Buchan v Young & Anor [2020] QDC 216

DISTRICT COURT OF QUEENSLAND CITATION: Buchan v Young & Anor [2020] QDC 216 PARTIES: PAULINE ANN BUCHAN (plaintiff) v GARY PAUL YOUNG (first defendant) and KIM LOUISE YOUNG (second defendant) FILE NO/S: D 24/17 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Maroochydore DELIVERED ON: 3 September 2020 DELIVERED AT: Maroochydore HEARING DATE: 18, 19, 20, 22 February 2019, 17 May 2019 (last submissions received 14 June 2019) JUDGE: Long SC DCJ ORDER: 1. The defendants pay the plaintiff the sum of $7,757.73. 2. The defendants pay the plaintiff the sum of $209,475.84. 3. The parties are to make written submissions as to costs, such submissions not to exceed three (3) pages in length: (a) in the case of the plaintiff, by filing and serving such submissions on or before 11 September 2020; and -- 1 of 80 -- 2 (b) in the case of the defendants, by filing and serving such submissions on or before 19 September 2020. 4. It is declared that the defendants hold their interests in the property described as Lot 8, SP 265513, Title Reference 51027121, located at 56 Kentish Road, Kiels Mountain on trust for the plaintiff beneficially as to the sum of $177,521.90 and in the remainder beneficially for themselves. 5. The parties are granted liberty to apply. CATCHWORDS: EQUITY – RESTITUTION – UNJUST ENRICHMENT – Where the plaintiff organised and paid for refurbishment costs to real property owned by the second defendant – Whether the refurbishments were carried out with the defendants’ knowledge, authority and agreement – Whether the refurbishments conferred a quantified benefit to the defendants EQUITY – RESULTING TRUST – PRESUMPTION OF ADVANCEMENT – REBUTTING THE PRESUMPTION OF ADVANCEMENT – CONSTRUCTIVE TRUST – Where the plaintiff advanced monies to her son and daughter- in-law (the defendants) for the purchase of real property – Whether the payments were a voluntary gift – Alternatively, whether the payments were advanced to further a joint endeavour involving mutual benefit – Whether there was a failure of a joint endeavour – Whether there is attributable blame – Whether there was a common intention of the parties as to sharing beneficial interest – Whether the defendants retention of the entire beneficial interest in the real property is unconscionable – Whether the plaintiff is estopped from claiming an interest in the real property EQUITABLE REMEDIES – Where no valuation evidence was adduced – Addressing the unconscionability of the defendants’ position – Whether to grant relief by way a declaration of constructive trust – Whether to grant relief by way of the appointment of statutory trustees for sale LEGISLATION: Civil Proceedings Act 2011 (Qld), s 58 CASES: Anderson v McPherson (No 2) (2012) 8 ASTLR 321 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 -- 2 of 80 -- 3 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Baumgartner v Baumgartner (1987) 164 CLR 137 Brown v Manuel [1996] QCA 65 Calverley v Green (1984) 155 CLR 242 Charles Marshall Pty Ltd v Grimley (1956) 95 CLR 353 Commonwealth v Verwayen (1990) 170 CLR 394 Commonwealth v Verwayen (1990) 170 CLR 394 Crafter and Crafter [2011] FamCA 122 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 Grant v Edwards [1986] Ch 638 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Herrod v Johnston [2013] 2 Qd R 102 Hungerfords v Walker (1989) 171 CLR 125 Jones v Dunkel (1959) 101 CLR 298 Knox v Knox, per Young J, unreported, 16/12/1994 Legione v Hately (1983) 152 CLR 406 Macquarie Bank Ltd v Lin [2005] QSC 221 Maharaj v Chand [1986] AC 898 McKay v McKay [2008] NSWSC 177 Muschinski v Dodds (1985) 160 CLR 583 Pain v Pain & Ors [2006] QSC 335 Pascoe v Turner [1979] 1 WLR 431 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Peterson v Hottes [2012] QCA 292 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Shepherd v Doolan [2005] NSWSC 42 Sirtes v Pryor [2005] NSWSC 1082 Swettenham v Wild [2005] QCA 264 Thompson v Palmer (1933) 49 CLR 507 Turner v Dunne [1996] QCA 272 Walton Stores v Maher (1988) 164 CLR 387 Waterhouse v Powers [2003] QCA 155 West v Mead [2003] NSWSC 161 COUNSEL: J P Mould for the plaintiff D C Fahl for the defendants SOLICITORS: Greenhalgh Pickard for the plaintiff Andrew Fogg Lawyers for the defendants -- 3 of 80 -- 4 INDEX Page INTRODUCTION 5 BACKGROUND CIRCUMSTANCES 5 THE GENESIS OF THE PROCEEDINGS 8 REFURBISHMENT COSTS CLAIM 11 Issues 11 Whether the refurbishment costs were incurred with the knowledge and authority of the defendants? 12 Whether there was agreement that the defendants would reimburse the plaintiff for the refurbishment costs? 14 Whether the defendants received a benefit from the refurbishment costs incurred by the plaintiff? 17 Whether the plaintiff incurred the refurbishment costs in circumstances where they are otherwise recoverable from the defendants on any other legal basis? 20 KENTISH ROAD CLAIM 25 Issues 25 Some Principles 26 Whether there was a gift or a joint endeavour? 34 Has the relationship of the parties broken down and if so, is there attributable blame? 43 Does a resulting trust arise in the circumstances? 55 Was it intended that the plaintiff have a beneficial interest in Kentish Road? 58 Is there unconscionability in the defendant’s retention of the entire beneficial interest in Kentish Road? 61 Does an estoppel arise or operate against the plaintiff having relief? 72 Remedy 74 CONCLUSION 79 -- 4 of 80 -- 5 Introduction [1] By an amended claim filed with leave on 22 February 2019, the plaintiff claims:1 (a) the recovery of $6,574.34 for breach of contract or debt, in respect of money expended by the plaintiff on the property 4 Langford Close, Taunton, in the United Kingdom (“the Langford Close property”) to recover possession and effect some repairs in 2014 (“Initial Expenses Claim”); (b) the sum of $29,196.85 in restitution, in respect of money expended by the plaintiff in 2016 on refurbishments carried out to the Langford Close property (“Refurbishment Costs Claim”); (c) a declaration of trust and consequential orders relating to the real property located at 56 Kentish Road, Kiels Mountain (“Kentish Road”), which, in substance, seeks recompense for money, paid by the plaintiff to the defendants and which was applied toward the purchase of Kentish Road (“Kentish Road Claim”); (d) interest pursuant to section 58 of the Civil Proceedings Act 2011 (Qld); and (e) costs. [2] By the Third Amended Defence, also filed with leave on 22 February 2019, the defendants conceded the Initial Expenses Claim,2 and the quantum of the remaining claims is admitted.3 Background Circumstances [3] A good deal of the contextual or background circumstances to the disputes are not in issue. What immediately follows is a summary of those uncontroversial circumstances.4 1 See Defendants’ Written Outline of Submissions, filed 8/4/19, at [2]. 2 Third Amended Defence, filed with leave 22/02/19, at [6]. 3 Third Amended Defence, filed with leave 22/02/19, at [10]; T4-2.45-46. 4 Largely, as taken from concessions made by the defendants, in pleadings and written submissions. -- 5 of 80 -- 6 [4] The plaintiff is a retiree of advanced years.5 She is the mother of the first defendant (“Gary Young”), and mother-in-law of the second defendant (“Kim Young”).6 The defendants are married.7 Prior to the circumstances which are the genesis of this proceeding, the parties had shared a generally positive relationship, including regular communication after the defendants came to Australia, particularly between the plaintiff and Mrs Young by emails, Skype calls and text messages utilising a mobile telephone application called “WhatsApp”.8 [5] In about 2009, Kim Young purchased the Langford Close property in the United Kingdom.9 In 2010, the defendants came to Australia and after initially travelling,10 settled on the Sunshine Coast in a rental property at 118 Kentish Road, Kiels Mountain.11 [6] In 2012 and 2014, the plaintiff travelled from the United Kingdom to stay with the defendants on the Sunshine Coast.12 The parties shared happy and harmonious times together,13 although the plaintiff did not have a very clear recollection of the 2012 visit.14 During the November 2014 visit, the plaintiff expressed a desire to come to live with the defendants in Australia, which was embraced by the defendants.15 [7] In 2014, the plaintiff was instrumental in the removal of a defaulting tenant, recovery of rental arrears and carrying out some repairs to the Langford Close property.16 This relates to the conceded Initial Expenses Claim for $6,574.34. [8] After the plaintiff had returned to the United Kingdom from her visit to Australia in November 2014, the plaintiff and the defendants, principally Kim Young, exchanged communications about the prospect of buying a property on the Sunshine Coast. The 5 Second Further Amended Statement of Claim, filed 20/2/19, at [1]; Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [115]-[116]. 6 Second Further Amended Statement of Claim, filed 20/2/19, at [1]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [1]; Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [115]-[116]. 7 Ibid. 8 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(a)]; T1-29.7-15; T1-97.10-25. 9 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(c)]; T3-100.15-19. 10 T3-100.23-24; T2-86.18-20. 11 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(b)] (Note: 118 Kentish Road is incorrectly stated as 116 Kentish Road). 12 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(d)]; T1-98.4-33; T2-90.7-9. 13 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(d)]; T1-98.35-37. 14 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(d)]; T1-98.5-13. 15 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(e)-(f)]; T2-7.10-34. 16 Second Further Amended Statement of Claim, filed 20/2/19, at [3]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(b)]. -- 6 of 80 -- 7 plaintiff expressed the desire to provide funds toward the purchase of a property that was considered suitable by the defendants.17 The parties agreed to the effect that at a later time and after the death of her own mother, the plaintiff would come to live at the property to be acquired.18 As early as March 2015, the Plaintiff was pursuing an application to relocate to Australia.19 [9] On 26 September 2014, the plaintiff sent an email to the defendants proposing that she occupy the Langford Close property.20 In late 2015 the plaintiff and Kim Young discussed the plaintiff’s intention to move into the Langford Close property and carry out some refurbishments.21 The specifics of this conversation are disputed by the parties. However, it is not disputed that in January and February 2016, the plaintiff began carrying out refurbishments to the Langford Close property.22 The plaintiff commenced residing at the Langford Close property on or about 18 February 201623 and did not pay any rent or fee for her occupation of the Langford Close property,24 where she remained until it was sold.25 The defendants acknowledged that the rent- free arrangement was tied to the fact that the plaintiff was to provide money to assist with the purchase of a property on the Sunshine Coast.26 [10] The defendants admit that: (a) the plaintiff caused the work to the Langford Close property and expended the quantum claimed;27 (b) the plaintiff undertook the refurbishments of the Langford Close property with the qualified agreement of Mrs Young;28 and 17 Third Amended Defence, filed with leave 22/02/19, at [9(c)]. 18 Third Amended Defence, filed with leave 22/02/19, at [9(g)]. The plaintiff’s mother passed away in December 2016: Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [54(a)(iii)], [118]. 19 Exhibit 1, p 91; Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(h)]. 20 Third Amended Defence at [8(a)]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(d)]; Exhibit 1, p 89. 21 Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(e)]; Exhibit 1, p 101. 22 Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(f)]; T1-36.21-22; T1-39.37. 23 Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(g)]; T1-34.17-25. 24 Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(h)]; T1-35.3-4. 25 Second Further Amended Statement of Claim, filed 20/2/19, at [2]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(i)]; T1-35.20-21. 26 Defendants’ Written Outline of Submissions, filed 8/4/19, at [34(b)]; T3-129.7-13; Exhibit 1, p 112. 27 Defendants’ Written Outline of Submissions, filed 8/4/19, at [10(j)]. 28 Defendants’ Written Outline of Submissions, filed 8/4/19, at [6(a)]. -- 7 of 80 -- 8 (c) the works carried out resulted in a “marginal benefit” to the value of the Langford Close property.29 [11] In January 2016, the defendants contracted to purchase Kentish Road.30 On three separate occasions, the plaintiff transferred money, in a total sum of $321,748.01 (AUD) from the United Kingdom to the defendants as follows:31 • 25/1/16: $20,000.00 (AUD); • 18/3/16: $189,542.01 (AUD); • 22/3/16: $112,206.00 (AUD). The plaintiff received no relevant legal advice prior to the subject transactions.32 The funds were applied to the deposit for and settlement of, the Kentish Road purchase.33 The defendants borrowed a total of $250,518.60, which, after the deduction of fees and charges, allowed application of $248,605.60, toward the purchase of Kentish Road.34 The purchase of Kentish Road settled on 23 March 2016,35 with the legal title of the property registered solely in the names of the defendants.36 The Genesis of the Proceedings [12] About the time of the Kentish Road settlement and into April 2016, the plaintiff came to stay with the defendants for approximately three to four weeks.37 Initially, the plaintiff resided with the defendants at their rental property at 118 Kentish Road, but during her stay moved with the defendants to the property at 56 Kentish Road (“Kentish Road”).38 The plaintiff claims that some events during this visit led to the irretrievable break down of the relationship between the plaintiff and the defendants. The plaintiff outlines a number of instances which made her feel unwelcome,39 but 29 Defendants’ Written Outline of Submissions, filed 8/4/19, at [33], Third Amended Defence, filed with leave 22/02/19, at [11]. 30 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(i)]; Exhibit 1, pp 14-25. 31 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(j)]; Exhibit 1, pp 48-60. 32 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [117]; T1-64.33-34. 33 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(l)]; T3-65.4-7. 34 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(m)]; Exhibit 1, pp 46-47. 35 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(k)]; Exhibit 1, p 44. 36 Exhibit 1, p 45. 37 Second Further Amended Statement of Claim, filed 20/2/19, at [13(c)]; Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(n)], [60]; T1-79.2. 38 Defendants’ Written Outline of Submissions, filed 8/4/19, at [41(n)]; T1-66.1-3; T2-108.39-40. 39 Amended Reply, filed 17/9/18, at [12]. -- 8 of 80 -- 9 agreed that during the stay the parties still shared some enjoyable times.40 The plaintiff described the concerning conduct to include:41 (a) a delayed greeting by Kim Young, upon the plaintiff’s arrival;42 (b) Kim Young asked the plaintiff to clean the house and chastised the plaintiff for not doing so properly;43 (c) Kim Young chastised the plaintiff for using too much water in a kettle, placing the washing-up liquid on the wrong side of the sink and not driving her vehicle correctly;44 (d) the defendants informed the plaintiff that their male friend would be staying at the property and chastised the plaintiff for suggesting that she should stay in a hotel;45 (e) the defendants withdrew their customary social interaction with the plaintiff and spoke in an unfriendly way towards the plaintiff;46 (f) an incident at a restaurant that the parties attended;47 (g) Kim Young falsely accused the plaintiff of defaming the defendants to her friends;48 (h) the defendants failed to have photos of the plaintiff displayed in the house;49 (i) the defendants were dismissive about helping the plaintiff fill out sponsorship forms pertaining to her Australian visa application;50 and (j) the defendants were uncongenial in farewelling the plaintiff upon her departure.51 During the visit Gary Young said words to the effect of, “What do you think Mum, good investment? We’ll double our money in five years, split it and bugger off!”52 40 T2-37.14-18. 41 Amended Reply, filed 17/9/18, at [12]; Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [84]. 42 T1-65.22-27. 43 T1-77.38-45. 44 T1-75.34-38; T1-75.38-40; T1-77.18-36; T2-35.13-15. 45 T1-76.24-28. 46 T1-75.41-45; T2-35.46-47. 47 T 1-76.30-34. 48 T1-77.10-11. 49 T1-76.41-42. 50 T1-72.29 – T1-73.45 51 T1-79.30-34. 52 Second Further Amended Statement of Claim, filed 20/2/19, at [14(a)(iii)]; Third Amended Defence, filed with leave 22/2/19, at [13(a)(iii)]; cf T1-69.1-3. -- 9 of 80 -- 10 The plaintiff points to this as something which caused her to feel concerned and “unrested”.53 The defendants contend that this statement was a frivolous remark that did not convey any breakdown in the relationship or desire to terminate any arrangements between the parties.54 Although the plaintiff appeared to accept in cross-examination that there was as sense of frivolity in the remark, it nevertheless remained in her mind.55 [13] The defendants gave evidence to the effect that they were not aware of the plaintiff’s concerns, or at least their extent, and point to the fact that the plaintiff left on her scheduled departure date and continued to exchange text messages with Kim Young after her visit.56 [14] The defendants first became aware that the plaintiff had reconsidered her intended relocation to Australia when a text message was sent to Kim Young on or about 16 May 2016.57 Following this, various communications ensued between the plaintiff and the defendants,58 including an email from the plaintiff on 31 May 2016, where she raised the matter of whether she would be financially reimbursed from the proposed sale of the Langford Close property.59 It is convenient to now note that this occurred subsequently to the plaintiff’s more detailed explanation of her change of mind as to coming to live in Australia,60 and in response to the defendants’ email to the plaintiff dated 30 May 2016 which proposed the sale of the Langford Close property.61 Prior to the next response of the plaintiff, by email dated 6 June 2016,62 there was an email from the defendants which included the assertion: “Yes, our intention has always been that we would reimburse you from the sale of Langford Close but it obviously won’t cover the whole sum now.”63 53 T1-69.8. 54 Third Amended Defence, filed with leave 22/02/19, at [13(iii)]. 55 T2-43.1-37. 56 Defendants’ Written Outline of Submissions, filed 8/4/19, at [79], [82(d)], [83]; Exhibit 1, pp 132- 138. 57 Third Amended Defence, filed 22/2/19, at [13(a)(ii)] and admitted at [13] of the Amended Reply, filed 17/9/18. 58 See Exhibit 1, pp 139-183. These are examined in detail subsequently in these reasons at [72]. 59 Exhibit 1, p 151. 60 By email dated 19/5/16: Exhibit 1, p 150, which is discussed below at [78]. 61 Exhibit 1, p 151. 62 Exhibit 1, p 152. 63 Exhibit 1, p 151. -- 10 of 80 -- 11 [15] On 31 October 2016 the defendants sold the Langford Close property for the sum of £200,000, of which the defendants received approximately £110,000 net proceeds.64 On or about 1 November 2016, the defendants paid the plaintiff £90,000 ($144,226.11) from the net proceeds of sale of the Langford Close property.65 It is to be noted that particularly given the express reference in the communication from Gary Young as to the calculation of the amount of that repayment, that he had not “included the money you spent on renovations”,66 the parties have proceeded on that basis and that the repayment is to be taken into account in respect of the plaintiff’s claim in relation to Kentish Road. [16] On 24 November 2016, the plaintiff registered a caveat over the title of Kentish Road on the basis of claiming an interest pursuant to a constructive trust and/or implied or resulting trust.67 Refurbishment Costs Claim Issues [17] In relation to the Refurbishment Costs Claim, the parties identified the following issues to be determined:68 (a) whether the refurbishment costs were incurred with the knowledge and authority of the defendants; (b) whether there was any agreement that the defendants would reimburse the plaintiff for the refurbishment costs; (c) whether the defendants received a benefit from the refurbishment costs incurred by the plaintiff; and (d) whether the plaintiff incurred the refurbishment costs in circumstances where they are otherwise recoverable from the defendants on any other legal basis. [18] The defendants identified the essence of the factual dispute as:69 64 Second Further Amended Statement of Claim, filed 20/2/19, at [18]; T1-123.43-45; T1-50.25; T1- 86.24-25. 65 Second Further Amended Statement of Claim, filed 20/2/19, at [19] and admitted at [16(a)] of the Third Amended Defence, filed 22/2/19; T3-119.33-34. 66 Exhibit 1, p 166, as discussed in more detail below at [61]. 67 Second Further Amended Statement of Claim, filed 20/2/19, at [22]. 68 MFI A, at [2]. 69 Defendants’ Written Outline of Submissions, filed 8/4/19, at [11]. -- 11 of 80 -- 12 (a) whether Mrs Young authorised the works to the nature and extent they were performed; (b) whether the works were performed by the plaintiff on the understanding that they were for her benefit, to enjoy her occupation of the Langford Close property; and (c) whether it was intended that the defendants receive any consequential benefit to the value of the Langford Close property by reason of the works. Further, it is also put in issue as to whether there is any sufficiently identified legal basis for the relief sought by the plaintiff.70 Whether the refurbishment costs were incurred with the knowledge and authority of the defendants? [19] On the evidence, it should be concluded that the refurbishment costs were incurred with the knowledge and authority of the defendants and particularly Kim Young, as the legal owner of the property which was refurbished. It is suffice to note that the renovations to which these costs relate, were undertaken in a period immediately prior to the plaintiff coming to Australia and in the context of the ongoing discussions in respect of the purchase of real estate here. In that respect, Kim Young conceded that there were communications by Skype, most Sundays from October 2015,71 and as the evidence demonstrated, also various forms of communication by social media. Further, each of the defendants conceded knowledge of the plaintiff undertaking the renovations.72 [20] Each of the defendants sought to qualify the extent to which they conceded that the plaintiff was authorised to do the renovations.73 Their evidence reflected the same contention that the plaintiff was told not to go mad or crazy. It appears that it was the women who more generally conducted these communications by social media and the written conversations are mostly between the plaintiff and Kim Young. Because 70 Defendants’ Written Outline of Submissions, filed 8/4/19, at [12], [25]-[29]; Defendants’ Written Reply, filed 13/5/19, at [4]-[14]. 71 T4-9.38-43. 72 T3-22.40, per G Young; T4-5.39-46, per K Young. 73 T3-22.42-45, per G Young; T3-107.39-42, per K Young. -- 12 of 80 -- 13 of her position as the legal owner of the Langford Close property, it is instructive to note some of the contents of such communications, as touched on this issue: (a) In an email of 16 November 2015, the plaintiff wrote: “with regard to Langford Close. I am looking forward to moving in there and seeing what I can do, if required, to make it more saleable. Obviously there will be a budget limit and I shall seek professional advice before and I do anything at all. I’d like to get as much as the going rate would be, for you!”; (b) In the further context that the plaintiff’s evidence was that she told the defendants that her budget to do the renovations would be £10-15 thousand pounds,74 whereas Kim Young conceded only that the plaintiff had said she had a budget but did not “ever recall there being an actual price”,75 the following recorded communications may be noted: (i) In WhatsApp message exchanges on 13 January 2016, which are in obvious reference to the renovations, Kim Young says: “I just your taste, just remember it’s to sell eventually so please don’t spend too much £££”. The response is:76 “No, have already set a budget and will stick to it rigidly…” (ii) And in a WhatsApp message identified as sent on 31 January 2016, Kim Young says:77 “It’s all over to you now & what you do to the place I shall leave to your discretion”. [21] It must be taken that Kim Young is authorising the plaintiff to do what she sees fit and accordingly there is difficulty with the qualification which the submissions for the defendant seeks to put on this issue, as to the nature and extent of the work which was performed. 74 T1-40.46-47. 75 T3-107.25-30. 76 Exhibit 1, p 117. 77 Exhibit 1, p 115. -- 13 of 80 -- 14 [22] It is therefore strictly unnecessary to determine whether the budgeted amount was a figure which only the plaintiff had in mind or whether that amount or budget was also communicated to either defendant. However, what is clear is that it was commonly understood that what was being done was of some substance and not just minor repairs, as it is in the context of some photographs being sent as to aspects of the work being undertaken by the plaintiff, that the communications as to not spending too much and the plaintiff’s assurance of adherence to the budget occurs.78 And on 23 January 2016, the plaintiff’s message was: “Plan to move about 18 Feb. Kitchen started today, waiting on new boiler, it will be totally refurbished by the time I move in! Will take more piccies as it progresses. Looking much brighter and cleaner now though. Managed to get most things from B and O with my over 60s discount!” And the recorded response is “Excellent, nice to have it all fresh and new to move in to”.79 Whether there was agreement that the defendants would reimburse the plaintiff for the refurbishment costs? [23] A separate question is as to whether there was agreement that the defendants would reimburse the costs incurred by the plaintiff. The plaintiff presses for a finding that there was such agreement but immediately notes a caveat: that the claim is in restitution not contract.80 [24] In any event, the difficulty in so concluding lies in the looseness of the arrangements, which arrangements need to be understood in the contextual circumstances which include both an understanding that there was a joint plan in respect of the purchase of a property in Australia, at which the plaintiff would eventually come to live, and that, in the meantime, she would reside in the Langford Close property, on a “rent free” basis. [25] Neither was the plaintiff’s evidence in terms that there was any such express agreement. After being taken to the message which she took to be read as “I trust your 78 See Exhibit 1, pp 117-123. 79 Exhibit 1, p 122. 80 Plaintiff’s Written Outline of Submissions, filed 7/5/19, at [32]. -- 14 of 80 -- 15 taste, just remember it’s too sell eventually so please don’t spend too much £££”,81 there were the following questions and answers: “What did you understand when you read that in terms of who was ultimately going to bear the responsibility of the expenses that you were incurring?---Again, I was going to keep it to the minimum of what was required because I knew they didn’t want me to spend a huge amount on it, and the least I could spend the better. But, again, to recoup a good sale. But did that – what, if anything, did – was your understanding as to whether you would be reimbursed or not, having read that message?---I didn’t have any doubt that I wouldn’t be reimbursed. I just went along with it because that’s how we were at the time, and I just knew they were grateful for what I was doing and that I would eventually be reimbursed for it. Did that message have any impact upon that understanding?-- -It just – it just confirmed it, really, that hopefully I would reimbursed – reimbursed. So - - -?---Whether it was from – whether I was from the sale or not, I just gathered that I would be reimbursed. You know, I’d like to think that they were honourable people then and”.82 Subsequently and when she was asked about an email sent by Gary Young on 23 June 2016 and in which he asserted “we actively tried to discourage you from spending money on the place”,83 she said: “I told them what the state of the place was and that I wasn’t happy living in something that wasn’t correct, and that by spending – doing a small budget and spending money on it, it would be beneficial to them. You know, did they want to sell it for 160 or 210? You know, it’s a bit of a no brainer.”84 She was then asked and answered: “What – what if any indications were given by the defendants to you either prior to or during the refurbishments of 4 Langford Close that you wouldn’t be reimbursed for the expenditure that you’d incurred?---It was never – never said that I wouldn’t be reimbursed. Okay?---It was never. They were cautious of how much I was going to spend, obviously, because of their financial situation, and I was aware of that as well, but, as I say, there was a budget and I thought that there was a reasonable budget to spend on something that needed a lot of work.”85 81 Exhibit 1, p 117. 82 T1-42.35 – T1-43.6. 83 Exhibit 1, p 154. 84 T1-47.46 – T1-48.2. 85 T1-48.4-12. -- 15 of 80 -- 16 [26] As is contended for the plaintiff, her stated expectations are to be viewed in the context of a further WhatsApp exchange on 21 March 2016 and in respect of the completion of the renovations. In response to the plaintiff’s observation “a nice result after the hard work though”, Kim Young responds: “I’m curious to hear the valuation, fingers crossed I hope you’ll be pleased after all your hard work”. Then there is a further exchange, respectively between the plaintiff and Kim Young: “Yes I’m curious also. It’s got to be a good result, really looking good now and everything up to date... Hopefully enough for us to put back in to your pot & a little for ours too & let’s pray that when it happens the exchange rate will be kind to us again”.86 When cross-examined as to this last response, Kim Young said: “No. It was to put back into her pot when we eventually came to sell the house and we would be able to give her funds from the sale of the house for her gift that she gave us towards Kiels Mountain. I was always going to give her back the – some of the money from the house when I sold it.”87 [27] The indication in the communication from Kim Young may provide some explanation for the itemized list of refurbishment expenditure which the plaintiff says she brought to Australia but only left for the defendants in the context of her departure and return to the United Kingdom.88 Otherwise, the following exchange is to be noted in the cross-examination of the plaintiff: “What do you say about that?---They probably discouraged me from spending a lot of money on the place but I think I – I told them what the state of the place was and that I wasn’t happy living in something that wasn’t correct, and that by spending – doing a small budget and spending money on it, it would be beneficial to them. You know, did they want to sell it for 160 or 210? You know, it’s a bit of a no brainer. What – what if any indications were given by the defendants to you either prior to or during the refurbishments of 4 Langford Close that you wouldn’t be reimbursed for the expenditure that you’d incurred?---It was never – never said that I wouldn’t be reimbursed. Okay?---It was never. They were cautious of how much I was going to spend, obviously, because of their financial situation, and I was aware of that as well, but, as I say, there was a budget 86 Exhibit 1, p 127. 87 T4-13.26-29. 88 This is referred to in more detail, below at [63]. -- 16 of 80 -- 17 and I thought that there was a reasonable budget to spend on something that needed a lot of work.”89 [28] In this entire context, it is unsurprising that the plaintiff’s claim is not in contract and the evidence does not even sufficiently support there being an implied agreement as to repayment. Further and whilst the evidence as to an intention of Kim Young to make some repayment to the plaintiff upon the sale of the property may be relevant to the further issues to be addressed in respect of the relief sought by the plaintiff, it is to be also noted that, as contended for the defendants, the consideration of those issues is complicated by the overlap of the arrangements in respect of the joint venture in Australia and the inclusion in the arrangements of the benefit to the plaintiff of her accommodation in the Langford Close property in the meantime. In fact, the plaintiff did reside there from the completion of the renovations in February 2015, until the Langford Close property was sold in October 2015. Whether the defendants received a benefit from the refurbishment costs incurred by the plaintiff? [29] There is difficulty with the attempts of the defendants to contend that the renovations were completed, or almost entirely completed, for the benefit of the plaintiff and her residence at the Langford Close property. The evidence is that the defendants had not personally inspected the Langford Close property since 2009.90 Their reliance on reports to them from a tenant and a real estate agent (in about October 2015) which did not identify any issues requiring attention, is correctly pointed out to be no more than evidence that no particular problem had been previously brought to their attention.91 [30] The plaintiff sought to explain that she “only did what was necessary”,92 and in respect of some particular expenditure, as follows: (a) “… a new kitchen put there because when I went to clean and look at the kitchen, the bottom cupboards were rotten and rotting. If I’d 89 T1-47.45 – T1-48.12. 90 T3-25.30-31, per G Young; T4-6.1-3, per K Young. 91 Although there are broader criticisms of, particularly the real estate agent’s report in the plaintiff’s Written Outline of Submissions (at [20]), it is unnecessary to dwell on them to the extent to which they go beyond the weight to be given to such evidence. Some of the criticisms appear to be directed at the admissibility of the evidence, to which no objection was taken and there is no elaboration of what the contention “invoking a Jones v Dunkel inference” might entail. 92 T1-114.46-47. -- 17 of 80 -- 18 have lent on them they would have collapsed because of the state of them. So it was in ill repair and it needed – it required bringing up to standard - - - Which page – which page number - - -?--- - - - to be able to live in it.”;93 (b) “Was there anything wrong with the tiles in the kitchen and the bathroom?---Well, the kitchen tiles were starting to come off because of the damp that was behind the cupboards on all the walls. The upstairs bathroom was just old and tired”;94 (c) in respect of a glass splashback for the cooker she said: “Okay. Why was that - - -?---Which, again, I needed something there to conform to regulations.”95 (d) locks on doors were replaced “Because there was no keys for any of the locks on the existing doors. They were damaged”;96 (e) there was need to replace some malfunctioning lighting;97 and (f) in respect of the replacement of the boiler (which contributed just less than one-third of the claimed costs) when asked about a report that this was working efficiently after an overhaul in September 2014, she was asked and responded: “So there appear to be no problem with the boiler some 18 months before you saw fit to have the boiler ripped out completely?---You’ve just said, “18 months.” In 18 months, a boiler can deteriorate rapidly. This was on its last legs. The emissions from the boiler were not acceptable. It was rusty, and, you know, within 18 months it had deteriorate – after constant – it had deteriorated further.”98 [31] However there is also difficulty as any actual identification or quantification of what the defendants received as benefit from the refurbishment costs or more particularly the refurbishments or renovations to which such costs related. There was concession that there may have been a “marginal benefit” from the work undertaken by the plaintiff,99 and Gary Young explained this in terms of admitting that a profit was made on the sale of the Langford Close property,100 and that: “What did you mean by “marginal benefit”?---That we’d had a valuation of between – that the house could possibly realise 93 T1-36.34-40. 94 T1-37.9-11. 95 T1-37.24-25. 96 T1-37.32-33. 97 T1-118.40 – T1-119.2. 98 T1-114.18-22. 99 T3-40.1-20; Amended Defence, filed 11/7/18, at [11]. 100 T3-40.17-18. -- 18 of 80 -- 19 between 180 and 185,000, and it eventually sold for 200,000.”101 He also testified that: “Now, in hindsight, it – it – didn’t realise, but under normal circumstances, I would expect some renovations to – to realise a better price for a house.”102 And Kim Young testified that: “I assumed that that would be – that she was doing it up to have a nice house to live in and the benefit to us would be that when we sold it we would get some financial benefit from that.”103 And when pressed in cross-examination, she conceded that “what was done was likely to embellish the value of the property”.104 [32] Kim Young conceded in cross-examination that she would have: (a) replaced the kitchen cupboards if she had known they were rotten;105 (b) repaired or replaced the kitchen tiles if she had known they were coming off and she “felt it were necessary for the tenant”;106 and (c) taken action in respect of the boiler if it were not working efficiently and also acknowledged that the plaintiff had informed her of her intention to replace the boiler.107 [33] Whilst the evidence supports what may be a natural inclination towards a conclusion that the refurbishments undertaken by the plaintiff were of some benefit to the defendants,108 as reflected in the realisation of their equity in the Langford Close property, the evidence does not permit of any finding in quantification of that benefit. And it is to be observed that on the plaintiff’s case, there was no meaningful attempt to do so, either in respect of accretion to value of the Langford Close property or as to any benefit in respect of capital gains tax payable upon sale. [34] Rather and in the context of broad and speculative submissions that there was “nothing to quarantine the accretions of value attributable to the renovations from 101 T3-40.7-9. 102 T3-27.40-42. 103 T3-104.30-32. 104 T3-119.40-41. 105 T4-7.12-14. 106 T4-7.20-25. 107 T4-8.27-45; Exhibit 1, p 122. 108 A “marginal benefit” was conceded in the Third Amended Defence, filed with leave 22/02/19, at [11]. -- 19 of 80 -- 20 normal market forces, such as Brexit” and as to difficulty in any reliance on the sale price as indicative of market value because of the plaintiff’s evidence as to the quickness of the sale upon acceptance of an early offer,109 what was sought was simply recovery of the costs of the refurbishments in the context of reference to the following observations: “Ordinarily when there is an incontrovertible benefit provided by the person who seeks restitution against the owner of the property, the benefit is the lesser of the increase in the value or the cost of providing the benefit.”110 As is implicit in that passage, there can be no assumption that the cost will always be less than any increase in value. Whether the plaintiff incurred the refurbishment costs in circumstances where they are otherwise recoverable from the defendants on any other legal basis? [35] As is apparent from the references in the plaintiff’s submissions to Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd,111 her claim for restitution of the refurbishment costs is premised on considerations of unjust enrichment. Those submissions,112 however, are particularly couched in references to observations in the plurality judgment that include: “…. the enquiry undertaken in relation to restitutionary relief in Australia is directed to who should properly bear the loss and why113 …. Restitution claims are not founded upon a wrong done to the payer114 …. More importantly, under Australian law, a mathematical assessment of enduring economic benefit does not determine the availability of restitutionary remedies. The equitable doctrine which protects expectations, with which the notion of ‘detriment’ is associated, is not concerned with loss caused by a wrong or a breach of promise.”115 The submission is then couched in reference to the expectation of the plaintiff as to repayment, her detriment in terms of not being “so repaid regardless of any breach of 109 Plaintiff’s Written Submissions, filed 7/5/19, at [51]; T1-124.13-15. 110 See Sirtes v Pryor [2005] NSWSC 1082, at p 6, citing Knox v Knox, per Young J, unreported, 16/12/1994. 111 (2014) 253 CLR 560. 112 Plaintiff’s Written Submissions, filed 7/5/19, at [48]. 113 (2014) 253 CLR 560, at [78]. 114 Ibid at [83]. 115 Ibid at [84]. -- 20 of 80 -- 21 promise or wrong caused by the non-payment” and that the defendants “should properly bear the loss because of the benefits they received from the plaintiff”.116 [36] Some difficulty with these submission is to be found in understanding that as it is premised on the noted excerpts from the plurality judgment, each excerpt is taken from separate paragraphs in a passage dealing with the concepts of change of position and detrimental reliance, as responses to a claim in restitution. In the same context, it was noted that “the concept of unjust enrichment is not the basis of restitutionary relief in Australian law”.117 Earlier it was observed: “[73] … In David Securities, the submission that unjust enrichment was a definitive legal principle was rejected. That position has since been maintained consistently by this Court. In Friend v Brooker, it was said that the concept of unjust enrichment was not a principle supplying a sufficient premise for direct application in a particular case. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd, it was commented that there was potential for unjust enrichment as a principle to distort equitable doctrine and to generate new fictions. In Roxborough, Gummow J pointed out that: ‘[S]ubstance and dynamism may be restricted by dogma. In turn, the dogma will tend to generate new fictions in order to retain support for its thesis. It also may distort well settled principles in other fields, including those respecting equitable doctrines and remedies, so that they answer the newly mandated order of things. Then various theories will compete, each to deny the others.’ [74] More recently, Equuscorp Pty Ltd v Haxton confirmed that unjust enrichment does not found or reflect any “all-embracing theory of restitutionary rights and remedies”. That case identified unconscionability as relevant and as derived from general equitable notions which find expression in the action for money had and received. As this Court acknowledged in Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation, “contemporary legal principles of restitution or unjust enrichment can be equated with seminal equitable notions of good conscience”. [75] In Australia, the equitable roots of the action for money had and received were early recognised in Campbell v Kitchen & Sons Ltd. There, Barton J observed that recovery “depends largely on the question whether it is equitable for the plaintiff to demand or for the defendant to retain the money”. In National Commercial Banking Corporation of Australia Ltd v Batty, Gibbs CJ said: 116 Plaintiff’s Written Submissions, filed 7/5/19, at [49]. 117 (2014) 253 CLR 560, at [78]. -- 21 of 80 -- 22 ‘Whether the action is based on an implied promise to pay, or on a principle designed to prevent unjust enrichment, the emphasis on justice and equity in both old and modern authority on this subject supports the view that the action will not lie unless the defendant in justice and equity ought to pay the money to the plaintiff.’ [76] This is not to suggest that a subjective evaluation of the justice of the case is either necessary or appropriate. The issues of conscience which fall to be resolved assume a conscience “properly formed and instructed” by established equitable principles and doctrines. As was said in Kakavas v Crown Melbourne Ltd, ‘[t]he conscience spoken of here is a construct of values and standards against which the conduct of ‘suitors’ – not only defendants – is to be judged’.”118 (citations omitted) Earlier again and in the context of comparison with the principles underlying the action for money had and received, it was noted: “In Roxborough v Rothmans of Pall Mall Australia Ltd, Gummow J explained that the “equitable notions” of which Lord Mansfield wrote have been absorbed into the “fabric of the common law” right of action for money had and received. In this regard, it is to be noted that any reference to equitable notions does not invite a balancing of competing equities as between the parties, based on considerations such as fault. The question here is whether it would be inequitable in all the circumstances to require Hills and Bosch to make restitution. The answer to that question is not at large, but neither is it simply a measure of the monetary extent to which the recipient remains enriched by the receipt at the time of demand for repayment.”119 (citation omitted) [37] For the defendants, there is criticism as to the absence of identification of “any proper doctrinal basis for recovery” or “principle or some legal course of reasoning which lays the basis for claiming restitution”.120 In that respect and whilst it is acknowledged that the law of restitution is still evolving, with the concept of unjust enrichment remaining a key consideration, particular reference is made to the judgement of Deane J in Pavey & Matthews Pty Ltd v Paul,121 including what is noted, as follows, by French CJ and Crennan and Kiefel JJ, in Equuscorp Pty Ltd v Haxton:122 “Unjust enrichment was described by Deane J in Pavey & Matthews as: 118 (2014) 253 CLR 560, at [73]-[75]. 119 Ibid at [69]. 120 Defendants’ Written Reply, filed 13/5/19, at [8]. 121 (1987) 162 CLR 221, at 256-257. 122 (2012) 246 CLR 498, at [29]-[30]. -- 22 of 80 -- 23 “a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new or developing category of case.” It is not a “definitive legal principle according to its own terms”. Nor was it such when first propounded in legal scholarship. It was: “an ex post facto explanation of decisions that had already been reached, an organisational category separate from contract. The substance of the law still had to be found in its concrete emanations.” In David Securities Pty Ltd v Commonwealth Bank of Australia, this Court explained the part played by unjust enrichment in a claim for money had and received (in that case for recovery of a payment made under mistake of law). That explanation may be expressed, at a fairly high level of abstraction, as an approach to determining such claims. In summary: • recovery depends upon enrichment of the defendant by reason of one or more recognised classes of “qualifying or vitiating” factors; • the category of case must involve a qualifying or vitiating factor such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated by the law as unjust; • unjust enrichment so identified gives rise to a prima facie obligation to make restitution; • the prima facie liability can be displaced by circumstances which the law recognises would make an order for restitution unjust. Unjust enrichment therefore has a taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another. In that aspect, it does not found or reflect any “all-embracing theory of restitutionary rights and remedies”. It does not, however, exclude the emergence of novel occasions of unjust enrichment supporting claims for restitutionary relief. It has been said of Lord Mansfield’s judgment in Moses v Macferlan that it was his view that “the grounds for obtaining relief in money had and received were not to be considered static and the remedy could be made available in any case in which money had been paid in circumstances where it was unjust for the defendant to retain it”. Nor is the emergence of general principle precluded when “derived from judicial decisions upon particular instances” ...” (citations omitted) -- 23 of 80 -- 24 [38] It is to be further noted that the same judgment in Equuscorp Pty Ltd v Haxton proceeds to note the observations of Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd,123 and also that of Gleeson CJ, Gaudron and Hayne JJ,124 in respect of a question of “conscionability” arising, with the following additional observations: “The question of unconscionability, as his Honour explained, derived from the general equitable notions which found expression in the common law count for money had and received. This Court acknowledged in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation that “contemporary legal principles of restitution or unjust enrichment can be equated with seminal equitable notions of good conscience” albeit the action itself is not for the enforcement of a trust. The reference to conscionability in this context, however, does not mean that whether enrichment is unjust is to be determined by reference to a subjective evaluation of what is fair or unconscionable. As the Court reiterated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd: “recovery rather depends on the existence of a qualifying or vitiating factor falling into some particular category.”125 (citations omitted) [39] It is to be noted that although there is some temporal link and interrelationship with the circumstances relied upon by the plaintiff in pursuit of a declaration of trust in respect of the claim in relation to Kentish Road, this claim as it relates to expenditure in respect of a property in the United Kingdom, is necessarily pursued separately and in restitution. [40] As contended for the defendants and having regard to the principles which have been noted, this claim in restitution has not been established. Quite apart from the absence of identification of any recognised, qualifying or vitiating factor, it is correctly contended for the defendants that the compelling circumstances which would prevent any finding that it would be unjust that the defendants retain any benefit which may have accrued to them from the refurbishments undertaken by the plaintiff, are to be found in understanding that it was at the initiation and suggestion of the plaintiff that: (a) she occupied the Langford Close property in anticipation of her move to Australia; and 123 (2001) 208 CLR 516, at [103]-[104]. 124 Ibid at [23]-[24]. 125 (2012) 246 CLR 498, at [32]. -- 24 of 80 -- 25 (b) she undertake the refurbishments in that context and with an obvious element of facilitation of the comfort of her own residence there. And in those circumstances and notwithstanding the evidence supportive of some extent of necessity for some of the refurbishment and the plaintiff’s awareness of the intended future sale of the property, it was the plaintiff who determined the nature and extent of the works undertaken and who then enjoyed the immediate benefit of them in facilitation of her “rent free” residence at that property until it was sold, subsequently to the breakdown of the arrangements for her move to Australia. [41] Moreover, there is a fundamental difficulty of the absence of cogent evidence of any quantified benefit which has been conferred on the defendants due to the refurbishments, as opposed to substantial reliance upon the cost of performing them. Kentish Road Claim Issues [42] In respect of the Kentish Road Claim, the parties identified the following issues:126 “(a) whether the Payments were a gift to the defendants; or (b) whether the plaintiff made the Payments pursuant to a joint endeavour and, if so, the scope of that joint endeavour; (c) whether the plaintiff was intended to receive a beneficial interest in the property situated at 56 Kentish Road, Kiels Mountain (“Kentish Road”); (d) whether any such relationship or endeavour between the parties has/had broken down, and if so, whether blame is attributable to either party; (e) whether it is unconscionable for the defendants to retain the beneficial interest in the whole of the Property; (f) if it is unconscionable, whether a constructive trust or other equitable remedy ought to be applied with reference to the Payments and the proportion they bear to the overall acquisition cost of the Property; 126 MFI A at [3]. -- 25 of 80 -- 26 (g) if a remedy is imposed involving the sale of the Property, whether the plaintiff is entitled to any portion of any increase in value to the Property since its acquisition.” [43] Alternatively, to these issues:127 “(a) whether the circumstances give rise to the presumption of a resulting trust in favour of the plaintiff to the extent of the Payments; (b) whether the presumption of advancement operates to prevent a resulting trust from arising; (c) whether the presumption of a resulting trust is rebutted.” And finally:128 “5. Whether an estoppel arises or operates against the Plaintiff being granted relief.” Some Principles [44] This formulation of issues reflects some equitable principles which may be discerned from the consideration of cases which involve disputes in the context of contribution by parties to the purchase of property and where that contribution is not reflected wholly or in part, in the legal title to the property. For instance and in respect of the alternative contentions as to a presumption of resulting trust arising, the plaintiff relies upon Calverley v Green,129 in support of the submissions that except where a presumption of advancement arises in negation: “When a donor purchases property in the name of a recipient, equity usually applies a presumption that the person who paid less holds that portion of the property she did not pay for in trust for the other person.”130 [45] Further, the plaintiff in contending that the circumstances do not permit of the “presumption of advancement” applying to negate or prevent a presumption of resulting trust, makes specific reference to the judgement of Edelman J in Anderson v McPherson (No 2).131 In that decision, his Honour (as he then was) noted that in 127 MFI A at [4]. 128 MFI A at [5]. 129 (1984) 155 CLR 242. 130 Plaintiff Amended Outline of Submissions, filed 9/5/19, at [155]. 131 (2012) 8 ASTLR 321; [2012] WASC 19. Broadly, this decision was concerned with circumstances where parents had provided most of the purchase price of a property, the legal being held in half shares as tenants in common with their son and daughter in law (with each tenancy in common being held as joint tenancy) upon the basis of coming to live at the property. -- 26 of 80 -- 27 contrast to evidence of an express trust, a resulting or implied trust arises where the intention as to a trust is proven by presumption, but with the “intention to be discerned” being “an objective manifest intention … not an unexpressed subjective intention”.132 After notation that the presumption of advancement “might be better described as a “presumption of gift”,133 it was observed: “[136] The dominant Australian approach, however, is that of Dixon CJ: the “presumption of advancement” is not a presumption but is simply a circumstance in which the “presumption of resulting trust” does not arise. Thus, in Martin v Martin (1959) 110 CLR 297, the High Court (Dixon CJ, McTiernan, Fullagar and Windeyer JJ) explained that the presumption of resulting trust did not apply where a husband purchased land in the name of his wife: “as she was his wife the fact that he found the purchase money for the land raised no presumption in his favour of a resulting trust as it would or might have done had she been a stranger” (at 303). The court explained that the presumption “is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose” (at 303). [137] Various of the judgments in Calverley v Green also reiterate this point: (at 247) (Gibbs CJ); (at 256) (Mason and Brennan JJ). The judgments of Deane J and Murphy J are the most explicit. Murphy J said that “[t]he presumption of advancement, supposed to be an exception to the presumption of resulting trust, has always been a misuse of the term presumption, and is unnecessary” (at 265). Deane J said this (at 267): “[T]he ‘presumption of advancement’, is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that … there is an “absence of any reason for assuming [presuming] that a trust arose.” [138] The question for resolution in this case, therefore, is whether the “presumption of advancement” applies. If so, this would then have the effect that there is no presumption of a declaration of trust.” [46] Then and after noting that the relationship of parent and son was sufficient for the presumption of advancement to be applicable to the title of the son, it was different in respect of the relationship with the daughter-in-law: “[145] …The question is whether in all the circumstances the relationship between Stephannie and her parents-in-law Bruce 132 Ibid at [96]-[98]. 133 Ibid at [130]. -- 27 of 80 -- 28 and Carol, was of such a similar nature to that of an ordinary parent-child relationship that it could be treated in the same manner as a parent-child relationship for the purpose of the presumption of advancement.” [47] And it was upon a finding that unlike the position in respect of the son, “a presumption of advancement does not apply in relation to [the daughter-in-law]”, that it was determined that no presumption of advancement applied.134 However that was in circumstances where although he was the second defendant, the son made no appearance and the case was noted as being concerned with whether the daughter-in- law “held her rights to the … property on resulting trust for [the parents]”,135 and ultimately a conclusion that “the presumption of resulting trust is rebutted on the facts”.136 [48] For the plaintiff, reference is also made to the following observations in Swettenham v Wild:137 “[35] That is not, however, the end of the matter. The circumstances surrounding a relationship may be used to rebut the presumption of advancement. The learned trial judge found that the presumption of advancement was not rebutted in the circumstances but I am respectfully unable to agree with that conclusion. The presumption or inference of advancement is capable of being rebutted usually by evidence of actual intention not to pass the equitable title leading the court to enforce a resulting trust rather than an express trust. In my view, the inference of advancement may also be displaced where the common intention of the parties, which was consistent with the presumption of advancement, was dependent on a continuing state of affairs or relationship or common endeavour. Where that common endeavour breaks down, the presumption of advancement may no longer apply. The difference can be seen by comparing the gifts of money made to Barry and Alan Swettenham compared to the gift made to Ms Wild of a house in which Mr Swettenham could also reside in a granny flat while enjoying the advantages of living in a family environment and being looked after by his daughter and her family as he aged. The gifts to Barry and Alan were absolute. However the gift to Ms Wild was dependent upon the on-going relationship or joint endeavour. If the joint endeavour failed, then a constructive trust may arise. Counsel for the respondent conceded on the appeal that this was an 134 Ibid at [153]-[154]; cf at [142]. 135 Ibid at [273]. 136 Ibid at [275]. 137 [2005] QCA 264. -- 28 of 80 -- 29 appropriate case to impose a constructive trust. That concession was correctly made.” [49] It is in this context and references also to Calverley v Green,138 that the primary submission for the defendants is for a finding of voluntary gift by the plaintiff.139 [50] On the other hand and in respect of the presumption of advancement and more generally, the main thrust of the contentions for the plaintiff is in respect of the finding of a common intention or joint endeavour, which involved mutual benefit including the right of residence of the plaintiff in the property. That is contended as integrating the steps that the plaintiff would sell property in the United Kingdom, would reside in and renovate the Langford Close Property and provide funds towards the acquisition of a property in Australia for the future cohabitation of the parties.140 [51] The broader claim for the plaintiff is for the declaration of a constructive trust, on the basis of unconscionability in the retention by the defendant of the beneficial interest in Kentish Road, in such circumstances. In that respect, and in specific response to a submission for the defendants that the “realistic interpretation of those arrangements that is most favourable to the plaintiff is that it would have conferred on her an equitable life estate”,141 there is alignment sought to the following application of principle in Swettenham v Wild:142 “[42] In this case, Mr Swettenham intended that Ms Wild would take the legal title to the property. However in return he was to retain not only a right to reside in the granny flat but also receive the support and comfort of living in a family environment with his daughter and her family as he aged. That was the joint endeavour between them and not, as the learned trial judge held, the conferral by Ms Wild on Mr Swettenham of the right to reside in the granny flat for the rest of his life. That joint endeavour between the parties was to be for their mutual benefit but failed through no attributable fault of either party. Mr Swettenham contributed a large proportion of the purchase price. In these circumstances it would be unconscionable for Ms Wild to retain the beneficial interest in the whole of the property subject only to Mr Swettenham’s right to reside in the granny flat.” 138 (1984) 155 CLR 242, at 246-7, 250, 266-268 and 270. See Defendants’ Written Outline of Submissions, filed 8/4/19, at [117]-[119]. 139 Defendants’ Written Outline of Submissions, filed 8/4/19, at [123]. 140 Plaintiff’s Written Outline of Submissions, filed 7/5/19, at [54]. 141 Defendants’ Written Outline of Submissions, filed 8/4/19, at [132]. 142 [2005] QCA 264. -- 29 of 80 -- 30 [52] On the basis of the joint venture which the plaintiff contends as the appropriate characterisation of the arrangements in this case, she seeks remedy in the nature of constructive trust. In the first instance that is on the basis of finding common intention that the plaintiff should have a beneficial or some form of proprietary interest in the property.143 Secondly, there is resort to the recognition of the following principles (in reference to the earlier judgment of Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 620) in Baumgartner v Baumgartner:144 “Deane J. (with whom Mason J. agreed) reached this result by applying the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. His Honour said: "... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude and per Jessel M.R., Lyon v. Tweddell." His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention "to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle": see also at p. 617. In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust.” (citations omitted) [53] As to the application of such principles there is further reference to: 143 (1987) 164 CLR 137, 147-148: As recognised in Shepherd v Doolan [2005] NSWSC 42, at [34]- [40], in reference to cases such as Grant v Edwards [1986] Ch 638; Maharaj v Chand [1986] AC 898 at 907; and Green v Green (1989) 17 NSWLR 343. 144 (1987) 164 CLR 137, at 147-8. -- 30 of 80 -- 31 (a) Waterhouse v Powers:145 “… That clearly suggests that though the court may impose a constructive trust regardless of the actual intention of the parties, the intention of the parties is not an irrelevant consideration. On my reading of the passages in Muschinski and Baumgartner referred to, the court should, in the first instance, consider the position in law and equity given the actual intention of the parties. The conclusion so derived may then be set aside to the extent that enforcing ownership of the property in that way “would be contrary to equitable principle.” That must mean that the position as to ownership reached by considering the relevant conduct, including the agreement between the parties, was a result evidencing “unconscionable conduct” according to general principles of equity. …”; (b) Turner v Dunne:146 “It is clear from the principal judgment in Baumgartner that a trust may be imposed "regardless of actual or presumed agreement or intention"; (c) Brown v Manuel:147 “The appellant argued that a constructive trust may arise only if the conduct of one party has caused the other to expect that he or she will acquire some proprietary interest. No doubt if there were such conduct or if a representation having that effect were made and resiled from unconscionability would, in a case like this, be more readily inferred. But it is not correct that unless there is some such conduct no constructive trust may be inferred. Nor is it necessary, in order to draw such an inference, that the parties must have pooled their resources. Again, such pooling may enable the inference to be more readily drawn. But its absence is not crucial: Hibberson v. Genge (1990) 12 Fam.L.R. 725, 742.”; and (d) Peterson v Hottes148 and Swettenham v Wild,149 as instances of arrangements involving a parent and adult child, including in respect of co-habitation in a property.150 145 [2003] QCA 155, at [23]; Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [145]. 146 [1996] QCA 272, 9-10; Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [145]. 147 [1996] QCA 65, 5; Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [145]. 148 [2012] QCA 292. 149 [2005] QCA 264. 150 Reference to these decisions was made for both the plaintiff and defendants from the outset of the trial; T1-8.26-33. -- 31 of 80 -- 32 [54] As is pointed out for the defendants, typically in cases where such issues arise it is for the Court to discern the contemporaneous intentions of the parties from the evidence and in the absence of any agreement drafted with any eye to the legalities involved. In the first instance, regard is to be had to the evidence of contemporaneous written communications. But there is also the evidence as to relevant oral communications and inevitably, evidence which seeks to characterise the dealings of the parties after the event. Particular reliance is placed on a passage taken from Charles Marshall Pty Ltd v Grimley,151 in support of a submission that leaving aside statements against interest, subsequent statements by the parties may be strictly inadmissible.152 However, it is instructive to note what was said in reference to that earlier passage, in the judgements in Calverley v Green and upon an understanding of the context of the later observations being in respect of issues relating to resulting trusts. In the joint judgement of Mason and Brennan JJ, there is the following: “The next question is whether the equitable presumption applicable when unequal contributors to the purchase price who are not spouses and who take a conveyance to themselves as joint tenants is rebutted or qualified by the circumstances. The equitable presumption can be rebutted or qualified by evidence of a contrary intention common to the contributors of the purchase price. When a common intention is in issue, it is not ordinarily to be found in an uncommunicated state of mind; it is to be inferred from what the parties do or say. It may be that evidence of a sole purchaser's own state of mind at the time of the purchase can be received from him when the court is seeking to ascertain his intention (Martin v. Martin) but in the search for the common intention of two or more purchasers at that time, light will rarely be shed by evidence of their uncommunicated states of mind. Lord Diplock's speech in Gissing v. Gissing contains the principle ordinarily to be applied: "As in so many branches of English law in which legal rights and obligations depend upon the intentions of the parties to a transaction, the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party. On the other hand, he is not bound by any inference which 151 (1956) 95 CLR 353, 364-365, as referred to in Calverley v Green (1984) 155 CLR 242, at 262, 269- 270. 152 Defendants’ Written Outline of Submissions, filed 8/4/19, at [40]. -- 32 of 80 -- 33 the other party draws as to his intention unless that inference is one which can reasonably be drawn from his words or conduct. It is in this sense that in the branch of English law relating to constructive, implied or resulting trusts effect is given to the inferences as to the intentions of parties to a transaction which a reasonable man would draw from their words or conduct and not to any subjective intention or absence of intention which was not made manifest at the time of the transaction itself. It is for the court to determine what those inferences are." The Court of Appeal correctly took the time of the acquisition of the Baulkham Hills property as the material time for determining the beneficial interests of the parties. The evidentiary material from which the court might have drawn an inference as to the intention of the parties included their acts and declarations before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction. Evidence of those acts and declarations were admissible either for or against the party who did the act or made the declaration, but any subsequent declarations would have been admissible only as admissions against interest: Shephard v. Cartwright; Charles Marshall Ply. Ltd. v. Grimsley.”153 And in the judgement of Deane J: “In these circumstances, the starting point for the determination of the extent of the respective beneficial interests of Mr. Calverley and Miss Green in the Baulkham Hills property was a presumption that the property was held upon resulting trust for them according to their respective contributions to the purchase price. That presumption could be rebutted or qualified by admissible evidence which indicated either that Miss Green was intended to have a full half beneficial interest in the property or that Mr. Calverley was intended to have the whole beneficial interest. In Charles Marshall Pty. Ltd. v. Grimsley, it was said in the judgment of the Court (Dixon c.J., McTiernan, Williams, Fullagar and Taylor JJ.): "The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase ... or so immediately thereafter as to constitute a part of the transaction." This passage constitutes a guide to the evidence which will ordinarily be relevant and admissible to confirm or rebut a presumption of resulting trust or a "presumption" of 153 (1984) 155 CLR 242, at 261-262. -- 33 of 80 -- 34 advancement, namely, acts and declarations of the parties before or at the time of the vesting of the legal estate and admissions against interest. The passage should not, however, be accepted as good law to the extent that it purports to lay down that no evidence other than that mentioned will ever be admissible. Regardless of whether the circumstances are such as to bring the case into one of the categories of advancement, evidence of the relationship - both legal and factual - between the parties will always be admissible. More importantly, the subsequent judgment of Dixon C.J., McTiernan, Fullagar and Windeyer JJ. in Martin accepted, as correct, statements of Stuart V.C. and Cussen J. to the effect that, in a case where the subjective intention of a person is relevant, the evidence of that person of his intention at the time of the purchase is admissible notwithstanding that "it must in every case be liable to observations which tend to diminish its weight": see also Devoy v. Devoy; Fowkes v. Pascoe. It is unnecessary to pursue here the question, which was not argued on the appeal, of the relevance of evidence of subjective intention of either party in a case such as the present where the purchase price was provided by two different active parties to the transaction: cf. Gissing v. Gissing. In such a case, the primary question will be whether there was any arrangement between the parties which precluded or modified the trust which would otherwise result from their respective contributions to the purchase price. If that be the only question, evidence of a subjective uncommunicated intention of either party will not be admissible. It is, however, conceivable that, in a case where there was no relevant arrangement between the parties, the critical question may be whether there was an actual intention on the part of the person who contributed the bulk of the purchase price to benefit the other party. In such a case, it is difficult to see why the direct evidence of that person of his actual intention is, as a matter of principle, inadmissible.”154 Accordingly and where, as here, such evidence has been admitted without objection, it will be necessary to consider the relevance of it to the particular issues to be determined and the need to recognise that the more compelling and reliable evidence may be found in the evidence as to the actual conduct of the parties in respect of the transaction in question, or proximate to it. Whether there was a gift or a joint endeavour? [55] The plaintiff contends that the arrangements between the parties was in the nature of a joint endeavour to provide joint accommodation for the future of the parties, rather 154 (1984) 155 CLR 242, at 269. -- 34 of 80 -- 35 than her advances towards the purchase of Kentish Road being by way of simple gift. And it appeared to be common ground that there was an expectation of the plaintiff moving to Australia to live with the defendants, sometime after the anticipated passing of her mother, whose funeral was held on 7 January 2017.155 [56] In evidence, the defendants sought to characterise the advances as a gift156 and pointed to the following considerations in support of such contention: (a) the plaintiff was aware of the defendants’ limited financial means;157 (b) in her email dated 8 September 2015, she had indicated that she had monies (available from the sale of a property) which were invested and that she was “happy to help out” and: “We can have a chat about your mortgage or using the funds towards a purchase of something etc. etc. and long-term plans. I shall have a bit more when I’ve sold the house here and the boat, but have to keep a little bit back to live well on over there of course! Teehee!”158 (c) she agreed that she had placed no conditions on her offer of funds and stated intention to help and that she had required no security nor expressed any requirement for repayment;159 (d) as is the implication of the email dated 8 September 2015, there had been earlier discussion as to the plaintiff “help[ing] out”. Kim Young’s evidence was as to an earlier conversation in which there was an offer to give the defendants money to buy land, on the basis that Gary Young was to receive the money one day anyway.160 Whilst the plaintiff did not recall the details of any such conversation and doubted the proposition of an offer to “give” the money rather than “help”, she did agree to having commented to the effect that Gary Young would receive her money one day;161 155 T4-33.1-2; T1-49.5-20; T2-9.9-10; T2-42.1-20. 156 T2-99.32-40; T3-131.43-47; T3-122.45 – T3-123.5. 157 Exhibit 1, p 96; T1-99.8-11. 158 Exhibit 1, p 97. 159 T2-15.35 – T2-16.10. 160 T3-122.30 – T3-123.12. 161 T2-11.47 – T2-12.2. -- 35 of 80 -- 36 (e) in a text message162 and an email,163 the plaintiff had demonstrated a willingness to provide whatever funds were necessary to purchase another and more expensive property, as was proposed before the Kentish Road purchase; and (f) that as a person reasonably experienced in matters of buying and renovating real property,164 the plaintiff’s explanations as to trusting her son and not wanting to be involved in paperwork, should not be preferred to that of each defendant as to a conversation (which the plaintiff said she did not recall)165 and in which she had expressed, when asked, her wish not to be put on the title and that the property be the defendants.166 [57] Conversely and for the plaintiff there is reliance upon: (a) an understanding, from various communications as to the prospective purchase of various properties, of arrangements so as to also provide for the future accommodation of the plaintiff;167 (b) both defendants admitted that the plaintiff had never said that the payments were a gift and that the word “gift” was never used and neither did the defendants ever say to the plaintiff that they expected such payments to be gifts;168 (c) in a message from Kim Young to the plaintiff, dated 31 October 2015, she had stated: “We’re thinking if you put in your available investment and we get a mortgage.”169 And in a further message dated 18 March 2016,170 sent before the last of the payments, Kim Young referred to the “investment money”; and 162 Exhibit 1, p 112. 163 Exhibit 1, p 101. 164 T1-108.37-39. 165 T2-26.1-18. 166 T2-102.25-36; T3-131.40 – T3-132.10. 167 Eg see: Exhibit 1, p 106. 168 T3-47.5-11; T4-27.23-24; T4-27.30-38; T4-28.1-2. 169 Exhibit 1, p 113. 170 Exhibit 1, p 124. -- 36 of 80 -- 37 (d) further, in an email dated 25 June 2016 and sent after the plaintiff’s return from Australia and in the context of her indication that she would not be coming to Australia, the plaintiff said to Gary Young: “May I remind you Gary that even on the day of moving in you said ‘what do you think Mum, good investment? We’ll double our money in five years, split it and bugger off!’”171 In his evidence, Gary Young accepted saying this when first showing Kentish Road to his mother, as he sought to explain, because of his excitement as to the bargain they had achieved.172 [58] Although and in the context of this comment being identified as playing a part in his mother’s change of mind about coming to settle in Australia, Gary Young sought to explain it away in terms of flippancy. Nevertheless, his reference to the “good investment” is of some significance, as it comes from him, rather than having the potential complication in respect of the earlier messages as to the prospective provision of the plaintiff’s funds, where, for example, she wrote on 8 September 2015: “… it sounds like a dual-living house may be a more expensive option and it would have to be right for us. I guess it depends on how much we can each put into a purchase of course and what finance will be required?… On the finance side of things, you know I am happy to help out and we can chat about this on my return to UK. I have invested the majority of the money from the house sale at the moment to benefit from a monthly income. It is not totally tied into a period of time however, and I have access at any time. We can have a chat about your mortgage or using the funds towards a purchase of something etc. etc. And long term plans.” (emphasis added) The assertion by Gary Young is directed at the position in respect of Kentish Road and has an implication which is consistent with subsequent communications to his mother, after she had indicated that she would not be coming to reside with them in Australia.173 [59] It is necessary to note that some context for these subsequent communications is the understanding that the plaintiff had left with the defendants, upon her leaving 171 Exhibit 1, p 157. 172 T2-108.15-37; T3-69.1-5. 173 See Exhibit 1, p 150. -- 37 of 80 -- 38 Australia, documents which she had brought with her and upon which she had set out her expenditure on the Langford Close property and also her contributions towards the purchase of Kentish Road:174 (a) In an email sent on 31 May 2016, the plaintiff referred to the proposed marketing of the Langford Close property and asked “… Am I right to assume that I shall be financially reimbursed with monies from the sale?” The response was: “Yes, our intention has always been that we would reimburse you from the sale of Langford Close but it obviously won’t cover the whole sum now.”175 (b) In an email sent by him on 23 June 2016,176 Gary Young opens by saying: “Perhaps for as long as I care to remember it always seems to end up about money.” He records his gratitude for past financial assistance and says: “But I believe I’m right in saying it’s always been repaid”. He then says: “In all the lead-up conversations to the purchase of this property, for all of us you never laid down any conditions to sending the money over. ‘Don’t worry about the money, it’ll all be yours one day anyway’ there’s something you’ve repeated numerous times. Even when we were making offers on a $700,000 house you reassured us that there were no issues with the money. The last 18 months have been spent trying to find the ideal location for us all to live. Not just Kim and I but all of us, and we busted a gut to do it. But we found it and we got it, and I thought we would all love it. You know what? This time I almost believed you. I almost believed reassurances to ‘not worry about the money’. I almost believed you when you said ‘I love to see the benefit of what I can give to you while I’m still here’ you really meant it. Then we got an email asking for reassurance from us that you would get your money back. How do you think that felt? In the kitchen when you said you struggled to talk to Kim but wanted to speak about finances I knew what was coming, that’s why I made a point of saying there was no way you could hang this over us. Now look where we are. Its exasperating, there’s so much ambiguity in all the offers you’ve made us but we’ve always trusted that when you’ve said ‘don’t worry 174 Exhibit 1, pp 142-3. 175 Exhibit 1, p 151. 176 Exhibit 1, p 154. -- 38 of 80 -- 39 about it’ that you’ve meant it so how come we always end up worrying? I can’t do it any more mum. You can’t constantly reassure me financially without condition then expect me to be beholden to you. No more ‘don’t worry about that we’ll sort it later…’ or ‘let me help you out, I’d enjoy it..’ We never asked for your money to renovate Langford Close for you to move in to. We actively tried to discourage you from spending money on the place, we were happy to sell it as was, but you wanted to move there so you went ahead and spent £15,000. We never asked for your money to buy a house in Australia. We were content to sell our house in the UK and buy something modest here for the two of us but that all changed with the amazing news that you were going to come and join us. You changed your mind and I think you should work through the consequences of that decision not us. We have always had the best of intentions and have done nothing wrong apart from believing you and we don’t deserve to feel the way we do right now.” Whilst it may be seen that there is a sense of questioning his mother’s motivations in the provision of the funds, the point of the plaintiff’s reliance upon this and subsequent communications, is in the confirmation of the joint endeavour towards a joint residence and an implication of inconsistency with an understanding that the funds were simply provided as a gift. [60] Such implications are also evident in subsequent communications. The plaintiff sent an email dated 30 July 2016, which included the following: “With the recent turn of events here my investment and private pension have taken a nosedive. I do not now have sufficient funds to purchase a reasonably priced property and have money remaining in an investment to top up my pension. The majority of my money is in Australia! I left paperwork with you and you can see from that how much the total outlay is. Yes, I would like it to be reimbursed but am also aware that this cannot happen overnight and without some planning. Before I can answer your question fully therefore, may I be pertinent and respectful in asking (a) if you intend to stay in the house for the rest of your life or are you still considering ‘selling up in 5 years’ time’ and (b) is there a possibility that you could increase your existing mortgage to release money?”177 177 Exhibit 1, pp 164-5. -- 39 of 80 -- 40 [61] Gary Young’s response is telling. He begins his email sent on 10 August 2016:178 “Your investment here is not going away. It will always be here and you will always be welcome, with open arms, to build here if you ever changed your mind; we intend to honour what was given to us unconditionally in order to buy this place and hope that you will too. Your investment was never a loan. You are right in saying that we would like to use some of the proceeds from the sale of 4 LC to carry out further necessary renovations. Here are the calculations we have done.” He then proceeds to calculate one third of the purchase price of Kentish Road at $173,396 and to take that from the sum of $321,750 forwarded by the plaintiff, to achieve a balance of $148,354. He then provides a further calculation in relation to what is described as the “1st renovations balance” in respect of the Langford Close property, and ultimately proposes a “rough figure” of £89,669 to be refunded from the sale of the Langford Close property. He added this:179 “I haven’t included the money you spent on renovations. It was made clear we didn’t want to spend any more on the house but you insisted. You said you wanted to realise as much from the house for us and at the same time make it somewhere you would like to live. It’s hard not to see this as a gift for which we are grateful. The estate agents have been clear with us saying that £224,000 was ambitious and apologised ‘if we were led to believe’ it was worth more than £200,000 and even that was ‘above average for this type of property’. If you take from this the previous renovations, windows, oil tank etc.… We hope to realise something in the region of £110,000 from 4 LC before fees which leaves us a small amount to continue renovations here. We think we’ll be able to avoid paying capital gains tax by submitting invoices for all the work carried out to the house which negates any profit made. I’m sure you will have kept receipts from both renovations and also the windows?” [62] In an email sent by Gary Young on 13 August 2016,180 he further says: “This was an investment in your future but not just yours alone it was an investment to be a part of ours too; and we were over the moon that you would afford us the ability to find somewhere for all of us to live.” In response, the plaintiff pressed for full return of her funds saying: “I do not wish to have an ‘investment’ in Australia and therefore ask for my whole ‘investment’ to be 178 Exhibit 1, p 166. 179 Exhibit 1, p 166. 180 Exhibit 1, pp 168-9. -- 40 of 80 -- 41 returned please.”181 Ultimately and in the context of further communications, including in respect of arranging the sale of the Langford Close property, the plaintiff acknowledged her lack of satisfaction with the return of only £90,000 and by the end of March 2017, had indicated that the matter was in the hands of solicitors. [63] Neither, as is contended for the plaintiff, is a conclusion that the plaintiff intended the provision of the funds as a gift consistent with the fact that the plaintiff sought while she was in Australia to engage in discussions of the lists she had prepared as to her expenditure and advances. There are differences in the evidence as to when and how the plaintiff sought to raise these with the defendants. But it is not in dispute that they were prepared by the plaintiff (in some detail) and left upon her departure and prior to her subsequent indication of her decision not to come to Australia. [64] It is unnecessary to discuss all of the nuance and differences in the evidence of the witnesses. Although it should be noted that particularly given the repeated difficulty of having evidence from Kim Young separated from her desire to intersperse her own perceptions and explanations, there is general cause for reluctance to accept her on any point upon which her evidence was in conflict with or departed from other evidence. Rather and on this topic it is suffice to note that there is some support for the evidence of the plaintiff, that she sought on several occasions to discuss “the finances”.182 Consistently with his notation in the email dated 23 June 2016, Gary Young acknowledged it being raised once in the kitchen.183 Kim Young said the plaintiff raised it with her when they were together in a car, when she was not in a position to discuss the issue and that she sought to revisit it over a meal at the Spirit House restaurant but the others did not want to do it then.184 And, she did confirm that the plaintiff left the schedules prior to departure for the airport.185 [65] Neither is there any implication of a gift rather than joint endeavour to be discerned from evidence to the effect that the plaintiff had indicated an awareness of the passing of her estate to her son, in due course, because of what has been noted as to the intention of making provision for her residence with them prior to that eventuality. As the plaintiff explained, her “priority was to be with them, make a home with them 181 Exhibit 1, p 170. 182 T2-44.15-30. 183 T2-110.29-35. 184 T2-44.43 – T2-45.23. 185 T3-147.45 – T1-148.11; T4-48.1-3. -- 41 of 80 -- 42 in the same accommodation”.186 Similarly and in the same context, there was an adequate explanation by the plaintiff for her not seeking to have any registered or formally noted interest in Kentish Road, in not seeing any need “to be included in paperwork, have my name on anything, when it was going to be a joint venture for us”.187 And that her approach was based in her trust of her son and that as she was maturing in age she didn’t want responsibilities and “just wanted things as easy as possible. I’d had a complicated few years and I just wanted things to be simple and easy”.188 [66] The reality of the evidence is effectively noted in the alternative submission made for the defendants, as to there being a conditional gift, to the extent that: “It cannot be ignored that the funds were advanced against the history of a mutually agreed understanding that the Plaintiff would, at some indeterminate point of time, come to live with the Defendants and that they would take care of her as she aged.”189 It is then contended that, whilst consequences may flow from such a situation, which may be as to forfeiture for non-fulfilment of personal obligation as to performance,190 in the first instance the condition may be characterised only in terms that the plaintiff would “at the time of her choosing, live out her days with the Defendants at Kentish Road” and that any failure of the condition was solely caused by the plaintiff.191 [67] Before turning to consider the issue as to such failure and any attributable blame, it should be noted that the characterisation of the purported condition in terms of expected fulfilment at some “indeterminate” later time, of the plaintiff’s “choosing”, does not appropriately reflect what has been noted as to the effect of the evidence as to the proposal being, from the outset, the provision of funds to assist in the purchase of property, at which the plaintiff could and would be eventually accommodated. That was the basis upon which the plaintiff came to Australia to inspect Kentish Road, before she says that arrangement became untenable to her. To focus upon the expectation that the permanent accommodation of the plaintiff would occur later is to ignore the attachment to the funding of the purchase of Kentish Road, the joint 186 T2-12.8-9. 187 T1-58.33-37. 188 T1-64.16-31. 189 Defendants’ Written Outline of Submissions, filed 8/4/19, at [124]. 190 Reference is made to Muschinski v Dodds (1985) 160 CLR 583, at 605. 191 Defendants’ Written Outline of Submissions, filed 8/4/19, at [126]. -- 42 of 80 -- 43 understanding that the purchase of that property was so as to provide for that eventuality. As was the evidence of Gary Young, he had immediately focussed upon decorating his mother’s room.192 [68] In the circumstances the evidence supports the finding sought by the plaintiff that the arrangement involved a common intention aligned with the joint endeavour to provide for the accommodation of the parties, rather than in the nature of a bare gift by the plaintiff. Has the relationship of the parties broken down and if so, is there attributable blame? [69] As to the circumstances of the breakdown of the relationship of the parties in respect of their joint endeavour, the contentions for the plaintiff included drawing attention to various descriptions given by her as to the effect of her experiences upon her visit to Kentish Road,193 her expressed concern about being “on the same level or outlook sometimes in our opinions and thoughts”,194 and her evidence:195 “I changed my mind because of their behaviour, and I thought if this is the behaviour that I’ve got to put up with, do I really want to be as close as them with this – with these attitudes going on, you know, and --- Okay?--- it – it just wasn’t a pleasant scene.” In overall summary, it is contended that: (a) The subsequent conduct of the defendants towards the plaintiff when she visited Australia in April 2016 was such that the joint endeavour could not continue;196 (b) The defendants’ refusal and failure to discuss finances or address the schedules with the plaintiff, that had been left for them at the home as discussed above, was an obvious indication that the joint endeavour had failed;197 and 192 T2-109.22-25. 193 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [90] and ff. 194 Exhibit 1, p 139. 195 T2-53.25-33. 196 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [84]. 197 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [96]. -- 43 of 80 -- 44 (c) The Court could comfortably hold that the joint endeavour between the parties had irretrievably broken down for which the defendants ought be attributed blame.198 [70] On the other hand the defendants contend that: (a) the plaintiff’s subsequent claims that she was made to feel unwelcome, relying upon the alleged dispute over the construction of the separate dwelling and incidents pleaded in her Amended Reply, are to be treated as later justification for her decision; (b) the defendants have not at any time denied the plaintiff the benefits she would gain from living with them in Australia and have maintained that she was welcome to reside with them; and (c) there is attributable blame for the fact that the agreed intention (that the plaintiff would eventually come to live in Australia with the defendants) broke down. That blame lies with the plaintiff, because she effectively reversed her decision to live in Australia without any credible justification. The defendants did nothing to precipitate this change of mind. [71] Although there was considerable attention in the evidence to the recollections of the parties as to particular interactions and incidents which occurred during the plaintiff’s visit to Kentish Road in April 2016, it is unnecessary to examine that evidence in any detail.199 An essential problem is the extent to which individual recollections were influenced by the particular perceptions of the individual at the time and in the light of what has subsequently transpired. It also needs to be noted that as was pointed out by the defendants and in contrast to the attention they were able to give to the earlier visit of the plaintiff to Australia, this visit was complicated by the demands of their shifting into Kentish Road. [72] However, it is correctly pointed out for the plaintiff that there is some particular difficulty in the acceptance of the evidence of the defendants in seeking to explain away the interactions which occurred during the visit as completely trivial and inconsequential and which, in the case of Kim Young, extended to an assertion that 198 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [109]. 199 Aspects of the evidence are examined in some detail in the written submissions of the parties: Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [78]-[88]; and Defendants’ Written Outline of Submissions, filed 8/4/19, at [60]-[75]. -- 44 of 80 -- 45 she didn’t think that there had been “any times of unpleasantness”200 and “I couldn’t have done any more than I did. I did my best”,201 and in the case of Gary Young, included assertions that there was “nothing out of the ordinary”202 and that he thought “her needs were met”.203 As is contended, such assertions do not sit easily with an email initially prepared by Kim Young and sent to Gary Young before being forwarded, by him to his mother, under cover of his own email dated 17 May 2016 and in which he expressed that he was “upset” and “angry” at the plaintiff’s indication of her decision not to come to Australia. Before referring to some of the content of that email, it is convenient to note the contextual communications from the plaintiff. After the continuity of “WhatsApp” exchanges between the two women during the plaintiff’s journey to the UK, via Corfu and upon her return, on 16 May 2016 Kim Young enquired: “What did Sue & Alex think of “The Estate” in Australia? I imagine you showed them all the photos. I was hoping to see a few of Rome on Facebook too.”204 (emoji omitted) The response was (in part and before reference to the situation of the plaintiff’s mother): “Sue and Alex thought the Estate was beautiful. Too busy walking around Rome to take photos and selfie stick didn’t work! I’ve been doing lots of thinking since returning and I am having second thoughts about retiring to Australia. I have also been approached about a private sale on 4 Langford Close from somebody already living in the village. I will know more about that later and let you know.”205 Relevantly and over the following days, the further exchanges were (with the omission of emojis): (a) from Kim Young, on 17 May 2016: “I’m upset & concerned to think your having second thoughts but think it’s also very normal when planning to move to the other side of the world. What are your second thoughts, Mum?”206 (b) from the plaintiff, on 17 May 2016: “A few reasons for changing mind. Friends, not yet ready to “retire” to other side of world, close proximity 200 T4-57.21-22. 201 T4-56.42-43. 202 T2-109.12-13. 203 T2-109.43. 204 Exhibit 1, p 139. 205 Exhibit 1, p 139. 206 Exhibit 1, p 140; T3-150.8-15. -- 45 of 80 -- 46 of house, just don’t think it will work between us. Felt quite lonely whilst I was there nobody to turn to when things were going wrong etc.”207 (c) from Kim Young on 17 May 2016: “I appreciate & understand some of your thoughts & concerns, the situation this time was challenging but I don’t feel that will be a reflection of the future for us all. We all have an opportunity to learn together.”208 (d) from the plaintiff on 18 May 2016: “I’m not prepared to take that chance – I really do not want anymore challenges or learning curves, all I want is a nice life, possibly with a couple of dogs, without any hassle. After much thought and reflecting I do not feel it is the place for me to be to be happy enough, leaving good friends behind that I’m comfortable with. I consider this the right time for my decision rather than later.”209 (e) from Kim Young, on 18 May 2016: “It’s very upsetting receiving your decision through a whatsapp message, I thought we meant more to you than this. I’ve been very much looking forward over the last 18 months of planning & house hunting with you totally in our future. This is the bad news. Is your decision because of the challenges of moving to Australia or is it us? We are both upset. We thought the plan was for you to come here & have an easy life & we would be part of that life too. We would prefer to talk to you face to face but I fear you don’t want to see us. I’m sorry that we & what we have to offer is not good enough for you & you feel you won’t be happy enough here. I’m not sure what has changed so drastically recently after the last 18mths of planning our lives & our future with you in it. I’m trying to process it all & what it now means for all our futures.”210 (f) from the plaintiff, on 18 May 2016: 207 Exhibit 1, p 140. 208 Exhibit 1, p 140. 209 Exhibit 1, p 140. 210 Exhibit 1, pp 140-141. -- 46 of 80 -- 47 “I can understand your upsets and concerns. Rather than keep using what’s app I will email you and will be happy to talk to you whenever you want to.”211 [73] The plaintiff decided that there was considerable coolness if not tension, in the relationship by the end of her visit. As to her departure, she said: “The atmosphere was awful… … Because nothing was being said, Kim was on – I drove – I – Gary was driving, I was in the passenger seat. Kim was at the back. She was texting. Said she needed to text her friend that she hadn’t texted for a while, so she was there texting. Gary and I were talking for a little while about various things and others, and then there was huge silences, in which time then he put the radio on, and we just continued listening to the radio until we got to Brisbane Airport. We were early, so it was suggested we had something to eat. There was no, you know, “Oh, sorry to see you go”, or anything this. I just wanted to turn around and go and I think they just wanted me to turn around and go as well. I didn’t look back. …. You know, we weren’t sat in a comfy lounge somewhere, discussing the holiday or anything, like all the nice – I mean niceties, or anything like that. It was just a case of, right, we’ll take you there, there’s your case, check through, and of (sic) you go, and that’s exactly how I felt. I got onto the plane and burst into tears.”212 Her evidence in this regard and the tenor of impact the visit had on the plaintiff should be accepted. There is some support for it in the evidence of Kim Young, who agreed that she was in the back seat using her phone to catch up with friends and accepted that her husband may have put the radio on, in the car on the way to the airport: “That’s what you do on long journeys”.213 When asked if she agreed that there had been no discussions as to when the plaintiff might come back, she said: “I don’t recall. I – we – I was upset, because she was going, so I don’t recall whether there were discussions at the airport about her coming back. But it would have been, “We’ll see you soon” or – yeah. I don’t recall specifically when she was going to come back.”214 211 Exhibit 1, p 141. 212 T1-79.8-33. 213 T4-54.8-15. 214 T4-54.25-30. -- 47 of 80 -- 48 [74] Moreover some of the content of Kim Young’s emails, as adopted by being forwarded to the plaintiff by Gary Young on or about 17 May 2016, is indicative of some perception as to the difficulties of which the plaintiff gave evidence: “I feel it would be unfair for all of us to judge the last visit on how our futures together will be & no long term decisions need to be made based on that visit while we were going through a high stress, challenging time in our lives, this I feel is not a reflection of our futures together but like every relationship there are things to be learnt & we haven’t had a close relationship in the sense of living near Mum forever so it’ll be a new relationship for all of us & there will be some teething problems, I think that is to be expected but I also know that we are all capable of ironing them out if we work as a team together with open hearts, courage & honesty. Although all that said & looking at the positives I think we had some fun times too over those three weeks, we might not of got the balance quite right but we sure gave it a go, hopefully no long term damage has been done & in time we can learn more about each others needs from it & put it behind us & even laugh one day about all the “stuff” that happened as we have done in the past. Okay and then maybe the next stepping stone after that would be for Mum to buy a mobile home & live in the spot where her house will go for a couple months so that she can experience living here in her own space with her own independence.”215 The final aspect of that passage is also reflective of another concern raised in the plaintiff’s evidence, in that, as conceded by Gary Young,216 it was only after the plaintiff came to Australia that there was any discussion about the plaintiff building a separate dwelling at Kentish Road. In the context of the amount that had been provided by the plaintiff (which, as demonstrated by the calculation in the submissions for the plaintiff,217 provided for an excess of funds, even allowing for some allocation towards discussed renovations, of at least $40,000), it is understandable that as the plaintiff testified, this caused her some concern: “I thought there would be money left – I thought there would be money in – I thought I was coming to a home and that that money that I’d sent was for a home for me. I didn’t expect to spend anything else on having a home. And the extra money, I didn’t know what was surplus or anything. I was just sent what 215 Exhibit 1, p 146. 216 T3-47.1-3. 217 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [79]. -- 48 of 80 -- 49 I was asked and I just thought that was money in the pot to provide a home.”218 … “… I was just getting confused by the minute thinking, “Why have I sent this money?” I thought this was for a home for me. I thought there was something here existing that I was going to move into. At no time did I thought that I was going to have another outlay to secure a head above – a roof above my head for myself in Australia. I thought that was part of the deal. I thought that was it. And I thought that I’d sent enough money for me to have a home there.”219 Although there had been earlier discussions about the prospect of a purchase which would allow for the construction of an annex,220 the point is that this was not the expectation in respect of Kentish Road. As Gary Young testified, his first priority had been to decorate his mother’s room.221 And in the context of what otherwise occurred during the plaintiff’s visit to Kentish Road, one of her expressed concerns was the “close proximity of the house”.222 [75] It is suffice to observe that irrespective of the late emergence of any detailed pleading on the issue, the plaintiff was able to instance particular occurrences which were supportive of her perceptions of the circumstances which led to her indicating her change of mind in respect of the joint endeavour. Although it may be accepted that some of the individual occurrences may appear more trivial than others, the response of the defendants tended to be directed at their own perspectives as to the difficulties which were encountered and not at any perception of the plaintiff and not at any cumulative or overall effect on her. Further and whilst the defendants acknowledged the occurrence of some instances, it is to be accepted, as is contended for the plaintiff, that the tenor of their evidence was typically to downplay what occurred as providing any basis for the concerns expressed by the plaintiff. For example, Kim Young’s evidence when cross-examined about the contents of her email (which Gary Young forwarded to the plaintiff on or about 17 May 2016) was that she was referring to things which happened on the visit but: “… just yeah – just – yeah, little – little things like Mum saying, you know, that I’d done something else wrong or she – there were little things that happened.”223 218 T2-76.16-21. 219 T1-66.42 – T1-67.1. 220 Eg: Exhibit 1, pp 104, 106. 221 T2-109.24-25. 222 Exhibit 1, p 140. 223 T4-62.17-19. -- 49 of 80 -- 50 In part, the plaintiff instanced occasions when she felt she had been chastised in respect of something she had or had not done.224 And a particular example is that the plaintiff’s evidence included reference not only as to her concern about an incident during a meal shared at a restaurant and where there was some disputation upon Kim Young taking some chips from Gary Young’s plate,225 but also as to her consequential interaction with Kim Young. The point is not in whether Gary Young slapped his wife’s hand, or threw some chips at her as opposed to placing some on her plate, or whether or not Gary Young was more astute to recognition of his mother’s discomfort at the time.226 Rather it is in understanding that as Kim Young acknowledged, the incident was then sufficient to result in an emotional response from her,227 and more importantly, there was a subsequent exchange between the women. The plaintiff described it as follows: “I think the next day, because Kim was upset she told me that she was upset because I hadn’t consoled her, and that’s when I said, “I didn’t think, you know, you needed” – she hadn’t consoled me on other things, so – it wasn’t a case of tit for tat, it was just that I just didn’t feel the whole thing was necessary and that I should be consoling either of them because they were adults and where we were and it shouldn’t have happened in the first place. It was just – it wasn’t the right thing to do.”228 Kim Young’s evidence provided some support for the plaintiff’s perceptions: “… I talked about us being different and that I was a sensitive person and that that meant that if someone was in the room I could see if they were upset and I would be the person to share and go and give them affection and she – and I said we were different, and she wanted me to clarify why we were different and pushed and I said, “We just are, we – but I think that’s a good thing because we bring different things to the table.” But she wanted me to specifically talk about it, something specific that was different about us and I just said, “You know, it’s like last night when we were having dinner, I would find it very difficult to sit there next to somebody that was upset and not even just give them a little bit of comfort on their arm.”229 224 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [84(b)-(e)]. 225 As referenced in the Plaintiff’s Amended Written Submissions, filed 9/5/19, at [84H]. 226 T3-73.28-40; T3-141.41-47. 227 T3-141.37-39. 228 T1-76.46 – T1-77.5. 229 T3-142.30-39. -- 50 of 80 -- 51 [76] As noted in submissions for the defendants,230 it is recognised that courts should usually be slow to attribute such blame to any one party in such a familial context,231 and particularly having regard to the complications of the relationships involved here. There is attempt for the defendants to characterize the plaintiff’s decision not to come to Australia and cohabitate as “a unilateral decision even before the arrangement has been put into effect” and a decision which has “prevented the [defendants] from realizing or honoring the arrangement”. That is not, including for reasons to follow, to be accepted as an appropriate or satisfactory characterization of what has occurred. And neither was any such proposition accepted by the plaintiff: “Mrs Buchan, the simple fact of the matter is that you just changed your mind, you just decided Australia wasn’t for you and that your life overseas was what you really wanted?---Not completely. Not completely. I’ve moved around most of my life. I’m very adaptable. I can adapt to most places. I did like it here the first time I came here, I liked it very much and I could see a future here.”232 With any sense of equivocality being removed by a later exchange: “The fact you’re not living here is by your own choice, isn’t it?---I made a decision after taking into consideration matters about it.”233 That exchange was immediately preceded by the following: “MR FAHL: And I suggest to you that the funds you gave to Mr and Mrs Young were at all times intended to be gifted to them for a home that you could live in with them; is that right?- - No. HIS HONOUR: So you’re suggesting a gift with that condition? MR FAHL: Yes. WITNESS: No. Not correct. MR FAHL: Well, it falls from the facts, your Honour. It falls from the facts. HIS HONOUR: So what do you say your intention was?---My intention was to help out to buy a property for us all to live in happy ever after. The joint enterprise did not work. I do not have anything here. I would like my money refunded for me to live my future with.”234 230 Defendants’ Written Outline of Submissions, filed 8/4/19, at [113]. 231 See McKay v McKay [2008] NSWSC 177, at [16], cited with approval in Peterson v Hottes [2012] QSC 50, at [69] (by Mullins J at first instance). 232 T2-61.5-9. 233 T2-75.6-7. 234 T2-74.31-46. -- 51 of 80 -- 52 [77] It is understandable that the defendants, confronted with the indication from the plaintiff, that she no longer wished to come to Australia to cohabitate, would have been disappointed and concerned to maintain their situation in having obtained a property which sought their needs. However it is notable that from 17 May 2016 and in contrast to the tendency for the earlier written exchanges to be between the women, the direct exchanges were largely then between Gary Young and his mother (except for two instances where the plaintiff has sent an email to Kim Young).235 [78] Once again, much of the detail of that correspondence is only of importance in understanding that there were some unfortunately tense or even unpleasant exchanges. The end result being that, at the latest, by the time that there was communication as to the unacceptability of the calculated repayment to the plaintiff on 1 September 2016, it was clear that the substratum of the joint endeavour no longer existed. Notwithstanding and understandably, it did not then descend to the detail of her experiences in Australia, the plaintiff expressed her position more expansively on 19 May 2016 and in response to the emails of Kim Young, which had been forwarded by Gary Young: “Dear Kym I’m sorry that my thoughts and concerns were conveyed to you via Whatsapp. It was not my intention or chosen way and I would have liked to talk with both of you together. I was holding out until Gary had returned fully from his job away. It seems events have now been overtaken however and I will endeavor to try and explain my feelings. I really have given this a lot of thought Kym and I am just not able to give up what I have here for a life in Australia. It’s not a case of what you have to offer is not good enough for me, it’s absolutely idyllic, but it’s whether or not I want to leave here after coming to terms with events and getting on with my life. I moan occasionally about the weather and surroundings and suchlike but at least I am able to escape from those things and enjoy something better now and again of which I enjoy doing. You and Gary have a perfect life together there and I really did not feel part of it this last time and I’m not even sure if there is a part for me in the future. There were a couple of times when I really wanted us to sit and chat together, but these times seem to be avoided and when I did broach the subject it seemed to be somehow dismissed. Hence I came away feeling that I had been an imposition and therefore did not want this for the 235 See Exhibit 1, pp 144-182. -- 52 of 80 -- 53 future. Yes I know there was a bit of pressure, but having flown all that way over to help and be part of the set up I did not find it very comfortable at all and found myself retreating more and more as I was unable to predict the mood of the day. You did say to me earlier on that my happiness was the most important thing and that if it did not feel right, please do not feel under any obligation. It’s not so much an obligation as a change of mind and I am sure there is an amicable solution so as to allay your concerns for “what it now means for all our futures”. Please do not be too concerned about mine – I will work things out for myself. I do love you both very much and I was looking forward to spending the later years with you but I’m not sure if we are on the same level or outlook sometimes in our opinions and thoughts. I do not deal with confrontation very well, the long silences unnerve me; and I do not want to end up without good friends around me and to be feeling lonely.”236 [79] As the plaintiff said in her evidence, any lingering hope she may have had dissipated with the email sent by Gary Young on 13August 2016,237 and to which she responded on 18 August 2016: “In answer to your last email. I’m just sad that you have been unable to discuss these issues with me before now, having had ample opportunities to do so; and, why on earth did you invite me to live with you if you have been harbouring all these troubling thoughts, some dating back to 1980? (and, you are still happy to welcome me with open arms?). I really wish these could have been aired and dealt with before getting this far.”238 [80] The email from Gary Young to which this responded, provides some insight into an understanding as to how the substratum of this joint endeavor fractured in a humanly understandable way. In that email he seeks to describe how he and his wife had sought, in the context of the plaintiff also reaching out to them, to forge an ongoing relationship which was closer than had been the case in the past. It is notable that in terms of the earlier life experiences which are detailed, this includes that he “went to boarding school when [he] was eleven” and: “… haven’t really lived with my Mum for any considerable length of time since then, or my Dad for that matter. I think it’s fair to say my personality emerged on its own accord without 236 Exhibit 1, p 150. 237 T2-61.28-31; and see Exhibit 1, p 168. 238 Exhibit 1, p 171. -- 53 of 80 -- 54 influence from either and this is possibly why I’ve felt discordant with both of them.”239 And neither had there been any significant prior cohabitation which included Kim Young. The plaintiff had first been introduced to her in 1998 and the defendants married in 2002.240 There had been holidays together in Corfu and it was also common ground that the experience of the prior visit of the plaintiff to Australia, which was commonly described as being very exciting and involving travel and sightseeing and many activities together, provided some impetus towards the joint endeavour in issue. [81] As has been noted, it is appropriate to find that there has been a breakdown in the relationship of the parties, as far as it relates to the substratum of the joint endeavor towards cohabitation in Australia, by 1 September 2016. [82] It need not necessarily be the case that in circumstances of this kind, blame for that must be attributed to any particular party. As is correctly identified for the defendants, such blame does not have to involve “misconduct of moral turpitude” and it may be accepted that it can be found in circumstances where “a party has removed the ‘substratum’ on their own account”.241 The contention for the defendants that this is the applicable conclusion here and that the plaintiff “should not now call upon equity to remedy that in which she was a voluntary participant and that which, without reasonable cause, she abandoned”,242 should not be accepted. As conceded in oral submission, this and related contentions that the plaintiff acted without “sound legitimate reason” in changing her mind and that her truthful reasons were in those first advanced to Kim Young, before the email exchanges and her subsequent evidence, are not to be accepted. As was accepted in oral submissions,243 the effect is to contend for a finding that the plaintiff acted capriciously and these contentions do not properly recognize the dynamics and nuance of the relationships involved in that substratum, nor that the joint endeavour is to be seen as arising more out of optimistic expectation rather than the realities which were disclosed in April 2016. The appropriate conclusion is that it was the plaintiff who then realized and sought, in the first instance more subtly, to disclose that realization. The genesis of the removal of 239 Exhibit 1, p 168. 240 T4-31.47. 241 Defendants’ Written Outline of Submissions, filed 8/4/19, at [134]. 242 Defendants’ Written Outline of Submissions, filed 8/4/19, at [134]. 243 T5-39.16-30. -- 54 of 80 -- 55 the substratum of the joint endeavour was in this exposure of the difficulties in the reality of it and it was finally effected in the entrenchment of that reality by the responses of the defendants. Does a resulting trust arise in the circumstances? [83] The submission for the plaintiff as to a resulting trust arising, is premised upon two considerations: (a) the general principle explained by Gibbs CJ in Calverley v Green244 in the following terms: “Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such – not, e.g., as a loan”; and (b) that there are no considerations militating against such a conclusion such as may be referred to as a “presumption of advancement”, because such considerations do not apply to the position of Kim Young and that any such presumption would be rebutted by the “joint endeavour and common intention of the parties”.245 [84] In the first instance, the submissions for the defendant seek to deny the application of the legal principle and contend that the circumstances do not give rise to the 244 (1984) 155 CLR 242, at 246. 245 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [155]-[161]. -- 55 of 80 -- 56 presumption of resulting trust.246 These submissions seek to ascribe a narrow approach to the application of the general principle which has been noted, by pointing to the evidence as to the plaintiff’s desire to not be directly involved in the legalities of the purchase or be registered on the title of Kentish Road. The contention that she was therefore not to be regarded as a purchaser or involved in the transaction, is not consistent with the generality of the expression of the principle to a situation where the purchase money is provided by more than one person. And notwithstanding that the factual context in Calverley v Green was different, neither is particular support to be found for such restriction in other judgments in that case.247 For instance Deane J observed, at the outset of his judgment: “This appeal turns upon presumptions of equity. The relevant presumptions are those applicable in determining the beneficial ownership of property which is transferred into the legal ownership of persons otherwise than in accordance with their respective contributions to the purchase price.”248 [85] Once, as has been determined here, the monies provided by the plaintiff for the purchase of Kentish Road were not provided by way of simple gift, there is no impediment to finding that the plaintiff provided them in the character of a purchaser of that property. That characterisation is not denied by the reliance on assertions by her that she wanted to help the defendants to purchase the property, because undoubtedly that was what she was doing. There is also need to consider the context of other references in the communications to a proposal as to a joint purchase. In the same gmail dated 8 September 2015, where the plaintiff says she is “happy to help out”, she also says: “I guess it depends on how much we can each put into a purchase of course and what Finance will be required”. 249 Similarly her bringing of the written notations of contributions together with that in respect of her expenditures on the Langford Close property, is consistent with her involvement in provision of a substantial portion of the purchase price. [86] However and in in the further context of the plaintiff’s lack of interest in asserting any desire for overt involvement in the purchase, or being noted on the legal title of the property, there are further considerations which are particularly relevant to and 246 Defendants’ Written Outline of Submissions, filed 8/4/19, at [139]. 247 Cf: (1984) 155 CLR 242, at 258 and 265 -267. 248 Ibid at 265. 249 Eg: Exhibit 1, p 97. -- 56 of 80 -- 57 supportive of the alternative contentions for the defendants, that the presumption of resulting trust is rebutted by the application of the “presumption of advancement” or the plaintiff’s stated and inferred intentions. It may be accepted that, subject to the joint endeavour to also provide for her cohabitation with the defendants, significant motivation for the provision of the funds in question was that Gary Young was her only child and the funds provided in contemplation of his advancement. In the circumstances, where the arrangements were clearly in contemplation of the coincidental bestowing of benefit upon Kim Young, they are to be properly regarded as intended as much for her benefit as that of Gary Young. More particularly, in such circumstances, the fact that the advancement of Kim Young does not involve a recognised relationship such as to give rise to a presumption or prima facie rebuttal of the presumption of resulting trust arising, does not itself mean that the later presumption is not rebutted. [87] As was disclosed in the plaintiff’s evidence, a sense of the accrual to the defendants of the benefit of her contributions, was within her contemplation. Albeit first raised in the context of matters which caused her some concern when last here in Australia, she made reference to a comment by Kim Young as to her estate being left to her siblings. The plaintiff’s evidence was that it was then that she said: “What about what I’ve put into it? Where do I stand with this?” with Kim Young’s response being: “Well, my siblings probably need it more than you.”250 Subsequently, the plaintiff, agreed that the context for this was a discussion where the question arose as to what happened if Gary Young died and the plaintiff expressed concern that the property would go to his father, her ex-husband. Although Gary Young’s evidence was as to lack of recollection of any such conversation,251 Kim Young did confirm the effect of it but placed it as being raised in the context of the plaintiff’s departure and her leaving her notations as to her expenditures and contributions with the defendants. She also confirmed that Gary Young may not have been there.252 [88] It is unnecessary to delve into or determine any of the differences in the evidence as to what was said or as to precisely when there was such an exchange. Essentially what may be seen as implicit in such an exchange only occurring subsequently to the purchase of Kentish Road and notwithstanding, as was the plaintiff’s evidence, her 250 T1-69.12-19. 251 T3-69.20-44. 252 T3-143.29-146.5; T4-46.15-41. -- 57 of 80 -- 58 emerging concerns as to the unsatisfactory basis upon which joint endeavour depended, is an implication that her contributions were understood to have been for the ultimate benefit of the defendants but subject to the interest of the plaintiff in the joint endeavour. This is particularly because of the commonality in the evidence as to the issue being discussed in respect of the passing of the estates of the defendants and the position of the plaintiff as to any such eventuality rather than in respect of evidencing any then present issue as to any entitlement of the plaintiff apart from the joint endeavour. This evidence is supportive of a finding that there was in the arrangements for the plaintiff’s contributions to the purchase of Kentish Road, a common intention of benefitting the situation of the defendants but on the basis of what has been identified as the underlying joint endeavour. [89] In those circumstances, the situation is insufficiently dissimilar to that described in Peterson v Hottes253 as leading to the uncontested findings of the trial judge that payments made in order to “secure a continuing arrangement to reside with the [respondent]” and “in the nature of a conditional gift” or “the existence of an intention on the part of the appellant to make a conditional gift rather than to obtain a proportionate interest in the property”, sufficed to rebut both presumptions of advancement and resulting trust, and suffice to conclude that the present circumstances also warrant the conclusion that no resulting trust has arisen in respect of any interest of the plaintiff in Kentish Road. Was it intended that the plaintiff have a beneficial interest in Kentish Road? [90] In pursuit of a finding that there should be the imposition of a constructive trust upon the basis that this was the common intention of the parties in the acquisition of Kentish Road, reliance is placed upon a summation of the relevant principles in Shepherd v Doolan,254 which includes: “[34] Where a constructive trust is imposed, based upon the parties’ common intention as to the ownership of property upon which the claimant has acted to his or her detriment, the inquiry is as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the 253 [2012] QCA 292, at [4]. 254 [2005] NSWSC 42, at [34]-[40]. -- 58 of 80 -- 59 issue. (Pettitt v Pettitt [1970] AC 777 at 804, 810, 816-817; Gissing v Gissing [1971] AC 886 at 900, 902, 905-909; Allen v Snyder [1977] 2 NSWLR 685 at 690, 698, 701). ….. [36] The intention to be established need not be that the parties have a specific share of the property. It is sufficient that they intend that the claimant should have a beneficial interest or “some form of proprietary interest”. (Green v Green at 355, 356; Grant v Edwards at 654; Parianos v Melluish at [31], [39]). [37] The intention may be established in various ways. There may be an agreement between the parties as to how the property should be held. There may be express statements as to their intention. Their intention may be inferred from their conduct. The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law. (Allen v Snyder at 691; Green v Green at 355). A common intention that a party have a beneficial interest in a property owned by another will not be inferred merely from their joint occupation of property, nor the carrying out of household duties, nor the bringing up of children on the property, nor the doing of repairs, renovations, maintenance, decoration or improvement, nor the provision of furniture. (Pettitt v Pettitt [1970] AC 777 at 805-6, 811, 818, 826; Gissing v Gissing [1971] AC 886 at 900, 910; Burns v Burns [1984] Ch 317 at 326, 328, 342). [38] The intention may be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying off of mortgages, or the payment of expenses which free up funds for that purpose. (Burns v Burns at 328–329; Gissing v Gissing at 900, 902-3, 906-907; Grant v Edwards at 647, 648-9, 653-4, 655; Green v Green at 355). This is a wider enquiry than whether a contribution was made to the purchase money such as to give rise to a presumption of a resulting trust. Whilst both enquiries address the inferences to be drawn as to the parties’ actual intentions, a contribution to the purchase price creates a presumption of beneficial ownership in the proportion which the amount contributed bears to the price. For a “common intention” constructive trust, a contribution, direct or indirect, to the costs of acquisition of the property is a matter from which an intention that the claimant have a beneficial interest in the property might be inferred. There is a difference between a fact from which an inference can be drawn, and a fact from which a rebuttable presumption arises. The significance of the difference will depend upon the strength of the presumption. In the case of the “common intention” constructive trust, there is no presumption that the beneficial interest is in proportion with the contribution to the purchase price.” -- 59 of 80 -- 60 [91] In contrast to the submission for the defendants that “there was a clear intention on the plaintiff’s part to confer beneficial ownership on the defendants”,255 the submission for the plaintiff is that: “It was the common intention of the parties, inferred from their conduct and communications, to pursue the joint endeavour described in detail above. It was commonly intended that the Plaintiff have a beneficial interest in the subject property. Exhibit 1, page 166 is the most obvious manifestation of this intention. The Plaintiff advanced the Payments towards that common intention. Given the Defendants’ reluctance to acknowledge that beneficial interest, the court ought construe a trust in the Plaintiff’s favour.”256 The common intentions respectively referred to in the first and second sentences are not necessarily coexistent or the same effect. Whilst and as has been found the calculations and proposal as to a repayment of any excess above a one third share of the interest in Kentish Road is an act on the part of the defendants properly to be regarded as inconsistent with their contention to the Court that there should be a finding that it was commonly understood that the plaintiff was gifting her advances toward the purchase of Kentish Road as opposed to being commonly intended to be in pursuit of the joint endeavour, it is another matter altogether to find that this amounts to an unequivocal admission as to a common intention that the plaintiff have a beneficial interest in the property. [92] There is an absence of evidence of any explicit discussion to any such effect, at any time. Neither and particularly when this question is viewed in the further context of the plaintiff’s lack of interest in asserting any desire for overt involvement in the purchase, or being noted on the legal title of the property, is there any implication to such effect. Moreover there is a contrary implication in the evidence discussed above,257 as to observations as to the eventuality of the passing of her estate and therefore any interest in Kentish Road, to Gary Young, and also as to the subsequent exchange confirmed by Kim Young as to some discussion as to where the estates of the defendants would pass.258 255 Defendants’ Written Reply, filed 13/5/19, at [33(b)]. 256 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [142]. 257 See at [87] 258 T3-123.1-21. -- 60 of 80 -- 61 [93] Neither would any such finding sit comfortably with the request of the plaintiff upon the breakdown of the joint endeavour for repayment of her money rather than to immediately assert any particular interest in Kentish Road. As has been noted, it was the defendants through Gary Young who calculated such an interest for his mother in the context of justifying the amount which was repaid. The plaintiff’s position was to maintain an objection to that position and demand full repayment.259 Whilst and as found above,260 this calculation by the defendants tells against their contention of any common understanding that the plaintiff intended the provision of the funds as a simple gift, these circumstances surrounding the breakdown of the joint endeavour and the reactions of the parties to that realisation, tend against the reliance which is now sought to be put for the plaintiff upon the effective suggestion that the parties had each been left with a one third share in Kentish Road as an admission of common intention for there to be such a beneficial interest.261 [94] There is in the circumstances, no warrant for concluding that that any remedy in the nature of constructive trust on the basis of any common intention of the parties, is warranted. Is there unconscionability in the defendant’s retention of the entire beneficial interest in Kentish Road? [95] The question as to whether there is unconscionability established in respect of the retention, by the defendants, of the entire beneficial interest in Kentish Road, is to be determined in the particular circumstances. But and as to the nature or content of the concept, each of the parties made reference to the following exposition of Deane J in Commonwealth v Verwayen:262 “The notion of unconscionability is better described than defined (see per Mahoney J.A., Antonovic v. Volker; Taylors Fashions; and, generally, per Cooke P., Nichols v. Jessup). As Lord Scarman pointed out in National Westminster Bank Pic. v. Morgan, definition "is a poor instrument when used to determine whether a transaction is or is not unconscionable: this is a question which depends upon the particular facts of the case". The most that can be said is that "unconscionable" should be understood in the sense of referring to what one party 259 Exhibit 1, pp 170-1, 173, 178. 260 See at [61] 261 Plaintiff’s Amended Written Outline of Submissions, filed 9/5/19, at [142]. 262 (1990) 170 CLR 394, at 440-441. -- 61 of 80 -- 62 "ought not, in conscience, as between [the parties], to be allowed" to do (see Story, Commentaries on Equity Jurisprudence, 2nd Eng. ed. (1892), par. 1219; Thompson v. Palmer). In this as in other areas of equity-related doctrine, conduct which is "unconscionable" will commonly involve the use of or insistence upon legal entitlement to take advantage· of another's special vulnerability or misadventure (cf. Stern v. McArthur) in a way that is unreasonable and oppressive to an extent that affronts ordinary minimum standards of fair dealing. That being so, the question whether conduct is or is not unconscionable in the circumstances of a particular case involves a "real process of consideration and judgment" (cf. Harry v. Kreutziger) in which the ordinary processes of legal reasoning by induction and deduction from settled rules and decided cases are applicable but are likely to be inadequate to exclude an element of value judgment in a borderline case such as the present.” [96] As to the application of the general principles which have been noted above,263 in respect of the availability of the remedy of constructive trust, in circumstances where there has been joint contributions to a failed joint venture or endeavour, to circumstances where the defendants are, as here, resistant to the recognition of any beneficial interest of the plaintiff or entitlement to further repayment, despite the contribution she has made to the acquisition of that property, reference is made to the decisions of the Court of Appeal in Peterson v Hottes264 and Swettenham v Wild.265 And at the outset it may be noted that, albeit that the precise circumstances differ, in each case the result was the recognition of the appropriate application of principle to a declaration of a constructive trust, upon the recognition of the appropriate sense of unconscionability in the retention of the benefit of the parent’s contribution upon the breakdown of a similar arrangement for cohabitation, as a condition of that contribution, and also in the absence of the proof of any common intention as to the respective beneficial interests in the property which has been the subject of a joint venture or endeavour and where the circumstances also did not give rise to any resulting trust. [97] Here the position of the plaintiff is that equity should similarly intervene to eliminate such an unconscionable position. In particular, the plaintiff points to the common intention of the parties to pursue the joint endeavour, which had at its core an 263 See paras [52]-[53], above. 264 [2012] QCA 292. 265 [2005] QCA 264. -- 62 of 80 -- 63 understanding or premise that the plaintiff’s contribution to and assistance in the purchase of Kentish Road, was to provide for a place of co-habitation for the parties, in the further context of also assisting the defendants in finding some desirable accommodation for their needs. As has been found, that underlying premise is no longer tenable and as conceded by the defendants, they are now seeking to retain a property which they would not have been able to acquire themselves at the time of purchase, without the plaintiff’s contribution.266 [98] Further for the plaintiff, there is reliance upon the evidence which establishes the fact and understanding of the parties that she would be providing funds which came, at least partly, from the sale of her own place of residence in the United Kingdom and her living then upon the arrangements made in respect of the Langford Close property, before her eventual move to Australia.267 And also that she is now left in a situation where, as she described in her evidence,268 her only substantial remaining asset is the real property she purchased in Somerset, upon leaving the Langford Close Property (estimated value in November 2018: £175,000), with only a few thousand pounds in savings and income by way of a pension. Although, she did confirm that she no longer owned any property there, she had maintained visits to Corfu three or four times per year. [99] The contentions for the defendants, in part, repeat the characterisation of the joint endeavour as being for the cohabitation of the plaintiff at some future time of her choosing, which has been rejected above as an inadequate and inappropriate reflection of the true import of the basis upon which the plaintiff has provided such substantial sums of money.269 There is also repeated reliance upon the notion rejected above, in considering whether there is attributable fault as to the breakdown of the joint endeavour, in terms of that being simply the plaintiff’s choice as a change of mind. It is further contended that the defendants have simply continued to do as was intended by the parties, in enjoyment of their occupation of Kentish Road. It may be accepted that there is a sense of merit in the contention that this was a primary intention of the plaintiff.270 However, and as pointed out for the plaintiff, the defendants have only been able to do so by the retention of the benefit provided by 266 T3.83.19-21. 267 Exhibit 1, p 97. 268 T 1-94.15 – 1-96.26; Exhibit 4. 269 See para [67], above. 270 Defendants’ Written Reply, filed 13/5/19, at [19(f)]. -- 63 of 80 -- 64 the plaintiff’s remaining contribution to the purchase of Kentish Road and they have done so solely since that time, notwithstanding that the contributions were made on the basis of also providing for the plaintiff’s accommodation there. [100] As to the references made to the decisions in Peterson v Hottes271 and Swettenham v Wild,272 it is correctly noted for the defendants that each simply represents an example of the application of the dictum of Deane J in Muschinski v Dodds,273 as approved in Baumgartner v Baumgartner,274 as to the role of the constructive trust in equity: “Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.” There is also for the defendant, reference to the following further observations of Deane J in Muschinski:275 “In assessing whether or to what extent such an assertion or retention of legal entitlement by Mr Dodds would constitute unconscionable conduct one is not left at large to indulge random notions of what is fair and just as a matter of abstract morality. Notions of what is fair and just are relevant but only in the confined context of determining whether conduct should, by reference to legitimate processes of legal reasoning, be characterised as unconscionable for the purposes of a specific principle of equity whose rationale and operation is to prevent wrongful and undue advantage being taken by one party of a benefit derived at the expense of the other party in the special circumstances at the unforeseen and premature collapse of a joint relationship or endeavour.” [101] Axiomatically each of the decisions in Peterson and Swettenham, whilst relating to domestic relationships involving arrangements for cohabitation, between a parent and an adult child, involve such application of principle to different factual circumstances. And in the first instance the defendant seeks to distinguish those and other cases of a similar kind, as providing any guidance as to the application of the appropriate principles, in that they involve, as is more typical, a breakdown in arrangements after some significant period of cohabitation and when it is demonstrated that the situation 271 [2012] QCA 292. 272 [2005] QCA 264. 273 (1985) 160 CLR 583, at 614. 274 (1987) 164 CLR 137. 275 (1985) 160 CLR 583, at 621. -- 64 of 80 -- 65 has become intolerable. It is in such context that it is submitted that the plaintiff should be precluded herself from the remedy, on the basis of the unconscionability involved in her “initial generosity and then unilateral withdrawal of it”.276 But this is again resort to what has been rejected as attributable blame of the plaintiff for the failure of the joint endeavour. Neither should it be so found in the context of the observations of Deane J to the notion of “premature collapse of a joint relationship or endeavour”, that an early such collapse necessarily makes such a difference. Nor would it appear that such a conclusion flows as a necessarily logical one, particularly as early collapse of such a relationship is likely to mean that the claimant may well have enjoyed less rather than more benefit in the implementation of the endeavour. [102] Rather, the usefulness of each of these Court of Appeal decisions is as to the instruction of approach as to the legitimate processes of legal reasoning towards conclusions as to the unconscionability of assertion of beneficial ownership in the relevant property against the claimant without acknowledgment of the contribution of what may be described as in the nature of a conditional gift.277 [103] As noted, each of these decisions exemplifies the engagement of such processes of legal reasoning despite there being circumstances, as here, which precluded the presumption of resulting trust arising. It is unnecessary to dwell on the criticism in the submissions for the defendants as to the observations in Swettenham (at [35]) as to displacement of any inference of advancement, because such were not made for the purposes of consideration of a resulting trust but rather to support the conclusion, in that case, that there was a gift which “was dependent upon the ongoing relationship or joint endeavour”. It was further observed that: “A constructive trust may arise when the common intention of the parties was based on the expected continuation of the relationship between them and the relationship fails without attributable fault.”278 The judgment of Atkinson J proceeds, after reference to part of the observations of Deane J in Muschinski v Dodds and statements of principle as drawn from Muschinski v Dodds, Baumgartner v Baumgartner and Turner v Dunn (to which reference has already been made) as follows: 276 Defendants’ Written Reply, filed 13/5/19, at [29]. 277 See Peterson v Hottes [2012] QCA 292, at [4]. 278 [2005] QCA 264, at [35]. -- 65 of 80 -- 66 “The imposition of a constructive trust is not confined to the breakdown in relationship between de facto couples. A constructive trust was imposed in Bennett v Horgan in a case very similar on its facts to this. As Bryson J observed in that case: “It is a sadly recurring judicial experience to see that family relationships do deteriorate and become intolerable, and that the persons involved did not foresee that this might happen.” (citations omitted) The critical conclusions were then expressed as follows: “In determining what constitutes unconscionability, one is not left “at large to indulge random notions of what is fair and just as a matter of abstract morality”. In this case, as in Muschinski v Dodds, the conduct which has an unconscionable character is the respondent’s conduct in seeking to assert and retain the benefit of a legal interest in the property without making any allowance for the fact that the appellant contributed a disproportionate amount of the cost of its purchase, where, as here, no arrangement had been made between the parties as to what should happen in the unforeseen circumstances of the collapse of the relationship. There is a need to call in aid the principle of equity applicable to preclude the unconscionable assertion of legal rights in this class of case, just as in Muschinski v Dodds it was held that “equity requires that the rights and obligations of the parties be adjusted to compensate for the disproportion between their contributions to the purchase and improvement of the … property.”279 (citations omitted) [104] That judgment was given with the agreement of McMurdo P, and Williams JA agreed with the declaration formulated by Atkinson J,280 but expressed some separate reasoning to that conclusion, which relevantly included the following: “In the present case the conduct of the respondent in asserting an entitlement to the full legal and beneficial ownership of the home to the exclusion of any interest in the appellant is clearly caught by the reasoning in Muschinski v Dodds and Baumgartner v Baumgartner. Her conduct is clearly unconscionable and in the circumstances equity would intervene and impose a constructive trust. I am also of the view, although it is not necessary in the circumstances to elaborate on the reasoning, that the same conclusion could be reached by relying on the concept of unjust enrichment as it has been developed in a number of recent cases. Here the appellant contributed virtually all of the purchase price of the house in question and that was done against the 279 Ibid at [43]. 280 Ibid at [14]. -- 66 of 80 -- 67 background of an agreed joint endeavour intended to mutually benefit the parties; the respondent was to get the benefit of ownership of the house and the appellant was to get the benefit of a home in which to reside in a family atmosphere and receive comfort and care from the respondent. The formal arrangement between the parties did not make provision for what would happen if that joint endeavour failed.”281 [105] As is explained in Peterson v Hottes, reliance was placed on Swettenham, in the context of the following exposition of the applicable principles: “[29] It was submitted that the primary judge did not consider whether a constructive trust should be imposed and rejected its imposition on the basis that it was disproportionate to the requirements of conscientious behaviour. It was submitted that if the constructive trust had been considered such a trust ‘based on the appellant’s proportionate contribution to the acquisition of the property’ would have been imposed. It was further submitted that the primary judge failed to appreciate that constructive trusts are imposed, traditionally, irrespective of the parties’’ intentions. Reliance was placed on Swettenham v Wild, in which an appellant who had contributed funds pursuant to a joint endeavour to secure a right to reside on a property was given the benefit of a constructive trust based on the parties’ respective contributions to the acquisition of the property after the endeavour failed. [30] The critical findings of the primary judge for present purposes are as follows: ‘[67] It is relevant that, apart from the payment for the security screens for the property, the [appellant] did not make any financial contribution towards the expenses of the property that were expenses associated with ownership while she resided there which was consistent with her willingness to support the [respondent’s] sole ownership of the property. [68] In view of what I have found to be the nature of the joint endeavour between the [appellant] and the [respondent] that proceeded on the basis that ownership of the property was for the [respondent] alone, it is only unconscionable for the [respondent] to assert her beneficial ownership in the property against the appellant] to the extent of refusing to acknowledge that the payment that was made by the [appellant] to assist in the purchase was a conditional gift where the condition subsequently failed.’ 281 Ibid at [11]-[12]. -- 67 of 80 -- 68 [31] The primary judge appeared to consider that the fact that the appellant was content to let the respondent have sole title to the property strongly militated against the imposition of a constructive trust which gave the appellant a beneficial interest in the property. She also, with respect, appears to have failed to have regard to the principle that a constructive trust may be imposed ‘… regardless of actual or presumed agreement or intention “to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle”’. Immediately before that quotation, from the reasons of Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner, speaking of the application of a 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, quoted with approval the following statement of Deane J in Muschinski v Dodds: ‘... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.’ [32] I hasten to add that I do not mean to convey that the intentions or agreement of the parties as to how property is to be held are irrelevant to the question of whether the respondent’s conduct was unconscionable. [33] The following observations of Deane J are also pertinent: ‘… the relevant principle operates upon legal entitlement. It is the assertion by Mr Dodds of his legal entitlement in the unforeseen circumstances which arose on the collapse of their relationship and planned venture which lies at the heart of the characterization of his conduct as unconscionable. Indeed, it is the very absence of any provision for legal defeasance or other specific and effective legal device to meet the particular circumstances which gives rise to the need to call in aid the principle of equity applicable to preclude the unconscionable assertion of legal rights in the particular class of case.’ [34] In considering the order which ought be made, the primary judge was obliged to consider all relevant circumstances. One highly relevant circumstance was the purpose for which, to the knowledge of the respondent, the appellant made her financial contribution to the purchase of the property. There was more than one such purpose. The -- 68 of 80 -- 69 appellant no doubt intended to assist the respondent but, at the same time, she had in mind securing her future accommodation by obtaining a congenial environment in close proximity to her daughter and grandson in which to see out her remaining years. The arrangement also secured the respondent’s future accommodation.”282 [106] As to the application of the general principles which have been noted as to the imposition of a constructive trust upon the basis of unconscionable retention of the beneficial interest in property, the plaintiff particularly and relevantly relies upon considerations that: (a) The joint endeavour being characterised by: (i) the plaintiff’s ability and willingness to cohabit with the defendants as the basis of her forwarding the payments;283 (ii) there being no suggestion that the payments would not cover her accommodation;284 (iii) the circumstance that in order for the plaintiff to provide the payments to assist with the purchase of a property to accommodate the parties, she would be selling her own property in the UK;285 (iv) the payments being pooled with the monies the defendants could borrow from a bank to purchase the Kentish Road property;286 (v) the indication that when the Langford Close property was sold, the defendants would provide the plaintiff with the entire balance of its proceeds;287 and (vi) the final cog of the joint endeavour being that the plaintiff would move into the Langford Close property and renovate it in anticipation of its sale;288 282 [2012] QCA 292 at [29]-[34], per Muir JA, with whom Gotterson JA and Henry J agreed. 283 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(a)(iv)]. 284 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(a)(v)]. 285 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(b)]. 286 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, 19 at [54(c)]. 287 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(d)]. 288 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [54(e)]. -- 69 of 80 -- 70 (b) It would only be fair, just and equitable for the defendants to pay the plaintiff back the monies she paid towards the Kentish Road property. The defendants would simply be restored to their pre-contract position after enjoying almost three years of basically sole occupation in that house289 with a minimal mortgage in place, in a property that they admitted they could not originally afford themselves;290 (c) The Court could comfortably find that it would be unconscionable for the defendants not to repay the funds transferred to them pursuant to the joint endeavour;291 (d) It was the common intention of the parties, inferred from their conduct and communications, to pursue the joint endeavour described in detail above. It was commonly intended that the plaintiff have a beneficial interest in the subject property. Exhibit 1, page 166 is the most obvious manifestation of this intention. The plaintiff advanced the payments towards that common intention. Given the defendants’ reluctance to acknowledge that beneficial interest, the court ought construe a trust in the plaintiff’s favour;292 (e) It is the plaintiff’s position that the Kentish Road property should be sold pursuant to the constructive trust. Equity’s intervention should be to the extent that unconscionability is eliminated.293 Accordingly, “a result of equality can be displaced “if one party is able to show that the contributions, both financial and non-financial to that asset should not be regarded as equal”.294 It also follows that simply placing an equitable charge or lien in favour of the plaintiff will not eliminate unconscionability given the untenable state of cohabitation. Equitable relief “may be moulded to recognize practical considerations such as the need for a clean break”.295 289 T3-83.45-46. 290 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [133]. 291 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [136]. 292 Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [142]. 293 Crafter and Crafter [2011] FamCA 122, at 263. 294 Crafter and Crafter [2011] FamCA 122, at 263, quoting Campbell J in West v. Mead [2003] NSWSC 161. 295 Pascoe v. Turner [1979] 1 WLR 431, at 438-9; Plaintiff’s Amended Outline of Submissions, filed 9/5/19, at [152]. -- 70 of 80 -- 71 [107] The defendants contend that this is not a case which calls for a declaration of a constructive trust, in that there is nothing unconscionable about the defendants retaining their legal and beneficial title to Kentish Road, given both the circumstances in which Kentish Road was acquired and the fact that the defendants have proceeded to occupy and use Kentish Road as intended by the parties. Once again particular attention is drawn to contentions that:296 (a) “the plaintiff voluntarily gifted funds to the defendants; (b) those funds were paid toward the acquisition of 56 Kentish Road, Kiels Mountain (Kentish Road) by both defendants; (c) the plaintiff at all times intended that the defendants received full beneficial title to Kentish Road; (d) it was agreed that the plaintiff would reside at Kentish Road, after her own mother’s death, at the timing of her choice; (e) the plaintiff did not at any time take up residence at Kentish Road, but after a short holiday at Kentish Road, changed her mind about her initial decision to move to Australia.” [108] Quite apart from what has already been found as to the thrust of those contentions not being adequately reflective of the true import and effect of the joint endeavour undertaken by the parties as to the purchase of Kentish Road, the identification and application of relevant equitable principle in the Swettenham and Peterson decisions, is particularly instructive. Just as was influential in those decisions, the plaintiff’s claim to a conclusion of unconscionability lies in the understanding of the defendants’ position being as to complete retention of their legal interest and denial of any beneficial interest of the plaintiff in Kentish Road, notwithstanding the unforeseen circumstances of the collapse of their relationship involving the arrangement for their cohabitation into the future. Similarly to the circumstances as found in Peterson,297 such conclusion here is warranted notwithstanding that there may also be discerned to have been a concurrent purpose in the arrangements of assisting the circumstances of the defendants. Just as in those cases, an essential component of the joint endeavour 296 Defendants’ Written Outline of Submissions, filed 8/4/19, at [7]. 297 [2012] QCA 292, at [34]. -- 71 of 80 -- 72 which was undertaken as to the purchase of Kentish Road, is the joint understanding that there was to be provision for the plaintiff’s cohabitation there with the defendants. [109] It is clear that not only did the parties not anticipate the failure of the joint endeavour but neither had they determined how their respective rights were to be determined upon that event. Such a situation invites reference to the following observations of Deane J in Muschinski v Dodds:298 “In circumstances where the parties neither foresaw nor attempted to provide for the double contingency of the premature collapse of both their personal relationship and their commercial venture, it is simply not to the point to say that the parties had framed that overall arrangement without attaching any condition or providing any safeguard specifically to meet the occurrence of that double contingency. As has been seen, the relevant principle operates upon legal entitlement. It is the assertion by Mr Dodds of his legal entitlement in the unforeseen circumstances which arose on the collapse of their relationship and planned venture which lies at the heart of the characterisation of his conduct as unconscionable. Indeed, it is the very absence of any provision for legal defeasance or other specific and effective legal device to meet the particular circumstances which gives rise to the need to call in aid the principle of equity applicable to preclude the unconscionable assertion of legal rights in the particular class of case.” [110] In the circumstances, it should be concluded that it is unconscionable for the defendants to insist on their position as the legal owners of Kentish Road without recognition of any equity of the plaintiff, having regard to her contribution to the purchase of that property. Does an estoppel arise or operate against the plaintiff having relief? [111] Finally, the defendants contend that the plaintiff should be estopped from claiming that she has a beneficial interest in Kentish Road.299 Reference is made to Thompson v Palmer,300 Grundt v Great Boulder Pty Gold Mines Ltd,301 and Legione v Hately,302 in support of the application of a principle premised on not permitting “an unjust departure by a party from an assumption of fact which he has caused the other party to adopt or accept for the purpose of their legal relations”, in the sense of some identified detriment to the other party should departure from the assumption be allowed.303 298 (1985) 160 CLR 583, at 622. 299 Defendants’ Written Outline of Submissions, filed 8/4/19, at [146]. 300 (1933) 49 CLR 507, at 547. 301 (1937) 59 CLR 641, at 674-6. 302 (1983) 152 CLR 406, at 430. 303 Defendants’ Written Outline of Submissions, filed 8/4/19, at [148]. -- 72 of 80 -- 73 [112] Reference is also made to particular judgments in Commonwealth v Verwayen,304 and Walton Stores v Maher,305 in support of a submission that the expressed principles involve “consideration of whether departure from the state of affairs assumed by a party would be unconscionable”.306 [113] The assumptions upon which it is contended that the plaintiff caused the defendants to act are identified as:307 “(a) that the funds given them by her were to be provided and were provided unconditionally. In other words, the Plaintiff, prior to or at the time of providing the money never expressed the position that the money was provided on the basis that it would have to be paid back if the Plaintiff decided not to come to Australia; (b) that she required no beneficial entitlement to the property that would be purchased; (c) whatever became the case, the property purchased would be the defendants’ property to own and enjoy; (d) that she was committed to residing with the Defendants at the chosen property; (e) she would come to Australia to live with the Defendants at a time of her choosing after the death of her own mother”. [114] The detriment which would be suffered by the defendants if there were allowance of departure from those assumptions is identified in terms that they:308 “(a) sought out and identified a suitable property to meet their needs and the needs of the Plaintiff; (b) negotiated the purchase of Kentish Road; (c) applied for and obtained finance approval toward the purchase of Kentish Road; (d) incurred debt to assist in financing the purchase of Kentish Road; (e) vacated their former home and moved to Kentish Road; (f) expended money and personal effort to the improvement and upkeep of Kentish Road.” [115] As is contended for the plaintiff, in the first instance the defendants seek to rely on their interpretation of the plaintiff’s representations by placing emphasis upon the provision of the funds by way of gift with the future anticipation of cohabitation, 304 (1990) 170 CLR 394, at 412-3, 443-6. 305 (1988) 164 CLR 387, at 428-9. 306 Defendants Supplementary Written Submissions, dated 7/6/19, at [31]-[34]. 307 Defendants’ Written Outline of Submissions, filed 8/4/19, at [149]. 308 Defendants’ Written Outline of Submissions, filed 8/4/19, at [150]. -- 73 of 80 -- 74 rather than as encompassing the joint endeavour involving, as a then present state of affairs, provision for that cohabitation. It is also correctly pointed out that there is an absence of any precise evidence as to any substantial improvement of Kentish Road.309 And more particularly, there is no relevant detriment which is identified, as opposed to the defendants being denied the retention of the benefit of the plaintiff’s remaining contribution to Kentish Road. [116] It may also be observed that there is some conceptual difficulty in the attempt to contend for a finding of estoppel, in that the matters relied upon by the defendants as the considerations upon which an estoppel might be found, largely involve the considerations which influenced the conclusion as to whether a resulting trust arose.310 And it is difficult to contemplate how such an estoppel could operate to defeat a finding that there is such unconscionability in the retention of the benefit provided by the plaintiff as to warrant the imposition of a constructive trust. [117] Accordingly, there is no basis for any estoppel of a finding that the plaintiff has a beneficial interest in respect of her remaining contribution to the purchase of Kentish Road. Remedy [118] As is noted in both Swettenham v Wild,311 and Peterson v Hottes,312 it is usually appropriate in circumstances where there is a finding of unconscionability in the retention of the benefit derived from such a failed joint endeavour, for there to be relief in the form of declaration of constructive trust as to the respective shares of the beneficial interest of the parties in the property. Similarly to the situation noted in Peterson, here there is no valuation evidence, but as there noted, “it would be appropriate for the co-venturers to share in any accretion in value or to bear any losses in proportion to their respective contributions.” Such a declaration was made in Peterson. 309 As discussed at paragraph [122], below. 310 As is conceded for the defendants (Supplementary Written Submissions, dated 7/6/19, at [25]-[30]) there may be difficulty in finding an estoppel if the circumstances give rise to a resulting trust and the reference to the decision in Macquarie Bank Ltd v Lin [2005] QSC 221 is not of assistance, in so far as the discussion relates to the position of a third party. 311 [2005] QCA 264, at [45]. 312 [2012] QCA 292, at [37]. -- 74 of 80 -- 75 [119] There is little by way of common ground in the submissions of the parties as to whether and how any such considerations should be reflected by relief for the plaintiff, or as to any consequential orders. [120] However it can be noted that there is common ground in the evidence that: (a) The total amount made available, in Australia, to facilitate the purchase of Kentish Road was $321,000.01;313 and (b) The total purchase price of Kentish Road, including stamp duty, fees and charges, was $521,932.33, of which: (i) $250,518.60, was funded by loan obtained by the defendants and secured by registered mortgage; and (ii) the balance of $271,413.73, was met from the funds provided by the plaintiff. It may also be noted that the plaintiff’s position (as it is understood, not put in contest by the defendants) is that the repayment of $144,226.11(£90,000.00) is to be taken as repayment of the excess of the funds advanced by the plaintiff and in part reduction of her contribution to the purchase of Kentish Road, leaving a contribution of $177,521.90, or very close to 34% of the total purchase price. [121] Otherwise a more orthodox approach is to look to the actual division of contribution to the purchase and to then allow for adjustments, having regard to any disproportion as to subsequent receipts and contributions to improvements and upkeep of the property.314 That would mean attributing to the plaintiff, as a starting point, a share of approximately 52% of Kentish Road. It would then be necessary to allow for appropriate adjustments including for subsequent contributions and receipts, as was done in Peterson v Hottes.315 [122] In the first instance it would be necessary to allow for the repayment made to the plaintiff. Allowance would also be required in respect of subsequent contributions to improvements and maintenance by the defendants. Notwithstanding it also being an objective of the joint venture, it may be necessary to allow some offset in respect of the benefit to the defendants of uninterrupted occupation since purchase. However and apart from an understanding that the defendants have been responsible for the 313 Exhibit 1, pp 48-50. 314 Eg: see Peterson v Hottes [2012] QCA 292, at [42]-[44]. 315 Ibid at [43]. -- 75 of 80 -- 76 ongoing maintenance of the property, the evidence as to any improvements (including by the devotion of Gary Young’s skills and efforts) was imprecise and unsupported by any other evidence, including as to valuation.316 [123] An approach for the plaintiff was to rely on the concession that any expenditure upon improvements had come from the funds provided by the plaintiff and which were not used in the purchase.317 However that excess was effectively repaid, so that the overall effect is that any such improvements might then be regarded as effectively provided by the defendants from the realized equity in the Langford Close property. [124] Further complication of these circumstances is the evidence that: (a) the plaintiff’s stated position in the immediate aftermath of the breakdown of the joint endeavour was to seek the full repayment of her transferred funds;318 and (b) in her testimony to the Court, this desire to have her money refunded was restated as her wish.319 [125] To an extent, such position may be regarded as consistent with an intention expressed by Kim Young in a message dated 31 October 2015, and albeit that it was in respect of the potential purchase of a more expensive property at 16 Kentish Road: “We had a meeting last week with the financial people & I’ve given them all the paper work so it’s a case of waiting but that was originally looking at a mortgage of $300 for 16 Kentish road but we’re thinking if you put in your available investment & we get a mortgage for 225-250k when we sell Langford close we give you that money. I’ll call the mortgage people in Monday & say we want to reduce the amount we need.”320 [126] The intention stated in that message pre-dated a further message dated 3 November 2015, from Kim Young, assuring the plaintiff that she had to be sure as to what she wanted to do and that there was no difficulty if she got “cold feet” and wanted to change her mind. And both messages pre-dated the arrangements actually put in place in respect of the purchase of Kentish Road. Whilst, as noted, these exchanges were in 316 T3-78.28 – T3-79. 36, T3-87.30 – T3-93.13 and T4-42.19-22. 317 T3-96.20-43. 318 Exhibit 1, pp 170-173, 178. 319 T 2-74.27. 320 Exhibit 1, p 113. -- 76 of 80 -- 77 direct reference to a different proposed purchase, an intention of repayment was later confirmed by the defendants in respect of the breakdown of the joint endeavour in relation to Kentish Road: “Yes, our intention has always been that we would reimburse you from the sale of Langford Close but it obviously won’t cover the whole sum now.”321 As would appear from an understanding of the amounts involved (and even allowing for the plaintiff’s contention that the Langford Close property was sold too quickly and cheaply) there was never going to be enough to completely repay the plaintiff, so that there would have remained a substantial contribution by her to what has been found to be the joint endeavour of the parties. [127] Otherwise, it is to be noted that the submissions for the plaintiff press concerns that: (a) she have orders reflective of an appropriate share of any accretion in value of Kentish Road, although but in the absence of valuation evidence, the position is that she might be expected to share any diminution as much as accretion in value; and (b) that orders be made to effect a statutory trust for sale, so as to avoid further delay in realising the repayment of her share. [128] For the defendants there was resistance to any order as to statutory trust for sale, on the basis that a declaration as to a beneficial interest (such as by trust) would be sufficient to protect the plaintiff’s position, with the defendants having the opportunity to pay out her interest in Kentish Road, so as to maintain the prospect of retaining the property, as had been envisaged when embarking on the joint venture.322 [129] As is pointed out for the defendants,323 the forms of relief granted in other cases do not follow a strict formula and may be tailored to particular circumstances, to do justice between the parties. As was noted, in Peterson v Hottes,324 reliance was there placed upon the following observations in Bathurst City Council v PWC Properties Pty Ltd:325 321 Exhibit 1, p 151. 322 Defendants Supplementary Written Outline, filed 7/6/19, at [7]. 323 Defendants Supplementary Written Outline, filed 7/6/19, at [6]. 324 [2012] QCA 292, at [40]. 325 (1998) 195 CLR 566, at [42]. -- 77 of 80 -- 78 “ … before the court imposes a constructive trust as a remedy, it should first decide whether, having regard to the issues in the litigation, there are other means available to quell the controversy. An equitable remedy which falls short of the imposition of a trust may assist in avoiding a result whereby the plaintiff gains a beneficial proprietary interest which gives an unfair priority over other equally deserving creditors of the defendant.” (citations omitted) And for the plaintiff reference is made to Pain v Pain & Ors,326 in support of the recognition of the extent of flexibility which may be available in granting relief in order to satisfy equity in particular circumstances. [130] Like the position noted in Peterson, it would not immediately appear likely that a declaration of trust in favour of the plaintiff would prejudice the position of the registered mortgagee in respect of the defendants’ loan.327 Although, it is an aspect of the concerns expressed by the plaintiff to have an order limiting the ability of the defendants to redraw on their loan. [131] In Peterson,328 it was concluded that “the money order favoured by the respondent is insufficient to address the respondent’s unconscionability” and a declaration as to constructive trust was made, amongst other orders. However and whilst that was in respect of a 25% beneficial interest in the property, there had also been a period of co-habitation of about six years.329 [132] In this instance, it should be accepted that in the circumstances of breakdown of the joint endeavour almost at inception, the influence of the concomitant aim of that endeavour to assist the defendants’ acquisition of Kentish Road, the repayment already made to the plaintiff and the plaintiff’s stated desire to be repaid her contribution, provides an appropriate basis for concluding that the unconscionability of the defendants’ position may be adequately addressed by order for the repayment of the remaining contribution of the plaintiff to the purchase of Kentish Road, together with an allowance for interest as some compensation for the present value of that contribution and the period during which the plaintiff has not had the benefit of those funds, and provided that there is some appropriate security for the plaintiff’s position and if necessary, to enable the sale of the property to realise that security. 326 [2006] QSC 335, at [84]. 327 [2012] QCA 292, at [38]. 328 Ibid at [41]. 329 Ibid at [1]. -- 78 of 80 -- 79 Accordingly, that approach would allow for the recognition of the plaintiff’s equity in Kentish Road by way of reference to a specific sum rather than as a percentage of the value. [133] It should otherwise be accepted, as pressed for the defendants, that it is premature to make orders for the appointment of statutory trustees for sale and preferable to allow the parties an opportunity to resolve the repayments which have now been determined to be required. Conclusion [134] Accordingly and in order to reflect the findings and conclusions reached, there will be orders as to the repayments which are to be made, together with interest. There is nothing in the evidence or submissions to assist as to awarding interest, which as far as relates to the contribution to the purchase of Kentish Road may be awarded in equity, as much as pursuant to s 58 of the Civil Proceedings Act 2011.330 Drawing assistance as to approach from Practice Direction No. 6 of 2013 at [3], and upon common understanding of the general level of cash rates in recent years, a rate of 4.5% will be adopted and applied to each repayment for a period of four years, which is approximate to a point at which the plaintiff had demanded the repayment of her contribution to Kentish Road. Although the sum relating to the Initial Expenses Claim had been expended at a substantially earlier time and there was an acknowledgement by the defendants of intention to repay as early as 1 April 2015,331 that was also in the context of an eventual sale of the Langford Close property, which then became complicated by the arrangements as to the joint endeavour and as to the plaintiff’s residence at the Langford Close property. [135] It will be appropriate to grant liberty for the parties to apply to facilitate any necessity for further application for the appointment of statutory trustees for sale.332 And it will be necessary to allow for submissions as to costs. 330 See Hungerfords v Walker (1989) 171 CLR 125, at 148; cf: Herrod v Johnston [2013] 2 Qd R 102, at [32]-[33]. 331 Exhibit 1, p 93. 332 It was noted in the Reply Submissions of the Plaintiff, dated 14/6/19, at [6], that consents to act had been filed. But this is noted to have only occurred on 13/6/20 and in consequence of it being pointed out in the Supplementary Outline of the Defendants, dated 7/6/19, that no such consents had been filed. -- 79 of 80 -- 80 [136] Therefore, the following are the proposed orders of the Court: 1. The defendants pay the plaintiff the sum of $7,757.73.333 2. The defendants pay the plaintiff the sum of $209,475.84.334 3. The parties are to make written submissions as to costs, such submissions not to exceed three (3) pages in length: (a) in the case of the plaintiff, by filing and serving such submissions on or before 11 September 2020; and (b) in the case of the defendants, by filing and serving such submissions on or before 19 September 2020. 4. It is declared that the defendants hold their interests in the property described as Lot 8, SP 265513, Title Reference 51027121, located at 56 Kentish Road, Kiels Mountain on trust for the plaintiff beneficially as to the sum of $177,521.90 and in the remainder beneficially for themselves. 5. The parties are granted liberty to apply. 333 $6,574.35 for the Initial Expenses Claim, plus interest of $1,183.38. 334 $177,521.90 for the plaintiff’s remaining contribution to Kentish Road, plus interest of $31,953.94. -- 80 of 80 --