 A constructive trust may also arise upon a successful action for proprietary estoppel.31 A constructive trust which is proprietary in nature may remedy an equity arising in circumstances in which the respondent has induced an assumption in the applicant about the future acquisition of ownership of property by representations upon which the applicant has relied to her or his detriment.32 The foundation for the imposition of a constructive trust in such cases is that a refusal to recognise the equitable interest amounts to unconscionable conduct and the remedy of a constructive trust is imposed to circumvent that unconscionable conduct.33 The conduct of the promisee as induced by the promisor is the foundation for equitable intervention. The promisor’s responsibility for the detrimental reliance by the promisee makes it unconscionable for the promisor to resile from the promise and serves to vindicate the expectations of the promisee against the promisor who seeks unconscionably to resile from an expectation she or he has created.34 The recipient of the promise bears the onus of establishing she or he has been induced to rely upon the promises.35 320 It is sufficient to establish that the representation was a significant factor which was taken into account when deciding to act.36 The detriment or harm 28 Galati v Deans [2023] NSWCA 13 at [54] (White JA) quoting Shepherd v Doolan [2005] NSWSC 42 at [41]. 29 Galati v Deans [2023] NSWCA 13 at [54] (White JA) quoting Shepherd v Doolan [2005] NSWSC 42 at [42]. 30 Galati v Deans [2023] NSWCA 13 at [57]-[60] (White JA), [149] (Basten JA agreeing) referring to Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 at [113]-[119] (Leeming JA); Koprivnjak v Koprivnjak [2023] NSWSC 2 at [23]-[24] (Griffiths AJA, Leeming JA and Mitchelmore JA agreeing). 31 Giumelli v Giumelli (1999) 196 CLR 101 at [6] (Gleeson CJ, McHugh, Gummow and Callinan JJ). 32 Giumelli v Giumelli (1999) 196 CLR 101 at [6] (Gleeson CJ, McHugh, Gummow and Callinan JJ). 33 Baumgartner v Baumgartner (1987) 164 CLR 137 at 147 (Mason CJ, Wilson and Deane JJ). 34 Sidhu v Van Dyke (2014) 251 CLR 505 at [58], [77] (French CJ, Kiefel, Bell and Keane JJ, Gageler J agreeing at [89]). 35 Sidhu v Van Dyke (2014) 251 CLR 505 at [61] (French CJ, Kiefel, Bell and Keane JJ); [89]-[92] (Gageler J agreeing). 36 Sidhu v Van Dyke (2014) 251 CLR 505 at [73] (French CJ, Kiefel, Bell and Keane JJ, Gageler J agreeing at [89]) quoting Steria Ltd v Hutchison [2006] EWCA Civ 1551; [2007] ICR 445 at [117] (Neuberger LJ) and citing Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 at 735 (Rich, Dixon and Evatt JJ); Gould v Vaggelas (1984) 157 CLR 215, 236 (Wilson J), 250-251 (Brennan J). -- 60 of 75 -- [2025] SASC 162 Stein J 59 against which equity seeks to protect is that which flows from the change of position if the assumption that led to it was abandoned.37 321 The relief may require positive steps to be taken by the respondent including performing the promise and to make good the expectation which the promise generated.38 However, there may be cases in which the just measure of relief may not represent the value of the promise, such as where the respondent is induced to make a relatively small and readily quantifiable outlay in reliance on the promises.39 322 The constructive trust is imposed as a remedy of last resort. The Court must determine whether another equitable remedy which falls short of the imposition of a trust may adequately satisfy equity without the need for a trust to be imposed.40 323 As an equitable remedy, the constructive trust is available only when warranted by established equitable principles, it does not represent a medium for indulgence of idiosyncratic notions of justice and fairness.41 Resulting trust 324 Where two or more people advance the purchase price of property in different shares it is presumed the person to whom the legal title is transferred holds the property upon resulting trust in favour of those who provided the purchase price in the shares which were provided.42 Thus, where those contributing the purchase price hold the property as co-owners in proportions which do not accurately represent the contributions made to the purchase price, equity will presume the co-owned property is held in shares proportionate to the contribution of each co-owner. The presumption serves the same function as the civil onus of proof in that it operates to resolve a contest of facts where the evidence is equivocal or uninformative.43 The presumption can be rebutted by evidence demonstrating the purchaser’s actual intention at the time of the purchase.44 Once the facts giving 37 Sidhu v Van Dyke (2014) 251 CLR 505 at [80] (French CJ, Kiefel, Bell and Keane JJ, Gageler J agreeing at [89]) quoting from Grundt v Great Boulder Pty Gold Mintes Ltd (1937) 59 CLR 641 at 674-675 (Dixon J, McTiernan J agreeing at 682). 38 Giumelli v Giumelli (1999) 196 CLR 101 at [6] and [40]-[48] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Sidhu v Van Dyke (2014) 251 CLR 505 at [82] (French CJ, Kiefel, Bell and Keane JJ). 39 Sidhu v Van Dyke (2014) 251 CLR 505 at [83]-[85] (French CJ, Kiefel, Bell and Keane JJ, Gageler J agreeing at [89]). 40 Giumelli v Giumelli (1999) 196 CLR 101 at [10] (Gleeson CJ, McHugh, Gummow and Callinan JJ) citing Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at [42]; Napier v Hunter [1993] AC 713, 738 (Lord Templeman), 744-745 (Lord Goff of Chieveley agreeing), 752 (Lord Browne-Wilkinson agreeing). See also Plimmer v Corporation of the City of Wellington (1884) 9 App Cas 699. 41 Muschinski v Dodds (1985) 160 CLR 583 at 615 (Deane J, Mason J agreeing at 598). 42 Calverley v Green (1984) 155 CLR 242 at 246-247 (Gibbs CJ); 258 (Mason and Brennan JJ); 266-267 (Deane J). 43 Calverley v Green (1984) 155 CLR 242 at 266 (Deane J); Muschinski v Dodds (1985) 160 CLR 583 at 612 (Deane J); Bosanac v Commissioner of Taxation (2022) 275 CLR 37at [102] (Gordon and Edelman JJ). 44 Calverley v Green (1984) 155 CLR 242 at 251-252 (Gibbs CJ), 261 (Mason and Brennan JJ), 269-270 (Deane J). -- 61 of 75 -- [2025] SASC 162 Stein J 60 rise to the presumption are proved, the burden falls on the party disputing the resulting trust to rebut the presumption. 325 The presumption will give way to actual intention to the contrary found on the balance of probabilities by way of inference drawn from the totality of the evidence.45 The intention is an objective intention which is inferred from what the parties do or say, rather than a subjective, uncommunicated intention.46 It concerns the intention manifested by the persons contributing funds to the purchase which can be made out by the circumstances and inferred from the proved facts.47 The intention is determined at the time of the purchase of the property.48 326 The purchase price constitutes what is paid in order to acquire the property.49 Incurring liability by way of mortgage constitutes contribution to the purchase price of the property.50 Payment of mortgage instalments are not part of the purchase price but rather a payment towards securing the release of the charge over the property which was purchased.51 327 The presumption of a resulting trust can be excluded by the presumption of advancement.52 The presumption of advancement on one view is merely an absence of any reason for presuming that a resulting trust arose.53 At an evidentiary level, the presumption of advancement is a circumstance which may rebut or prevent the presumption of a resulting trust arising.54 If a person who provides the purchase price stands in a relationship of dependency with the person to whom the property is transferred, or to a co-owner who takes a greater share in the property than represented by their contribution to the purchase price, equity will presume the transfer was intended for the benefit of the recipient so no resulting trust will arise.55 A relationship of dependency such as that between parent to child can 45 Calverley v Green (1984) 155 CLR 242 at 251-252 (Gibbs CJ), 261 (Mason and Brennan JJ), 269-270 (Deane J); Bosanac v Commissioner of Taxation (2022) 275 CLR 37 at [13]-[16] (Kiefel CJ, Gleeson J), [44], [64] (Gageler J), [105] (Gordon and Edelman JJ). 46 Calverley v Green at 261 (Mason and Brennan JJ), 270 (Deane J); Bosanac v Commissioner of Taxation (2022) 275 CLR 37 at [13]-[16] (Kiefel CJ, Gleeson J), [44], [64] (Gageler J), [105] (Gordon and Edelman JJ). 47 Bosanac v Commissioner of Taxation (2022) 275 CLR 37 at [32] (Kiefel CJ and Gleeson J), [111] (Gordon and Edelman JJ). 48 Calverley v Green (1984) 155 CLR 242 at 252 (Gibbs CJ), 262 (Mason and Brennan JJ), and 269 (Deane J). 49 Calverley v Green (1984) 155 CLR 242 at 257 (Mason and Brennan JJ). 50 Calverley v Green (1984) 155 CLR 242 at 251 (Gibbs CJ), 257-258 (Mason and Brennan JJ), 267-268 (Deane J). 51 Calverley v Green (1984) 155 CLR 242 at 257-258 (Mason and Brennan JJ citing the English Court of Appeal in Crisp v Mullings [1976] 2 EGLR 103), 267-268 (Deane J). 52 Calverley v Green (1984) 155 CLR 242 at 247 (Gibbs CJ), 258 (Mason and Brennan JJ), 269 (Deane J). 53 Calverley v Green (1984) 155 CLR 242 at 247 (Gibbs CJ), 256 (Mason and Brennan JJ) and 267 (Deane J) citing Martin v Martin (1959) 110 CLR 297 at 303. 54 Bosanac v Commissioner of Taxation [2022] HCA 34; (2022) 275 CLR 37 at [15] (Kiefel CJ and Gleeson J) citing Pettitt v Pettitt [1970] AC 777 at 814 (Lord Upjohn); Wirth v Wirth (1956) 98 CLR 228 at 237 (Dixon CJ). 55 Calverley v Green (1984) 155 CLR 242. -- 62 of 75 -- [2025] SASC 162 Stein J 61 preclude the presumption of a resulting trust.56 The presumption of advancement can be rebutted by evidence of the actual intention of the purchaser at the time the property was purchased.57 Equity of contributions 328 A co-owner expending money in making capital improvements cannot force the other co-owner to contribute in the absence of agreement while the co-ownership subsists. However, on partition or sale, the co-owner who made the improvement is entitled to an adjustment if the other co-owner would otherwise benefit unfairly from the improvements. In Brickwood v Young,58 Griffith CJ referred to the doctrine that there is no remedy for money spent in repairs by one tenant in common against another as long as the property is enjoyed in common, but, in a suit for partition, it is usual to have an enquiry as to expenditure in improvements or repairs which have increased the value of the property, in which case one party cannot take the increase in value of the property without making an allowance for what has been expended in order to obtain that increase in value.59 329 In Squire v Rogers,60 an appellant expended moneys in improvements to land which was leased to the appellant and respondent in perpetuity. The appellant had incurred expenditure in excess of $100,000, but the valuation indicated the increment in value of the land resulting from the improvements did not exceed $15,000. Justice Deane stated that, as a general rule, capital expenditure on improvements to land by one joint co-owner without the authority of the other creates a passive equity which attaches to the land. The co-owner cannot bring proceedings for contribution against the co-owner. However, if the co-owner would otherwise unfairly benefit under an order in equity, including for partition or sale, the person incurring the expenditure is entitled to an allowance for the expenditure on the improvements to the extent they result in enhancement of the value of the land or price on sale.61 The co-owner cannot obtain more than his outlay, but, on the other hand, the increase in the price is the limit of what can be received even if the outlay is larger.62 330 Daniel and Laura contended, by reference to Giumelli v Giumelli,63 that when considered in conjunction with a claim of beneficial interest in land under a constructive or resulting trust, the basis of the calculation of the adjustment is 56 Wirth v Wirth (1956) 98 CLR 228 at 237-238 (Dixon CJ); Nelson v Nelson (1995) 184 CLR 538 at 548-549 (Deane and Gummow JJ), 574-576 (Dawson J), 584-586 (Toohey J), 600-601 (McHugh J). 57 Calverley v Green (1984) 155 CLR 242 at 251 (Gibbs CJ citing Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 364-365). 58 (1905) 2 CLR 387. 59 (1905) 2 CLR 387 at 394-395 (Griffith CJ, Barton J and O’Connor JJ agreeing at 399) citing Leigh v Dickeson (1884) 15 QBD 60 at 67 (Cotton LJ). 60 (1979) 27 ALR 330. 61 Squire v Rogers (1979) 27 ALR 330 at 346-347 (Deane J, Forster and Brennan JJ agreeing at 333). 62 Squire v Rogers (1979) 27 ALR 330 at 346-347 (Deane J, Forster and Brennan JJ agreeing at 333) quoting from Boulter v Boulter (1898) 19 LR (NSW) Eq 135 at 137. 63 (1999) 196 CLR 101. -- 63 of 75 -- [2025] SASC 162 Stein J 62 either the amount spent or the present value of the improvements, whichever is greater. 331 In Giumelli, the High Court considered a claim by a man named Robert arising from three alleged promises made to him by his parents concerning the ownership of part of a property. A general promise was made to give Robert part of the property for working without wages and for working to develop and improve the property. The second promise was that Robert should build a house on the property and the house and the land on which it stood would be his. The third promise was that the property would be subdivided to create a lot including the house if Robert agreed to stay on the property and not accept another offer of work. Robert claimed that in reliance on the promises, he constructed a house on the property, rejected the job offer and returned to the property and performed work on it. The trial judge accepted that Robert had established detriment in relation to the second promise, but not the third promise. In relation to the second promise, the trial judge concluded that it was not appropriate to make an order that title on the land on which the house was situated be vested in Robert and rather that Robert’s expectation be met with a monetary payment representing either the amount expended by Robert or the present value of the house and land on which it was situated, whichever was the greater.64 332 On appeal, the Full Court of the Supreme Court of Western Australia considered Robert had suffered detriment as a result of reliance on the third promise. The Full Court granted specific relief including an order for the creation and conveyance of a lot promised to Robert. 333 The majority of the High Court considered that when all of the circumstances were taken into account, including improvements made by family members other than Robert and the continued residence of another brother on the property, it was necessary to qualify Robert’s prima facie entitlement to avoid injustice to others.65 This pointed to relief by way of a monetary sum, not acquisition of title to land. That sum was to be fixed to represent the value of the equitable claim.66 334 It is evident from this analysis that the relief by way of monetary sum was in lieu of title to the property and the remedy was fashioned to avoid injustice. 335 In Soulos v Pagones,67 the New South Wales Court of Appeal considered, among other issues, an appeal from the trial judge’s finding that a property was held on trust for a man named Dennis based on a successful proprietary estoppel claim. The claim was based on an alleged promise by a deceased to Dennis that Dennis would own the property and Dennis expended significant time and money 64 Giumelli v Giumelli (1999) 196 CLR 101 at [28] (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby J agreeing at [65]). 65 Giumelli v Giumelli (1999) 196 CLR 101 at [50] (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby J agreeing at [64]-[65]). 66 Giumelli v Giumelli (1999) 196 CLR 101 at [50]-[51] (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby J agreeing at [64]-[65]). 67 (2023) 416 ALR 181. -- 64 of 75 -- [2025] SASC 162 Stein J 63 renovating the property which was then gifted by the deceased’s will to other family members. The trial judge upheld the claim and declared the property was held on trust for Dennis. 336 On appeal, there was a challenge to the trial judge’s finding there was sufficient detriment to give rise to a proprietary estoppel and the conferral of a proprietary interest in the property was said to be disproportionate to the detriment which was suffered. Alleged detriment included renovation work to the property and payment of repairs and expenses in the nature of electricity, water and council rates. Dennis’ evidence concerning the representations made and the expectation encouraged in him was not challenged. Dennis contended that there was no disproportionality between his detriment and relief based on the value of his labour and expenditure.68 337 President Ward was not persuaded that the trial judge erred in concluding that Dennis had established sufficient detriment to give rise to a prima facie entitlement to equitable relief, on the basis of proprietary estoppel, in light of the substantial capital and work Dennis had undertaken in renovating the property.69 That was not displaced by the fact that Dennis had enjoyed countervailing benefits.70 The matter was not disposed of by reference to a common intention constructive trust.71 338 President Ward stated that, generally speaking, where there is a comparison between detriment suffered and benefit, the relevant benefit must have been received in consequence of the change of position based on the representations.72 President Ward was not persuaded that making good the encouraged expectation was out of all proportion to the equity that arose in his favour.73 339 Daniel and Laura relied on Soulos for the proposition that one’s own efforts and labour can be quantified with a monetary value up to the limit of one’s capital outlay. It is clear that the Court of Appeal included Dennis’ own labour as well as his payment of contractor’s expenses in considering Dennis’ potential detriment by renovating the property in reliance on the representations.74 However, it does not appear that Dennis received a remedy both in the form of a declaration as to title and a monetary payment on account of his labour and expenses. The labour 68 Soulos v Pagones (2023) 416 ALR 181 at [354] (Ward P, Meagher and Mitchelmore JJA agreeing at [688]). 69 Soulos v Pagones (2023) 416 ALR 181 at [381] (Ward P, Meagher and Mitchelmore JJA agreeing at [688], [693]). 70 Soulos v Pagones (2023) 416 ALR 181 at [384]-[386] (Ward P, Meagher and Mitchelmore JJA agreeing at [688], [693]). 71 Soulos v Pagones (2023) 416 ALR 181 at [381] (Ward P, Meagher and Mitchelmore JJA agreeing at [688],). 72 Soulos v Pagones (2023) 416 ALR 181 at [394] (Ward P, Meagher and Mitchelmore JJA agreeing at [688]). 73 Soulos v Pagones (2023) 416 ALR 181 at [404] (Ward P, Meagher and Mitchelmore JJA agreeing at [688]). 74 Soulos v Pagones (2023) 416 ALR 181 at [383] (Ward P, Meagher and Mitchelmore JJA agreeing at [688]). -- 65 of 75 -- [2025] SASC 162 Stein J 64 and expenses represented the detriment which gave rise to the equitable remedy in the form of a declaration of his proprietary interest in the property. Accordingly, Soulos assists Daniel and Laura in supporting the position their labour and expenditure on the Property in reliance on Barbara’s representations constitutes detriment. It does not, however, necessarily justify a conclusion that Daniel and Laura should receive a remedy in the form of a constructive trust, or resulting trust, and an increase in their ownership interest in the Property based on the value of their contributions and improvements. 340 In Baumgartner, the parties had been in a de facto relationship in which they pooled their incomes. A house was acquired in the name of the man. The house purchase was funded in part by a mortgage in the man’s name and in part by the net proceeds of the sale of a property owned by the man. After the parties separated, the man asserted sole ownership of the property. The High Court concluded that the arrangement for pooling of earnings was designed to ensure the earnings would be spent for the joint benefit of the relationship.75 The man’s assertion that the property, funded in part through pooled funds, was solely his, constituted unconscionable conduct attracting the imposition of a constructive trust.76 In circumstances in which the parties had lived together for years and pooled their resources and efforts to create a home for them both, the starting point was equality of beneficial ownership. However, that was subject to adjustment to avoid injustice if no account were taken of the differences between the individual contributions made by them.77 The majority referred to giving effect to practical equality, rather than pursuing complex factual inquiries which will result in relatively insignificant differences in contributions.78 The majority considered that the appellant should receive from the proceeds of sale repayment of mortgage payments made by him after the relationship ended subject to any offset to account for the benefit enjoyed by him of the property. The appellant was also entitled to recovery of the net proceeds of the property which was used to fund part of the purchase price less payments of mortgage instalments made from the pooled earnings. The value of furniture taken by the woman on the cessation of the relationship was also to be paid from the proceeds. The adjustments were made to ensure the equity of the remedy. 341 Baumgartner is a demonstration of a case in which adjustments based on contributions were taken into account by the Court in determining the appropriate remedy. It underscores the importance of ensuring the remedy granted by the Court avoids injustice. 75 Baumgartner v Baumgartner (1987) 164 CLR 137 at 149 (Mason CJ, Wilson and Deane JJ, Toohey J agreeing at 152, Gaudron J agreeing at 155). 76 Baumgartner v Baumgartner (1987) 164 CLR 137 at 149 (Mason CJ, Wilson and Deane JJ, Toohey J agreeing at 152, Gaudron J agreeing at 156). 77 Baumgartner v Baumgartner (1987) 164 CLR 137 at 149-150 (Mason CJ, Wilson and Deane JJ, Gaudron J agreeing at 157). 78 Baumgartner v Baumgartner (1987) 164 CLR 137 at 150 (Mason CJ, Wilson and Deane JJ). -- 66 of 75 -- [2025] SASC 162 Stein J 65 Partition or sale 342 Section 69 of the LP Act provides that, on any application for partition, if it appears to the Court that by reason of the nature of the property, the number of interested parties, or any other circumstance, a sale of the property and distribution of proceeds would be more beneficial for the interested parties than a division of the property between them, the Court may, if it thinks fit, and notwithstanding dissent, direct a sale of the property and give any consequential directions. 343 Section 70 of the LP Act provides that on any application for partition, if the parties interested to the extent of one moiety (that is, 50 percent) or more in a property request the Court to direct a sale of the property and distribution of the proceeds instead of division of the property, the Court shall, unless it sees good reason to the contrary, direct a sale of the property.79 344 The power under s 69 is discretionary.80 The onus lies on the party requesting the sale.81 It is not simply the applicant who must be considered; all those interested in the property must be considered.82 What is “beneficial” primarily focusses on economic benefit, but emotional and other considerations might be relevant to the exercise of the discretion.83 In Francis v Francis,84 in forming a view about partition or sale, Bleby J took into account evidence that there would be a significant increase in value to the parties if the land could be partitioned and subdivided rather than sold as a whole.85 He also considered the fact that sale would mean ejecting the defendants from their home of 20 years, concluding that if possible they ought to be allowed to remain in their home and the property they had developed until ready to leave.86 The fact that the plaintiff had a house and that a sale would leave the defendant without a home was a relevant consideration both in Francis v Francis and in BM v AM.87 79 Section 71, which provides for any party interested in the property to request the court to direct a sale instead of division of the property unless the other parties undertake to purchase the share of the party requesting the sale and gives the court power to direct a sale and make consequential directions, has been held to be a separate provision that does not restrict s 69 or s 70 and does not allow another party interested in the property, by undertaking to buy the plaintiff’s share, to defeat what may otherwise be the right to a sale: Perman v Maloney [1939] VLR 376; Mitchell v Cullington [1997] ANZ ConvR 342. 80 BM v AM [2003] IEHC 170. 81 Nevin v Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300 at [97] citing Mitchell v Cullington [1997] ANZ ConvR 342, 343; Perman v Maloney [1939] VLR 376 at 380-381. 82 BM v AM [2003] IEHC 170. 83 Justice Roberts-Smith concluded that a court’s need to consider non-economic benefits will turn on the construction of the relevant statute: Nevin v Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300 at [98]-[104] citing Pannizutti v Trask (1987) 10 NSWLR 531 at 540 (Kirby P, McHugh JA agreeing at 541, Needham AJA dissenting on this point at 541); Pemberton v Barnes (1871) LR 6 Ch App 685, 693. 84 [2009] SASC 363. 85 [2009] SASC 363 at [73]. 86 [2009] SASC 363 at [75]. 87 [2003] IEHC 170. While the decision was made pursuant to the equivalent of s 70, Peart J concluded that even if the appropriate section were the equivalent of s 69(2), the Court ought not to order a sale. -- 67 of 75 -- [2025] SASC 162 Stein J 66 Consideration Constructive trust 345 In Laura’s and Daniel’s written opening, they expressed their asserted constructive trust as founded on Barbara, Laura and Daniel having formed a common intention they would share ownership of the Property equally based on Barbara’s representation. It was submitted that Daniel and Laura acted to their detriment in reliance on the common intention and it would be a fraud for Barbara now to claim they do not have a beneficial interest in the Property. 346 In light of Galati v Deans88 and the authorities referred to in it, I proceed on the basis that a constructive trust founded on common intention remains a distinct species of constructive trust. In any event, if there were any doubt, I conclude further below that the evidence establishes the basis for a constructive trust based on proprietary estoppel. 347 I accept that the common intention of Barbara, Laura and Daniel was that Daniel and Laura would be registered on the title with Barbara. However, in light of the findings I have made, I cannot find on the balance of probabilities that there was a common intention between all three of them to register Daniel and Laura as to one-third interest each. I also cannot find on the balance of probabilities that the common intention of all three was that Daniel and Laura would be registered as “equal” owners on the title to Barbara. 348 The authorities to which I have referred do not treat the absence of a common intention about the specific share of property as precluding a common intention constructive trust from arising. It follows that the intention that Daniel and Laura were to have a share of the Property in excess of their registered legal interest is sufficient. 349 Where the parties have a common intention to create proprietary interests in property, without specifying the precise share, the conclusion which best gives effect to the parties’ intentions will be favoured.89 That intention can be inferred from the parties’ conduct at the time. On the basis of the facts I have found and the inferences which arise from them, including the common ground between the parties, I consider the conclusion which best gives effect to the parties’ intention at the time of the promises, and the reliance upon them, was that Daniel and Laura were to be registered on the title in shares representing their financial contribution to the scheme that enabled Barbara’s retention of the Property. 350 The question of what represented Daniel’s and Laura’s financial contribution is not as straightforward as it would be if Barbara, Laura and Daniel had purchased 88 [2023] NSWCA 13. 89 Galati v Deans [2023] NSWCA 13 at [54] (White JA) quoting from Shepherd v Doolan [2005] NSWSC 42 at [41] (White J). -- 68 of 75 -- [2025] SASC 162 Stein J 67 a property in an arm’s length transaction on the open market from an independent vendor. 351 The consideration stated on the transfer document was $168,000. There was no evidence adduced regarding that figure. It appears by inference to have merely represented a calculation of 20 percent of the value of the Property derived from the valuation obtained for the purposes of the AFG mortgage, which valued the Property at $840,000, given the transfer resulted in Daniel and Laura being recorded on the title as each having a 10 percent interest. 352 Barbara’s affidavit evidence stated that Barbara had paid mortgage repayments on the Property while still married to Bruce. There was no evidence about the extent of any redemptive equity in the Property at the time the orders in the matrimonial proceedings were made. There was no evidence about the nature of Bruce’s interest in the Property nor was there evidence about all of the transfers which took place to give effect to the orders made in the matrimonial proceedings. 353 The moneys loaned by AFG via mortgage totalled $522,860 and were used by Barbara, Laura and Daniel to fund the discharge of pre-existing Adelaide Bank mortgages and their related loans and therefore did not reflect a true arm’s length purchase price of the Property. This was implicitly acknowledged by Daniel and Laura insofar as their calculations of the extent of their contributions to the purchase price of the Property (on their alternative case of resulting trust) were based on the proportion of their joint and several liability under the AFG mortgage, being two-thirds of $522,860 (equal to $348,573.30) as a proportion of the value of the Property, assessed at the time of the AFG mortgage application, being $840,000. Daniel’s and Laura’s submissions thus implicitly proceeded on the basis that the mortgage liability constituted part of the “purchase price” for the Property, with that price best represented as a proportion of the value of the Property at the time. 354 The position was further complicated by the effect of all of the orders made in the matrimonial proceedings. Bruce had to transfer all of his right, title and interest in the Property to Barbara on the basis, among other things, that Barbara at her sole cost had to discharge the joint Adelaide Bank home loan secured against the Property. The orders also required Barbara to transfer her interest in another property in Meadows to Bruce and Bruce was required to discharge at his sole cost the joint home loan secured against that property in Meadows. Barbara retained a 50 percent interest in a property at Currency Creek as tenants in common with Bruce and Barbara was required to discharge, at her sole cost, two joint Adelaide Bank mortgages. The orders do not record whether the latter two loans were secured against the Currency Creek property or any other property. There was no evidence about the outstanding liabilities on each of the separate mortgages and home loans which Barbara was required to discharge and no evidence about which were secured over the Property. -- 69 of 75 -- [2025] SASC 162 Stein J 68 355 The memorandum from Ms Burke to AFG dated 9 November 2018 referred to the court order requiring Barbara to refinance a loan secured by mortgage against an investment property as a condition to keep her home.90 The memorandum stated that the debt was to be “transferred/secured” against Barbara’s owner occupied home and the existing mortgage secured against her existing home was to be extinguished, with the debt being swapped from one security to another. The loan application form, under a section called “assets and liabilities statement” included the property at Currency Creek to be “consolidated/refinanced”. 356 The authority to discharge addressed to the Adelaide Bank contained in the bundle of documents attached to the AFG loan approval91 referred to three separate Adelaide Bank account numbers and a mortgage number. The special conditions of settlement were recorded as including a transfer of the Property from Barbara to Barbara, Laura and Daniel and that three Adelaide Bank home loans were to be prepaid in full and discharged at settlement. 357 In her evidence, Barbara said that she had to discharge the Property mortgage and the Currency Creek mortgage in relation to the land on which her son was conducting his business. She said she had to pay out her son’s business loan. Barbara said the Currency Creek property was sold and she described how she used her share of 50 percent of the proceeds, which included paying lawyer’s fees, a deposit for her son’s house, Daniel’s and Laura’s wedding gift and repaying money she had borrowed from her mother. 358 The inference which arises from the documents and Barbara’s evidence is that the loan amount of $522,860 contributed to the discharge of the Currency Creek property mortgage(s). The loans may not have been secured by the Property. If so, it would follow that the amount of $522,860 did not represent the balance owing on the loan secured over the Property, nor give rise to any inference about the value of any redemptive equity in the Property at the time. 359 In my view, despite the uncertainties to which I have referred above, the most reliable and fairest representation of Daniel’s and Laura’s financial contribution remains their liability as co-mortgagors relative to the value of the Property at the time of entry into the AFG mortgage. The time-of-entry value is most accurately reflected by the value accepted by AFG at the time of application, being $840,000.92 Barbara made representations to Daniel and Laura which were aimed at obtaining assistance for her to retain the Property and those representations resulted in Daniel and Laura becoming co-mortgagors, initially on the AFG mortgage. Thus, the remedy should best reflect Daniel’s and Laura’s liability as co-mortgagors as a share of the value of the Property at the time of entry into the AFG mortgage. Two-thirds of $522,860 constitutes close to 41.5 percent of the 90 Exhibit A1 tab 15. 91 Exhibit A1; tab 3. 92 Such a value is further supported by the $168,000 consideration recorded on the title, at the time of settlement, as being provided for Daniel’s and Laura’s two-tenths share of the property. -- 70 of 75 -- [2025] SASC 162 Stein J 69 Property value of $840,000. That equates to an interest of 20.75 percent to each of Daniel and Laura. Currently each of Daniel and Laura are recorded as having a 10 percent interest in the Property. It follows that Barbara holds part of her 80 percent registered interest in the Property on constructive trust for each of Daniel and Laura to recognise their entitlement to a 20.75 percent interest each. 360 Barbara complained that Daniel’s and Laura’s actual out of pocket expenditure did not match hers, both in relation to mortgage repayments and other expenses. While it is understandable that Barbara would consider it unfair for Daniel and Laura to receive a share of the Property based on their liability under the mortgage in circumstances in which their out of pocket expenditure was significantly less than hers, the authorities to which I have referred are clear that financial contribution is reflected by liability under the mortgage and that repayments of a mortgage loan merely constitute repayment of debt as opposed to the purchase of a proprietary interest by instalments. 361 If it is necessary for Daniel and Laura to establish equitable fraud as an element of a common intention constructive trust, it is made out in the circumstances I have found. This includes Barbara’s representations causing Laura to assist in the form of the matrimonial proceedings affidavit which was filed in the matrimonial proceedings and Daniel and Laura becoming jointly and severally liable as co-mortgagors on the Property. The fact the matrimonial proceedings affidavit was filed in support of Barbara’s position in the matrimonial proceedings renders resiling from it unconscionable. 362 If I am wrong in my conclusion above that it is sufficient there was a common intention that Daniel and Laura would receive a proprietary interest in the Property absent a common intention about the respective shares, I consider the evidence establishes the basis for a constructive trust based on proprietary estoppel in accordance with the principles set out in Giumelli v Giumelli.93 Barbara made representations which Daniel and Laura relied on to their detriment. Having obtained their assistance in the ways described above, in reliance on her representations, to ensure she could retain the Property in the settlement of the matrimonial proceedings, it would be unconscionable for Barbara now to resile from those representations.94 363 It follows that Daniel and Laura have established the basis for a declaration that Barbara holds 58.5 percent of her registered interest in the Property on her own account and the balance, being 21.5 percent of her registered 80 percent interest in the Property, as constructive trustee for Daniel and Laura. 93 (1999) 196 CLR 101. 94 The statement of claim seeks a remedy in the form of a constructive trust without specifying the source of that constructive trust. As drafted, it encompasses constructive trust based on proprietary estoppel. -- 71 of 75 -- [2025] SASC 162 Stein J 70 Resulting trust 364 On their alternative case, based on a presumption of a resulting trust, Daniel and Laura contended they provided equally as joint mortgagors with Barbara in the sum of $522,860 by their joint mortgage but title was transferred in unequal proportions, being only 10 percent to each of Daniel and Laura and 80 percent to Barbara. Daniel and Laura pleaded the presumption of advancement did not apply in this case. 365 Evidence of actual intention to grant a proprietary interest proportionate to the relative financial contribution renders resort to the presumptions of advancement, and of resulting trust, otiose as those presumptions will give way to intention based on inference drawn from all of the evidence.95 The findings I have made that Daniel and Laura intended to assist Barbara to enable her to retain the Property by becoming co-mortgagors on the basis they would receive registered interests in the Property as promised by Barbara and subsequently that such interest would be proportionate to their liability under the mortgage is sufficient to exclude any presumptions of resulting trust and advancement, if such presumptions could have applied. Despite this, the outcome remains the same as that sought by Daniel and Laura on their alternative case. Equity of contributions 366 Daniel and Laura sought a determination that they are entitled to an increase in their ownership interest to the extent of the improvements they made, valued at $35,000 in accordance with Mr Smith’s report, and a portion corresponding to their ownership interest of the value of the rental income received by Barbara. 367 Recognising the information is incomplete, Daniel and Laura estimated that as against Laura’s and Daniel’s expenditure of $35,008, Barbara expended $101,091. However, Barbara received $25,441 in rent, which Daniel and Laura extrapolated out to $80,251 against Daniel and Laura’s receipt of no income from the rental relating to the Property. Daniel and Laura thus contended that they made a greater contribution once one allows for the fact they did not receive any income from the Property and accordingly Barbara would not have a substantive equity of contribution claim as against them. They submitted that the evidence was insufficient to allow a safe conclusion on the balance of probabilities as to the relative financial contribution of each of the parties. On that basis, Daniel and Laura contended that the valuation of Mr Smith represented their entitlement as to the degree to which they facilitated improvements to the Property. They therefore sought an increase in their share of ownership interests representing the increase in value of the improvements as valued at $35,000 by Mr Smith. 95 Calverley v Green (1984) 155 CLR 242 at 251 (Gibbs CJ), 270 (Deane J) citing Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365; Bosanac v Commissioner of Taxation (2022) 275 CLR 37 at [13], [15] (Kiefel CJ and Gleeson J) citing Muschinski v Dodds (1985) 160 CLR 583 at 612, [64] (Gageler J), [111] (Gordon and Edelman JJ). -- 72 of 75 -- [2025] SASC 162 Stein J 71 368 Even if the valuation of Mr Smith represented the extent to which Daniel and Laura contributed to improvements, it would not necessarily follow that the appropriate remedy would be an increase in their ownership interests. The equity of contribution authorities to which I have referred above support the position that if a co-owner would otherwise unfairly benefit, the person incurring the expenditure is entitled to an allowance for the expenditure to the extent it results in enhancement of the value of the land or price on sale. 369 There have been significant increases in the overall value of the Property by reason of market forces since 2019, as demonstrated by the valuations obtained over time. In 2019, the Property was valued at $840,000. In April 2024, the Property was valued by Mr Smith at $1,275,000 including all of the improvements. This represents an increase in value in just over four years of approximately $435,000. 370 Mr Smith’s $35,000 figure was a global assessment of the increase in value of the Property generally as attributable to the improvements made by Daniel and Laura during the period of joint occupation. Based on Mr Smith’s opinion, it would appear that the increase in value would mostly derive from painting the main residence and the habitability of the granny flat. However, as set out above, Barbara also contributed to the improvements to the granny flat, both in terms of expenditure and unquantified labour but the evidence does not allow me to conclude with certainty the exact contributions to the improvements both in terms of percentages of labour and monetary expenditure. 371 Taking into account: • the absence of any certainty as to the relative contributions to the improvement of the Property which resulted in the estimate of $35,000 increase in value; • the increase in value estimated by Mr Smith would only ever be realised upon sale; • in the event of sale, each of the registered proprietors would benefit proportionally from the increase in value; • the fact the $35,000 increase in value, as quantified by Mr Smith, constitutes a relatively small proportion of the increase in value of the Property attributable to market forces since 2019; • the remedy should avoid injustice, represent a just measure of relief and give effect to practical equality;96 96 Giumelli v Giumelli (1999) 196 CLR 101 at [50] (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby J agreeing at [64]-[65]); Baumgartner v Baumgartner (1987) 164 CLR at 149-150 (Mason CJ, Wilson and Deane JJ, Gaudron J agreeing at 157). -- 73 of 75 -- [2025] SASC 162 Stein J 72 the parties should benefit from any such increase as tenants in common in proportion to their ownership interests at law and in equity. Put differently, in light of the matters to which I have referred, awarding Daniel and Laura an additional allowance would not represent a just measure of relief in the circumstances. 372 While such a conclusion does not address the rent Barbara received for leasing the granny flat, which flowed in part as a benefit from the detriment suffered by Daniel and Laura in the form of their labour and monetary expenditure, Barbara also incurred expense and contributed labour to the improvements which made the granny flat tenantable. 373 Similarly, the rent received by Barbara and her personal benefit from sole use of the Property after Daniel and Laura left is offset, to a degree I cannot quantify, by expenses incurred by her that were not proportionally borne by Daniel and Laura, such as loan repayments under the AFG mortgage agreement, and all expenses following the breakdown of the relationship between the parties in 2022. 374 Taking all these matters into account, I consider the maxim equality is equity97 would not be reflected in a further allowance to Daniel and Laura on account of the works to which they contributed, but for which they were not solely responsible. As the evidence cannot firmly establish, firstly, that Barbara is unjustly benefitting, and secondly, that the $35,000 increase in value attributable to the improvements is the result of disproportionate expenditure and labour of Daniel and Laura, it satisfies equity to treat as equal the contributions of all parties to the Property’s improvements, which, in the circumstances, justifies no additional allowance to Daniel and Laura. 375 I therefore do not award to Daniel and Laura any increase in their ownership interest or any monetary allowance on account of the extent of any improvement made to the Property during their co-occupation of the Property, or otherwise. Partition or sale 376 Given my findings, Daniel’s and Laura’s interest in the Property did not equal or exceed one moiety and accordingly s 70 does not apply. 377 Daniel and Laura contended that Barbara did not put forward evidence in support of partition, neither party sought partition and the contest was only between the status quo and whether the Property is to be sold. However, Barbara was not represented and conducted her case on the basis that Daniel and Laura should be awarded no share of the Property at all. Further, Daniel and Laura bore the onus of proof and I must be satisfied that sale of the Property and division of the proceeds would be “more beneficial than partition” for any one or more of the factors referred to in s 69. 97 Originally ‘aequitas est quasi aequalitas’: Co Litt 24b. -- 74 of 75 -- [2025] SASC 162 Stein J 73 378 In this case, the report of Mr Smith describes the Property as a triangular shaped allotment with a south easterly aspect to Brookman Road, comprising about 9.67 ha, with a frontage of 505.3 m and depth of 637/385 m. An aerial image shows the buildings located on the eastern side of the Property close to the north- eastern border with a long driveway joining Brookman Road close to the border of the Property to the north-east. No evidence was called about whether there were any factors which may impact on the possibility of dividing the Property into lots, the likely costs of doing so, or the likely relative economic benefits including whether the sale of the Property as a whole would result in a price greater than the combination of sales of separate lots. In all the circumstances in which Daniel and Laura seek to disentangle their financial arrangements with Barbara, having since separated, it may be that either or both portions of the Property which would be vested in them upon an order for partition and subdivision would have to be sold regardless. If so, the costs associated with partition and subsequent sale of individual lots may favour sale of the Property as a whole. 379 While the primary focus remains upon economic issues, other issues are relevant. Other secondary considerations include the animosity between Laura and Barbara, the fact that sale would result in Barbara losing her family home, Barbara’s considerable attachment to the Property, her length of residence in the Property and her considerable personal and financial contributions to the Property during the time she has lived at the Property. 380 Given the relevant factors, I must take into account under s 69 of the LP Act, my inability to form a view on the economic consequences of a partition relative to sale, the state of the relationships between the parties and Barbara’s considerable attachment to the Property as her family home, I have concluded that before making any orders to give effect to my reasons, I should hear further from the parties. I have determined that any orders I may make should allow Barbara time to make enquiries to determine whether she is in a position to raise funds to purchase Daniel and Laura’s share of the Property. I will hear from the parties before making any further order regarding disposition of the Property. Conclusion and orders 381 Daniel and Laura are entitled to a declaration in their favour that Barbara holds 10.75 percent of her 80 percent registered interest in the Property on constructive trust for each of them. They are not entitled to any further increase to their interest. Accordingly, I declare that the respondent holds on constructive trust 10.75 percent for each of the applicants, totalling 21.5 percent of her 80 percent registered interest in the Property. 382 I will hear the parties in relation to further orders to give effect to my reasons. -- 75 of 75 --