Cook v Alderson [2025] QSC 26

SUPREME COURT OF QUEENSLAND CITATION: Cook v Alderson [2025] QSC 26 PARTIES: BONNIE JUNE COOK (plaintiff) v SHANNON LEIGH ALDERSON (first defendant) and BRETT DARREN ALDERSON (second defendant) FILE NO/S: BS 4494 of 2024 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 20 February 2025 DELIVERED AT: Brisbane HEARING DATE: 3 February 2025 JUDGE: Treston J ORDER: 1. The plaintiff is entitled to be repaid by the defendants the amounts of $110,116.41 and $160,804.42 plus pre-judgment interest as set out at [90] of these reasons, a sum of $29,710, all secured by an equitable charge over the property located at 18 Doherty Court, Ormeau. 2. Further the plaintiff is entitled to equitable compensation in the sum of $120,000 also secured by an equitable charge over the property located at 18 Doherty Court, Ormeau. 3. There will be judgment for the plaintiff therefore in the sum of $420,630.83. 4. I will hear the parties as to costs. CATCHWORDS: EQUITY – EQUITABLE REMEDIES – EQUITABLE COMPENSATION – EQUITABLE CHARGES AND LIENS – contribution to the acquisition or improvement of -- 1 of 19 -- 2 another’s property – entitlement to an equitable charge over property to secure payment of a contribution. EQUITY – where the plaintiff and her daughter and son-in- law (the first and second defendants respectively) had an oral agreement that all parties would contribute to the purchase of a property in which the parties were to live – where the plaintiff would live with the defendants for the remainder of her life with the defendants paying the mortgage and other outgoings on the property – where the terms of the oral agreement were undisputed between the parties – where the plaintiff had no interest in the capital growth of the property purchased through the agreement – where there was a breakdown in the personal relationships between the parties and the plaintiff ceased to live at the property with the defendants – where the plaintiff made a claim for equitable compensation effectively to be put back in the position that she was in before the agreement – where the defendants sought only to repay the amounts of the plaintiff’s contribution – whether a joint endeavour constructive trust arises – whether the plaintiff was entitled to equitable compensation in excess of the sum of her contributions to the property Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 Baumgartner v Baumgartner (1987) 164 CLR 137 Bennett v Horgan (NSWSC, 3 June 1994, unreported) Davis v Davis [2024] NSWCA 222 Giumelli v Giumelli (1999) 196 CLR 101 Hill v Hill [2005] NSWSC 863 JAB v The executors of the estate of the late MST [2022] QSC 226 King v Fister [2022] QCA 047 Kriezis v Kriezis [2004] NSWSC 167 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mbuzi v Hall & Anor [2010] QSC 359 McKay & anor v McKay [2008] NSWSC Muschinski v Dodds (1985) 160 CLR 583 Spink v Flourentzou [2019] NSWSC 256 Talga Ltd v MBC International Ltd (1976) 133 CLR 622 The Commonwealth v Verwayen (1990) 170 CLR 394 COUNSEL: Plaintiff self-represented M E A Maynard for the first and second defendants SOLICITORS: Cronin Miller Litigation for the first and second defendants -- 2 of 19 -- 3 Introduction [1] On 29 June 2015 the plaintiff, Bonnie Cook, and her daughter, Shannon Alderson, the first defendant, entered into what seemed like a harmless family arrangement for both of their future residential circumstances. [2] The first defendant, and her husband Brett, the second defendant, wished to purchase a property for their young family in the Gold Coast hinterland. At that stage, the plaintiff was aged 67 years, and was living and working in New South Wales, in the Gosford area, where she owned a home. [3] The first defendant approached her mother and suggested that the plaintiff might come to live with the first and second defendants and their family. The broad proposal was that they would find an acreage property which provided for a house on the property for the first and second defendants and their family, and a separate place on the land that could be made into a granny flat for independent living for the plaintiff. The plaintiff was to contribute, first, a sum to the purchase price and, second, a sum for the renovation of a part of the property to create a granny flat for the plaintiff. The plaintiff was broadly in agreement with this proposal. Her own requirements were that she ought to have, for life, a house space of her own (with no ongoing financial contribution), a garden that she could attend to, and a swimming pool. [4] A property was located at 18 Doherty Court, Ormeau that appeared to meet all the parties’ requirements. The house was purchased in the defendants’ names, as was the agreement. [5] By 2023 the family was in dispute, and the plaintiff had left the home. [6] This proceeding is to determine the value of the plaintiff’s interest in the property, or perhaps more correctly, the equitable compensation which ought to be paid to the plaintiff by the defendants. [7] Although the matter was commenced by the plaintiff as an originating application, the plaintiff later filed a statement of claim. Complaints were made by the defendants about the way in which the cause of action was pleaded. Ultimately, the defendants filed a counter-claim seeking, effectively, a declaration that the only amounts the defendants were to repay were the amounts of the plaintiff’s contribution to the purchase price ($110,116.41) and the renovation of a part of it to create a granny flat for the plaintiff ($160,804.42). [8] The matter proceeded with evidence-in-chief by affidavits and a small amount of cross-examination. Substantially however, the critical matters were the subject of an agreed list of matters not in dispute, which list of matters broadly reflected the state of pleadings and the affidavit evidence. The property agreement [9] Although the arrangement was oral, the terms were not substantially in dispute. [10] The parties agree that by 29 June 2015, the plaintiff and the defendants had agreed to what they described as a property arrangement. That arrangement consisted of the fact that the property at 18 Doherty Court, Ormeau would be purchased in the names -- 3 of 19 -- 4 of the first and second defendants. The plaintiff agreed to make a contribution to the purchase price of the Ormeau property in two amounts. The first, a sum of $110,116.41 used as a contribution to the purchase price of $825,000. Second, the plaintiff would make a further contribution to the purchase of the property by funding the cost of the design, alteration and rebuild of a separate garage on the property which could be converted into a small home (also described in the evidence as a granny flat) on the property. Ultimately, the plaintiff spent an amount of $160,804.42 on the re-build and fit out of the granny flat. [11] In addition to the financial contributions the following facts are agreed1 to constitute the property arrangements entered into between the plaintiff and the defendants: (a) the plaintiff could live with the defendants for the remainder of her life, with the defendants paying the mortgage and other bills on the property; (b) the plaintiff would not have an interest in the property which would be capable of passing to beneficiaries on her death; (c) the plaintiff would not be a ‘capital investor’ in the property, in the sense that she would not receive any capital gain, or be entitled to the benefit of any capital growth in the property; (d) that neither Jamieson Cook nor Adam Cook, the plaintiff’s other children (and the brothers of the first defendant), would have any interest in the property once the plaintiff passed away; and (e) that if the defendants decided to move during the plaintiff’s lifetime, then the plaintiff would move with the defendants into the new property, and she would not be required to contribute to the purchase price of the new property. [12] No part of the arrangement contained a term as to how the parties would determine their respective interests in the property should the relationship break down or if, for any reason, the plaintiff left the property. [13] On 16 August 2015 the contract to purchase the property was completed and the parties all moved into the residence. At that time the granny flat had not been completed and the plaintiff moved into the main house with her daughter and family. [14] Between December 2015 and April 2017, the plaintiff contracted with a builder to renovate the granny flat. The plaintiff paid for the renovations to the granny flat entirely out of her own funds in the sum set out above and, once it was completed in April 2017, the plaintiff moved from the main house to the granny flat. [15] The plaintiff did not pay any rent or other household expenses at any time from the time she moved into the property in December 2015, or at any time thereafter during the course of her living there. That she did not do so was entirely consistent with the arrangement which had been reached. [16] After the plaintiff moved into the granny flat in April 2017, the living arrangements remained relatively harmonious. The plaintiff would assist the defendants in collecting children from school, ferrying children to and from sport or other activities 1 Both on the pleadings (or at least substantially) but also in the Agreed List of Facts set out at [46] below. -- 4 of 19 -- 5 and light household tasks. The plaintiff spent a considerable amount of time working on the garden in and around the property. [17] The defendants provided the plaintiff with companionship and assistance that one normally expects between children and parents. By way of examples only, the plaintiff attended the gym with the first defendant and other social activities, while the second defendant assisted the plaintiff when issues arose with her car. [18] But harmony was short lived. [19] In late 2017, the plaintiff was visited by one of her sons, Jamieson Cook, a brother with whom the first defendant did not share a close or loving relationship. The first defendant contended she did not wish her brother to attend the property because she held concerns for her personal safety, and that of her husband and children. The plaintiff took the view that her son ought to be entitled to visit her at her own house on the property. Mr Cook did visit on one occasion in late 2017, and his visit was apparently the cause of significant disharmony. [20] Despite this, the living arrangements continued as they were between late 2017 until the early part of 2023. On 13 April 2023 the first defendant sent a text message to the plaintiff proposing that she and the plaintiff talk about the plaintiff moving out of the property. [21] The text message read (with errors in original): “Hope you’re having fun and relaxing. Im just wanting to put this tough into your head so you have time to process it before we talk again when you’re back. We want yo buy you out (if we can) of your portion of this prop-erty. We talked a but once before about next steps but it didn’t go anywhere. There are many rea- sons for us and you and it’s something we have though about for a while but not in a position to do. It’s king of the right time for us now. It’s partly to help mine and Bretts relationship and party for yours and mine. Brett and I are struggling at the moment and for a while. He doesn’t have any privacy and feels like he needs time for him-self again. We wont survive if we cant move forwards and that will end up with us selling it and moving somewhere anyway. My relationship with you has struggled ever since the shit-storm with you oth-er son. It changed everything and I want to change it back but I can’t while we are here. I also think you need to slow down and trying to busy you-self on this property is too much for you now. You dont know your own limitations and always keep pushing. I dont want to drive in one day and you have fallen off the roof for some stupid reason. Anyway, thats what we would like to do and would like to chat about. Hope this isn’t too much of a shock.” [22] The plaintiff did not respond to the text message. -- 5 of 19 -- 6 [23] On 18 April 2023 the first defendant went to talk to the plaintiff to discuss the text message. Unbeknown to the plaintiff, the conversation was recorded by the first defendant. [24] In that conversation, the first defendant gave a number of reasons why the plaintiff ought to move out of the property, primary amongst them appeared to be marital disharmony which had arisen between the first and second defendants arising out of their lack of privacy from having the plaintiff live with them. The first defendant stressed the need for the plaintiff to move out of the property and a discussion ensued as to how the plaintiff might be reimbursed for her contribution. No agreement was reached. For herself, the plaintiff did not express any particular desire to move out of the property although eventually conceded that she did not want to remain living where she was not welcome. The discussion became heated. The plaintiff left the property shortly thereafter and has effectively never returned. [25] No offer was made by the defendants to purchase the plaintiff’s share of the property until 7 September 2023 when the defendants, by text message, offered to transfer to the plaintiff, within seven days, $250,000. The plaintiff rejected that offer. [26] The plaintiff seeks that the defendants pay to her a sum to represent a purchase of a replacement property in lieu of that which she sold in New South Wales in 2015. She maintains that she had a home of her own before the agreement, which home she gave up so as to live with her daughter. She seeks to be put back in the position that she was in before the agreement arose. Although not expressly pleaded as such, I take this to be a claim for equitable compensation. [27] At the hearing before me, and indeed throughout the conduct of the matter, the defendants accepted that they should refund the following amounts: (a) $110,116.41, being the plaintiff’s net contribution to the purchase price of the property; and (b) $100,000, which they contended represented the increased value of the property by reason of the construction of the granny flat renovation, or alternatively $160,804.42 being the actual expenditure on the granny flat renovation. [28] The defendants dispute the plaintiff’s entitlement to any further amount and specifically dispute an entitlement of the plaintiff to: (a) interest on any of the sums advanced from the date of advancement; (b) any share of the increased value of the property since purchase in 2015; (c) some value attributed to the life interest which has been terminated; and (d) any amount to represent the purchase of an alternative, or replacement, property which the plaintiff might seek to purchase. [29] In terms of further facts which are not in dispute, it is agreed that the Ormeau property now has a current market value of $1,750,000. -- 6 of 19 -- 7 The parties’ positions [30] Unlike many of the cases in which a dispute such as this arises between family members, the plaintiff does not maintain that she has an interest in the Ormeau property. She admits she was never to take an interest in the capital growth or the property, but she asserts that was only part of the agreement. The other parts included that she be able to live in the property for the rest of her life, and that she would have no rent or other outgoings for life. [31] The plaintiff contends that she has a right to compensation which falls into a number of different categories. [32] First, she asks that the court assess the value of her contribution (approximately $110,116.41 towards the original price and approximately $160,804.42 towards the renovation) and identify the current value in 2025 of those contributions. [33] Second, she maintains that prior to the property agreement, she owned a property on the central coast of New South Wales which was a comfortable home which she was in the process of paying off. She sold that property for $425,000 and maintains that to purchase an equivalent property now would cost between $800,000 and $900,000. She seeks an order that the defendants pay her for the value of such an equivalent property so that she may buy back into the market. The plaintiff did not identify what the size of her mortgage was in 2015 when she sold her home. [34] Framed as such, the plaintiff’s claims for compensation differ to the claims which have been previously made in similar cases. As a self -represented litigant, she identified no legal basis for these claims. [35] The defendants submit the plaintiff is entitled to equitable compensation as set out at [27] above, such being the minimum equity to do justice between the parties. Legal principles [36] The plaintiff identified no relevant legal principles. [37] The defendants submit that this is a joint venture constructive trust, and as such the applicable legal principle was described by the High Court in Muschinski v Dodds2 by Deane J at 618, as follows: “Both common law and equity recognize that, where money or other property is paid or applied on the basis of some consensual joint relationship or endeavour which fails without attributable blame, it will often be inappropriate simply to draw a line leaving assets and liabilities to be owned and borne according to where they may prima facie lie, as a matter of law, at the time of the failure. Where there are express or implied contractual provisions specially dealing with the consequences of failure of the joint relationship or endeavour, they will ordinarily apply in law and equity to regulate the rights and duties of the parties between themselves and the prima facie legal position will accordingly prevail. Where, however, there are no applicable contractual provisions or the only applicable provisions were not 2 (1985) 160 CLR 583. -- 7 of 19 -- 8 framed to meet the contingency of premature failure of the enterprise or relationship, other rules or principles will commonly be called into play. If, in the last-mentioned case, the relevant relationship is merely contractual and the contract has been frustrated without fault on either side, the present tendency of the common law is that contributions made should be refunded at least if there has been a complete failure of consideration in performance: cf. Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Varbour Ltd [1943] AC 31; Denny, Mott and Dickson Ltd v James B Fraser and Co Ltd [1944] AC 265 at 275; and, generally, Treitel, Law of Contract, 6th ed (1983), p 695ff.” [38] And later at 620, Deane J added: “… Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him to do so …” [39] In Baumgartner v Baumgartner,3 Mason CJ, Wilson and Deane JJ said, in relation to the above passage of Deane J’s judgment above, that his Honour had reached this result by applying the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions “… have been made in circumstances in which it was not intended that the other party should enjoy them.”4 [40] In King v Fister,5 the Court of Appeal described that a failed joint endeavour constructive trust is a remedial constructive trust based on principles of unconscionability, and: “[27] … Where property has been purchased and financial contributions have been made to it but the venture has failed, “equity will not permit [a] party to assert or retain the benefit of the relevant property to the extent it ought to be unconscionable for him to do so …” [41] A joint endeavour therefore exists where both parties have made contributions which are linked directly or indirectly to the acquisition, maintenance or improvement of the property the subject of the dispute, and the parties intend for the benefit of the 3 (1987) 164 CLR 137. 4 Ibid at 148. 5 [2022] QCA 47. -- 8 of 19 -- 9 contributions to be for their mutual enjoyment.6 The formulation of the remedy ought to involve an assessment of the respective contribution of the parties.7 [42] The New South Wales Supreme Court in Spink v Flourentzou,8 summarised the criteria that must be established to prove an entitlement to relief in the circumstances of joint endeavour constructive trust as, first, it is necessary that there be both a joint relationship or endeavour in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired. Second, the substratum of that joint relationship or endeavour must have been removed or the joint endeavour prematurely terminated “without attributable blame”. Third, there must be the requisite element of unconscionability, that is it would be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour. [43] The remedy of the declaration of a constructive trust is both discretionary and flexible.9 The remedy might be fashioned as a return of contributions, or a share of residue.10 [44] In JAB’s case, Wilson J said at [25]: “Equitable compensation may be an appropriate remedy in lieu of, or in addition to, the imposition of a constructive trust as an adequate remedy to address the unconscionable retention of assets or property by one party following the breakdown of a joint endeavour. An equitable lien or charge over the property of the joint endeavour may be imposed where a constructive trust is not appropriate. The amount of the charge or lien is typically the value of the plaintiff’s contribution to the joint endeavour.” (footnotes omitted) Evidence of witnesses and findings [45] The majority of the evidence proceeded by way of affidavit evidence-in-chief. There was limited cross-examination by the plaintiff of the defendants’ witnesses, and only targeted cross-examination of the plaintiff’s witnesses by the defendants. [46] It is unnecessary for me to make findings in relation to these key facts which are all admitted, but I set them out from completeness:11 “1. By 29 June 2015, the Plaintiff and the Defendants had agreed (the Property Arrangement) that: a. the Defendants would purchase a property at 18 Doherty Court, Ormeau (the Property), in their own names; 6 King v Fister [2022] QCA 47 at [35] (“King’s case”). 7 King’s case at [35], followed by Wilson J in JAB v The executors of the estate of the late MST [2022] QSC 226 at [118]. 8 [2019] NSWSC 256 (“Spink’s case”); see also Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 at [50] to [53]. 9 JAB v The executors of the estate of the late MST [2022] QSC 226 at [123]. 10 Spink’s case at [278]. 11 Agreed List of Matters Not in Dispute (errors in original). -- 9 of 19 -- 10 b. the Plaintiff would make a contribution to the purchase price of the Property in the following amounts: i. $110,116.21; and ii.the cost of design, alteration and rebuild of attached cottage. c. the Plaintiff could live with the Defendants for the remainder of her life, with the Defendants paying the mortgage and other bills on the property; d. the Plaintiff would not have an interest in the property which would be capable of passing to beneficiaries on her death; e. the Plaintiff would not be a “capital investor” in the property, in the sense that she would not receive any capital gain or be entitled to the benefit of any capital growth in the Property; f. that neither Jamieson Cook nor Adam Cook would have any interest in the Property once the Plaintiff passed away; and g. that if the Defendants decided to move during the Plaintiff’s lifetime, then the Plaintiff would move with the Defendants into the new property, and she would not be required to contribute to the purchase price of the new Property. 2. On 29 June 2015, the Defendants signed a contract to purchase the Property as joint tenants for a contract price of $825,000. Contributions to purchase price 3. The Plaintiff provided an amount of $110,116.41 to the First and Second Defendants for their use as part of the purchase price for the Property. 4. The Defendants contributed an amount of $749,715.75 to the purchase of the Property, comprising: a. $6,000 for the deposit; b. $742,500 in loan proceeds borrowed from ANZ; c. $1,215.75 in funds previously advanced to the trust account. Living at the Property 5. On 16 August 2015, the Defendants’ contract to purchase the Property settled and shortly thereafter they moved into the Property as their residence. They continue to reside at the Property. 6. The Plaintiff moved into the main house on the Property in December 2015 and lived there until about April 2017 when the attached cottage was built on the Property. The Plaintiff thereafter lived in the attached cottage until April 2023. The Plaintiff did not pay any rent or other household expenses during this time, consistently with the arrangement. Contributions post settlement 7. Between approximately November 2016 and April 2017, the Plaintiff arranged and paid for the existing double brick garage on -- 10 of 19 -- 11 the property and the attached workshop to convert it into a one- bedroom home for herself. 8. The Plaintiff spent an amount of $160,804.42 on the build and fitout of the attached cottage. 9. Following the completion of the renovations in approximately April 2017, the Plaintiff moved into her house over Easter 2017. 10. The Defendants have paid all other bills on the Property, including mortgage repayments, bills, rates, sewerage, water and other maintenance. This has comprised a total of $570,684.64, being the amounts spent in the following table. (Table omitted) Deterioration in the parties’ relationship 11. From approximately late 2017, the relationship between the Plaintiff and the Defendants significantly deteriorated due to: a. concerns on the part of the First and Second Defendant about Mr Jamieson Cook (Mr Cook) attending the Property, in particular because of safety concerns they held for themselves and their children; b. a view on the part of the Plaintiff that Mr Cook should be entitled to visit her at her own house on the Property; c. the Defendants’ lack of privacy from the Plaintiff; and d. additional strains on family relationships as a result of the continued cohabitation of the parties at the Property. 12. On 13 April 2023, the First Defendant sent a text message proposing that she and the Plaintiff talk about the Plaintiff moving out of the Property. 13. On 18 April 2023, the Plaintiff said that she would not stay where she was not wanted or welcome, and left the Property (and none of the parties discussed when or whether she would return). 14. On 7 September 2023, the Defendants offered to transfer the Plaintiff $250,000 within 7 days, and the Plaintiff rejected that offer. 15. The relationship between the parties has continued to deteriorate as a result of the proceedings and attempts to negotiate between the parties have failed. 16. In the premises of the above: a. there was a joint relationship or endeavour in which expenditure was shared for the common benefit in the course of and for the purposes of which the Property was acquired, on the terms of the Property Arrangement; and -- 11 of 19 -- 12 b. the substratum of that joint endeavour or relationship has been removed or terminated without attributable blame. 17. The Plaintiff and the Defendants agree that, given the deterioration in their relationship, it is no longer realistic that they could live together at the Property. 18. The Defendants accept that they should refund to the Plaintiff the following sums: a. $110,116.41 in net contribution to the purchase price as pleaded; and b. $100,000 in increased value of the Property as a result of the granny flat renovation, or alternatively $160,804.42 in actual expenditure on the granny flat renovation; but dispute the Plaintiff’s entitlement to any greater amount. 19. The Plaintiff seeks a greater amount of money to purchase an alternative property. 20. The current market value of the Property has been estimated by Heron Todd White as $1,750,000.” [47] As I set out in greater detail below from [50] onwards, these agreed facts are enough for me to find that a joint endeavour constructive trust arises. [48] In addition to these matters, I find that the evidence demonstrates that the plaintiff contributed substantially to the day-to-day running of the defendants’ household after she moved in with them. Both the first and second defendants, for some period, worked full-time, and I accept that the plaintiff contributed quite significantly with assistance to household duties including driving children to and from appointments, washing, cleaning, gardening and other household tasks. Little turns on any of that evidence however, and I do not propose to set it out in any greater detail. The evidence was broadly uncontentious, and there was nothing in the evidence to suggest that there was ever any agreement that the carrying out of those sorts of tasks should be seen as a separate or additional part of the non-financial arrangements between the plaintiff and the first and second defendants. The plaintiff herself agreed that she was happy to do these tasks and did not make any claim in respect of them. [49] Similarly, although there was some compelling evidence that the plaintiff’s son, Jamieson, contributed to the disharmony which arose between the plaintiff and the first defendant,12 ultimately the cause of the disharmony is not a factual matter that bears in any significant way upon my assessment as to the proper compensation to the plaintiff for the termination of the arrangements which existed between the plaintiff and the defendants. [50] The defendants submit that each of these elements are necessary to prove a failed joint endeavour constructive trust are proven. As to the first element, the defendants submit that it is uncontentious that there was a joint relationship or endeavour 12 Affidavit of Shannon Leigh Alderson sworn on 9 December 2024 at pages 84 to 90 contained in Exhibit 1. -- 12 of 19 -- 13 between the parties, in particular established by the evidence of the first defendant13 and the agreed facts. The plaintiff did not contend otherwise, and I accept this element is satisfied. [51] As to the third element, the defendants accepted throughout that there would be a requisite element of unconscionability for the defendants to retain the plaintiff’s money, and they do not seek to do so. The plaintiff did not contend otherwise, and I accept this element is satisfied. [52] It is only as to the second of these elements that the defendants contend there might be any dispute and that is whether the endeavour has been terminated ‘without attributable blame’, although the submission is that this element is also satisfied. [53] The defendants rely upon the statement of principle, “the concept of attributable blame must be understood and applied with some tolerance…it does not call for a judgment attributing blame among members of a family for the continuing relationship becoming intolerable …”.14 [54] The defendants submit that the joint endeavour has been terminated by them because of a breakdown in the relationship between the parties. The defendants gave evidence that living in close quarters with the plaintiff led to a loss of privacy for the defendants’ family. Marital disharmony became a feature of the first and second defendants’ relationship, and the first defendant was anxious to preserve her marriage. She felt she could not do so whilst the plaintiff was living in close proximity. [55] The first defendant was also anxious about the closeness of the relationship between the plaintiff and her son Jamieson, with whom I have already recorded the first defendant did not have a positive relationship. The first defendant had sought an apprehended violence order against her brother in October 2017. Again, while the plaintiff did not share the first defendant’s concerns about Jamieson in the tape- recorded conversation of 18 April 2023, or during the hearing, she did not challenge the reasonableness of the first defendant’s feeling in cross-examination. [56] The plaintiff did not, in truth, challenge the issue that the relationship had broken down without attributable blame, either at the time the first defendant raised it in the tape-recorded conversation of 18 April 2023, or during the hearing. In fact, the issue forms part of the Admitted Facts set out above. [57] I accept, and find, that the second element is established because the substratum of that joint relationship or endeavour has been removed, or the joint endeavour prematurely terminated, “without attributable blame”. Although it is the defendants who have chosen to end the arrangement, it cannot be said it is their ‘fault’ that the personal circumstances have led to that decision. No doubt with the benefit of hindsight, issues such as loss of privacy, and managing the visits of another sibling, ought to have been matters which were obvious before the arrangement was entered into; but it would be a mistake to attempt to attribute blame for that failure. At the 13 Affidavit of Shannon Leigh Alderson sworn on 9 December 2024 at paragraphs [11] to [22] but especially at [17] contained in Exhibit 1. 14 Bennett v Horgan (NSWSC, 3 June 1994, unreported), approved in Kriezis v Kriezis [2004] NSWSC 167 at [23], Hill v Hill [2005] NSWSC 863 at [35] and McKay & anor v McKay [2008] NSWSC at [16] and Spink’s case at [284]. -- 13 of 19 -- 14 very least, the failure to consider the issues was a failure of both parties, and not of the defendants alone. What is the appropriate remedy? [58] The defendants emphasised that the court should approach the compensation by reference to the minimum equity required to do justice between the parties.15 This is achieved, the defendants submit, by the return of the plaintiff’s contributions. However, it has been recognised at least since The Commonwealth v Verwayen16 that there are situations where the minimum equity will not be satisfied by anything short of enforcing a promise. Where that cannot be achieved, as here, the remedy is more flexible. Naturally the court can do no more than is just and equitable to both the parties in the circumstances. But: “Thus, after toiling for some time with the concept of the minimum equity to do justice in the field of proprietary estoppel, the law has moved to the position that the prima facie remedy in such a case is the making good of the relevant assumption on which the plaintiff acted, although where that relief would be disproportionate to the requirements of conscionable behaviour, equity may, as a matter of discretion, decree something less [Giumelli v Giumelli (1999) 196 CLR 101; Galaxidis v Galaxidis (No 2) [2002] NSWSC 831 [52]-[55]; O'Neill v Williams [2006] NSWSC 707 [73]; Tory v Tory [2007] NSWSC 1078].”17 [59] While Brereton J (as his Honour then was) went on that in the field of the premature failure of the substratum of the joint venture, the “guiding principle” is the return of contributions, his Honour did not suggest that was the outer limits of equitable compensation. In fact, it follows that if equity may do something less, it may also do something more. [60] Furthermore, the above principles do not limit the compensation to the plaintiff to the return of her contributions. There may be circumstances where that is equitable, but there will be others where it is not. The issue is whether the facts as found should attract the intervention of equity. Once that is determined in the affirmative (as it was accepted by the defendants), the court must look at the circumstances of the case to decide in what way the equity can be satisfied.18 [61] The criterion of “just and equitable” involves judgments which are evaluative and somewhat subjective.19 Nevertheless, the broad, evaluative and ultimately discretionary nature of the decision does not mean it is a power at large. Rather, the court will be bound to act judicially, exercising its discretion by reference only to such considerations affecting the transaction as may be material to the decision which the court is called upon to make.20 15 McKay & anor v McKay [2008] NSWSC 177 at [25] to [30]. 16 (1990) 170 CLR 394 at 412-414, 429, 442, 487. 17 McKay & anor v McKay [2008] NSWSC 177 at [32]. 18 Giumelli v Giumelli (1999) 1196 CLR 101 at 113. 19 Davis v Davis [2024] NSWCA 222 at [13]. 20 Talga Ltd v MBC International Ltd (1976) 133 CLR 622 at 634. -- 14 of 19 -- 15 [62] The defendants submit that the court should not order “expectation damages” for the loss of the life interest because the initial contribution was in consideration of a life interest.21 I do not accept the submission as so simply put. [63] The Agreed Facts demonstrate that the contribution to the purchase price and the renovation were just that (Agreed Fact 1(b), 3, 7 and 8), and were a transferable contribution to any substitute property (Agreed Fact 1(g)). By Agreed Fact 1(c) the plaintiff was entitled to live in the property, for life, and the defendants would pay the outgoings. Any increase to the capital value was to remain with the defendants (Agreed Fact 1(e)). [64] In the circumstances of this case, I find that the plaintiff’s consideration for the life interest was the plaintiff’s agreement for forego an interest in the capital value improvement of the property. Rather than share in the increases in capital value, she bargained away that increase in exchange for the right to live there rent free, and with no payment of any outgoings for life. The latter was of significant value to the plaintiff because it meant she could live frugally but comfortably, on the aged pension for life. [65] By the combination of the agreement and the termination of it, the first and second defendants will still receive the capital contribution, with whatever increases attach to it, but the plaintiff will no longer receive the value of the relief from weekly outgoings. That was a real financial benefit to her, and the loss of it ought to be compensated. [66] Further, there are numerous factors which compel the conclusion that the return of contributions alone is not a just and equitable outcome. [67] First, the plaintiff was to remain living in the family home with the defendants for the course of her natural life. That was to be the case whether the defendants remained living in the Ormeau property or moved to some other new property. On the agreed facts, even if the defendants had moved to a new property, the plaintiff would not have been required to contribute to the purchase price of a new property, her capital would have continued to be utilised, and she would have continued to have a right of residence with the defendants for the rest of her life. [68] The plaintiff is currently 76 years of age having been born on 15 August 1948. According to life expectancy tables, a 76-year-old woman has a further 14.05 years of life expectancy. The plaintiff’s agreement therefore with the defendants was a valuable agreement to her because: (a) she was to have a comfortable roof over her head for life; (b) she was not required to pay rent or mortgage for the balance of her life; and (c) she had no obligation for other outgoings, be it rates, electricity or maintenance costs for the balance of her life. [69] Second, the plaintiff had provided a significant financial advantage to the defendants by the provision of a significant capital sum to the original purchase price. The plaintiff’s original contribution represented about one-eighth (12.5%) of the overall purchase price, providing to the defendants a substantial deposit such that they had to 21 Tasevska v Taveski & Anor [2011] NSWSC 174 at [89]. -- 15 of 19 -- 16 borrow less, and repay less. They have had the benefit of that capital sum since 2015 and, conversely, the plaintiff lost the benefit of being able to utilise that sum for any other purpose. [70] Third, the plaintiff owned a home of her own on the New South Wales central coast which she sold in 2015 for a sum of $425,000. The plaintiff gave evidence, which was unchallenged, that for her to purchase a replacement property of similar value now, would cost between $800,000 and $900,000. Whilst I accept that the plaintiff has no particular expertise to give evidence as to rising property values on the New South Wales central coast over the last decade, it can fairly be accepted as a matter of common knowledge that property prices have risen substantially in that time. It follows that whatever sum might be required for her to purchase a replacement property now, it can be accepted that the sum for her to re-enter the market would today be substantially greater than that which existed when she exited the market a decade ago. [71] By making reference to those sums, I do not ignore of course that the plaintiff did not own her own home unencumbered in 2015, but the fact remains that to re-enter the market now would be require a substantially greater investment than that for which she exited the market in 2015. [72] Relevant to that issue too, is the fact that the plaintiff is now 76 years of age and retired. The likelihood of her now being able to secure a mortgage must be remote. [73] Fourth, the plaintiff also used a substantial capital sum ($160,804.42) for the refurbishment of the granny flat. Again, that is a substantial capital sum which has been lost to the plaintiff which must today have a greater value than a mere refund of the contributions. [74] Fifth, the plaintiff resigned from her work in Gosford and retired in 2015. The chance of her returning to work at age 76 must now be remote. [75] Sixth, while the plaintiff agreed she was not to share in the capital value rises of the property, she did so in exchange for other parts of the promise which included the right to live in the property expense-free for the whole of her life. To hold the plaintiff to that aspect of the promise (no share in capital value) while relieving the defendants from their obligation to perform theirs (provision of cost-free accommodation for life) would be manifestly unfair to the plaintiff, and result in a windfall to the defendants. [76] Seventh, the defendants submit that the plaintiff should not recover interest on the contributions because there was in fact no termination of the agreement until 2023, therefore no cause of action arose prior to that time, and no interest could be awarded. Assuming for present purposes that to be correct, that only serves to demonstrate that the refund of contributions, without reference to the present value of those contributions versus the value in 2015 (or 2017 when the granny flat was completed), creates a significant injustice to the plaintiff. [77] I am therefore satisfied that a return of contributions alone, for the same sums that were advanced almost a decade ago, is not just and equitable in the circumstances of this case. It is unconscionable and inequitable to the plaintiff to do so. [78] The real difficulty is the assessment of the minimum remedy. -- 16 of 19 -- 17 [79] The only evidence as to the value of the plaintiff’s life interest is contained in a report of Herron Todd White which is exhibited to the plaintiff’s affidavit. The author of that report, Mr Gillespie, was not called, but his report was admitted without challenge. According to Mr Gillespie, he calculated the plaintiff’s life interest, as he described it, as a value which could be calculated as $100,000 (the value which he attributed to the granny flat) multiplied the figure of 0.45304, leading to a figure of $45,304. The calculation which he performed was, respectfully, somewhat unhelpful because the: (a) figure of $100,000 which he attributed to the granny flat was unexplained. As such the basis for the expression of the opinion that the granny flat “added value” of $100,000 was not exposed; (b) it is not clear where the figure of 0.45304 was drawn from. It may be that it is a figure attributable to the 5% deferred tables on a present lump sum, referrable to the plaintiff’s life expectancy (which is not identified), but again there is no evidence as to that effect in his report; and (c) calculating the present value of the sum of $100,000 is not the same as properly valuing the life interest which may have required an analysis of the rent and outgoings the plaintiff would have had to pay but for the arrangement. [80] The plaintiff submitted, with some force, that given that the sum which was spent on the construction of the granny flat between 2015 and 2017 was a sum of over $160,000, she could not understand how, some years later, with the benefit of rising property values, the value which could be attributed to the granny flat was only $100,000. That is particularly so, she contended, in circumstances where the property was purchased for $825,000, and currently, according to Mr Gillespie’s report, now has a value of $1.75 million (without reference to the life interest). Without any proper explanation by Mr Gillespie in his report as to how he reached the figure of $100,000, her criticism seems to have some force. Nevertheless, Mr Gillespie was not required to give evidence or for cross-examination. That does not mean that the court is bound to accept his opinion,22 but particularly so in circumstances where the basis for it is not exposed.23 [81] In any event, it seems to me that the calculation of the life interest by reference solely to the value of the granny flat, as described by Mr Gillespie, is not a strong foundation to calculate the value of that interest because: (a) it assesses the value of the property alone rather than the plaintiff’s contribution to it; and (b) it takes no account of the value to the plaintiff of the fact that, according to the agreement, she would not have been required to pay outgoings of any sort. [82] In the circumstances, I do not consider Mr Gillespie’s calculation to be one upon which the court can place particular reliance, although his adopted methodology might be of assistance. [83] I am conscious that the burden of proof is important, and a party seeking relief must place evidence before the court establishing their entitlement to that relief. 22 Lambourne and Ors v Marrable and Ors [2023] QSC 219 at [223]. 23 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]. -- 17 of 19 -- 18 Nevertheless, the court is entitled to extend some latitude to self-represented litigants in the way described by Applegarth J in Mbuzi v Hall & Anor,24 provided that in doing so injustice and prejudice is not occasioned to other parties. [84] I am also conscious that the valuation report was obtained jointly by the parties as a consequence of a direction made by this court, but that the valuation of the life interest was sought at the request of the first and second defendants, not the plaintiff herself.25 That the plaintiff exhibited the report to her own affidavit, and the author was not required for cross-examination, does not mean that the opinion expressed in the report ought to be construed unfavourably against the plaintiff. [85] To do equity to all the parties, I propose to take the contributions as made by the plaintiff of $110,116.41 (plaintiff’s net contribution to the purchase price) plus $160,804.42 (plaintiff’s actual cost to construct the granny flat) being a total of $270,092.83. Adopting a similar methodology to that contained in the valuation report, but starting with the figure of $270,092.83 instead of $100,000, and applying the multiplier used by the valuer of 0.45304 the value of the life interest would be $122,362.85, which I would round down to $120,000. [86] I cross check the reasonableness of that figure in this way. [87] The plaintiff’s financial contribution to the house was, as I have set out above, approximately one-eighth of the value. That one-eighth would have a currently value of $218,750 ($1,750,000 x 12.5%). I cannot award the plaintiff the full value of that contribution because that was not the agreement. But the calculation serves to demonstrate, at the very least, that the approach I have taken does not represent over- value. [88] I therefore find that the plaintiff is entitled to: (a) the value of her contributions of $270,092.83; plus (b) the value of the life interest rounded down to $120,000. [89] The total compensation therefore is the sum of $390,092.83 ($270,092.83 + $120,000). [90] I allow interest only for the sums advanced from the date upon which the cause of action arose, being the sum of $270,092.83 since 18 April 2023. The defendants identified three applicable interest rates since that date varying between 7.1% and 8.35%. I propose to allow interest only at 6% for the whole period to reflect the non- commercial nature of the transaction, a sum of $29,710 over the 22 month period. [91] There is no unfairness to the defendants in this approach in circumstances when: (a) the defendants have in fact had the benefit of the total sum of $270,092.83 since purchase and renovation was completed in 2017 (although on an incremental basis between 2015 and 2017); 24 [2010] QSC 359 at [27]. 25 Order of Freeburn J 20 August 2024. -- 18 of 19 -- 19 (b) the factors I have listed above at [67] to [77] are balanced against the fact that the defendants are not required to honour their part of the bargain by providing accommodation and outgoings to the plaintiff for life; (c) the defendants are now receiving the interest they would have received after the plaintiff’s death, accelerated by some 14.05 years; (d) the evidence showed that after the plaintiff moved out, the defendants placed her things in storage, and moved their own child into the granny flat. They have therefore had the use of that asset whilst the plaintiff has not; and (e) the plaintiff is not sharing in the increased value of the property which has arisen over the last decade (from $825,000 to $1.75m). [92] I therefore order that the plaintiff is entitled to be repaid the sum of: (a) the value of her contributions of $270,092.83; plus (b) the value of the life interest rounded down to $120,000; plus (c) pre-judgment interest fixed at $29,710; and all secured by an equitable charge over the property at 18 Doherty Court, Ormeau. [93] I will hear the parties as to costs. -- 19 of 19 --