Erickson v Stevens [2000] QDC 253

DISTRICT COURT OF QUEENSLAND CITATION: Erickson v. Stevens [2000] QDC 253 PARTIES: DAVID WILLIAM ERICKSON (Plaintiff) v. SAMANTHA NAOMI STEVENS (Defendant) FILE NO/S: Plaint 100 of 1998 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court Maryborough DELIVERED ON: 8 September 2000 DELIVERED AT: Brisbane HEARING DATE: 14 August 2000 JUDGE: McGill DCJ ORDER: Declaration that the defendant holds her legal interest in the property situated at 30 Sea Eagles Road, Booral, being Lot 30 on Registered Plan 130932, County of March, Parish of Urangan, the land contained in title reference volume 4656 folio 230, on trust for the plaintiff to the extent that the value of her interest exceeds $15,000. CATCHWORDS: TRUSTS AND TRUSTEES – constructive trusts – former de facto couple – jointly owned property – short relationship – disparity of contributions – whether and how imposed TRUSTS AND TRUSTEES – resulting trusts – former de facto couple – jointly owned property – acquisition paid for by one – whether presumption rebutted Biviano v. Natoli (1998) 43 NSWLR 695 - considered Forgeard v. Shanahan (1994) 35 NSWLR 206 – followed Stone v. Owen [2000] QCA 56 – followed Calverley v. Green (1984) 155 CLR 242 – followed Muschinski v. Dodds (1985) 160 CLR 583 - followed Marcucci v. Burnes (1985) DFC #95-003 – followed Wirth v. Wirth (1956) 98 CLR 228 – considered Dunne v. Turner (Queensland Court of Appeal, 20.8.98, unreported) – followed Baumgartner v. Baumgartner (1987) 164 CLR 137 – considered Jenkins v. Wynen [1992] 1 Qd.R. 40 – cited -- 1 of 12 -- 2 COUNSEL: M.A. Fellows for plaintiff W.G. Everson for defendant SOLICITORS: Roberts Nehmer McKee for plaintiff Morton and Morton for defendant [1] The plaintiff and defendant are registered as proprietors as joint tenants of an estate in fee simple in a parcel of land at Hervey Bay on which is constructed a house. It was acquired under a contract to them both as buyers which is undated but was due to settle on 6 June 1997: Exhibit 1. The whole of the purchase price was provided by the plaintiff. The value of the property is less than the jurisdictional limit: Exhibit 7. The plaintiff claims a declaration that the defendant holds her interest in that property on a resulting trust in favour of the plaintiff, and consequential relief. By counterclaim the defendant seeks a declaration as to her beneficial interest in the property. History of the Relationship [2] The parties formerly lived in a de facto relationship, during two separate periods. They lived together during the period 1990 to 1994, in Townsville, in rented accommodation: p.5, 38. I accept that during this period they shared such resources as they had, either from employment or social security payments (p.16); the plaintiff was in employment more than the defendant, although this is partly explained by the fact that during this period the defendant bore two children. No jointly owned assets were acquired during this period. [3] In 1993 the plaintiff was injured at work as a result of which he suffered some injury to the leg and the back: p.5. This produced a change in his disposition, and led to a deterioration of the relationship (p.30), so that the parties separated in 1994. The plaintiff moved out after an argument, stayed with his parents for a short time and then moved to Brisbane for about 12 months: p.6. He then returned to Townsville. The defendant remained in Townsville for a time, but in 1996 moved to Hervey Bay where there were other members of her family, particularly her sister, with whom she stayed for a time: p.32. The two children remained with the defendant; there was some conflict in the evidence as to the extent to which the plaintiff remained in touch with the children during this period (p.16, p.31), which I do not think is directly relevant to the matters in issue. [4] In 1997 the plaintiff received a significant sum of money as a consequence of the injury that he suffered in 1993: p.7. As a result, he purchased some property in Townsville, and in the early part of 1997, he came to Hervey Bay to visit the defendant and their children. He took them for an outing to Fraser Island, and stayed with them in premises rented by the defendant: p.7, 17. In time the relationship developed again, and the parties decided to get back together. The plaintiff was keen to have his family back again: p.18, 32. There was an occasion in 1997 when they visited the defendant’s stepfather and the plaintiff said that he -- 2 of 12 -- 3 wanted to re-establish the relationship, that he was prepared to look after them, and that they were going to buy a house in Hervey Bay and set up as a family again: p.50. This was not said in reference to a particular home: p.51. After some looking around they located the subject property in Sea Eagles Road, which has an area of just over 2 hectares in an established rural residential part of Hervey Bay; there was on the land a high set older style wooden house: Exhibit 7. [5] There was some conflict as to the circumstances under which the contract came to be signed: p.41. The evidence (p.27) of the solicitor, Mr. Butler, is I think, consistent with the proposition that the contract was originally in the name of the plaintiff only as purchaser, but that the defendant’s name was subsequently added at her initiative and I so find. The plaintiff said that he was cautious about the relationship and that was why he initially put the contract only in his own name (p.8), but the defendant’s attitude was that she was not going to continue the relationship on this basis, and he relented otherwise he was going to lose his family: p.9. The contract was varied so that the defendant was also named as a purchaser, and it was also signed by her. He also gave instructions to the solicitors for the property to be held as joint tenants: Exhibit 4. Nevertheless, it was common ground that the whole of the purchase price, $87,000, was paid by the plaintiff. [6] The effect of the steps taken by the plaintiff was that the defendant acquired a legal interest as joint tenant with the plaintiff in the land, that is to say the land was put in both their names. The plaintiff said that he did this because he thought that he and the defendant were going to get married and be together forever: p.15. That is consistent with the defendant’s understanding of the position at the time: the property was being purchased as a family home for the two of them and their children in what was intended to be an enduring relationship: p.45-47. [7] The defendant had not been in employment after coming to Hervey Bay, but at some stage began to carry on business as a clothing retailer in partnership with her sister: p.33. During the time when the parties were living together in the subject property, the defendant was engaged in this business during normal trading hours on week days and Saturday morning (p.34), with the plaintiff fulfilling the role of house husband: p.22. The elder child was at school, and the younger at pre-school. Unfortunately, the business was not a success and it closed just before separation: p.39. It lost money, including some money which had been provided by the plaintiff (p.10,15), but no doubt the intention was that it would be a source of income to the defendant and in that way enable her to contribute to the family finances. The defendant contributed such funds as she had: p.37. [8] Disagreements arose between the parties after about 6 months: p.22. The plaintiff began to complain about the time that the defendant spent looking after the business (p.22, 34), perhaps because he was unhappy with the role of house husband, or perhaps because he had a more realistic view of the prospects of the business. The defendant was unhappy about some of the plaintiff’s religious activities: p.22, 34. The relationship deteriorated with further arguments, and eventually the plaintiff left in February 1998 (p.10), returning to Townsville. The defendant stayed in the -- 3 of 12 -- 4 home for some time, during which time the plaintiff paid the rates while the defendant paid the electricity and the telephone bill, but ultimately the defendant also left and the home has been vacant for some time and is on the market. [9] After the plaintiff left (p.35) the defendant obtained an order against him under the Domestic Violence Act. The plaintiff consented to an order under this Act without admitting that there was any justification for it: Exhibit 6 and p.23. I was told that the application for the order was made after the plaintiff had been coming to the house and making a nuisance of himself, but was not provided with details of the allegations relied on in the application for that order. The order may have had something to do with the fact that when the plaintiff left he took almost all of the furniture in the house with him, on the basis that it was his furniture: p.23. The defendant said that he also threatened to take the children (p.35), but he did not admit this. [10] On the question of credibility, I was not prepared to accept that everything said to me by either party was entirely accurate, and I have tried to resolve conflicts on particular points which appear significant. Otherwise, where I state something as a fact in the judgment, I accept the evidence that supports that fact. In general, I thought the plaintiff’s evidence more reliable than the defendant’s. Occupation Rent Claim [11] Apart from the declaration sought and consequential orders, the plaintiff sought damages by way of an occupation rent for the occupation of the premises by the defendant, on the basis that he had been excluded from occupation. He has certainly not been excluded during the period after the defendant ceased to be in occupation, and was not excluded after the time when the domestic violence order expired, apparently in April last year. The New South Wales Court of Appeal has held in Biviano v. Natoli (1998) 43 NSWLR 695 that the effect of an order analogous to a restraining order under the Domestic Violence Act was not to constitute an ouster so as to give rise in the co-owner excluded a right to recover an occupation fee from the co-owner who remained in occupation. In the absence of an ouster or exclusion of the other co-owner, the co-owner in occupation is ordinarily not under any liability to account to a co-owner not in occupation for the benefit of occupation: Forgeard v. Shanahan (1994) 35 NSWLR 206. [12] The Court of Appeal in Stone v. Owen [2000] QCA 56 discussed but did not finally decide what the position would be in the case of a claim for occupation rent in such circumstances where there was an exclusion pursuant to an order of this nature. If the decision of the New South Wales Court of Appeal in Biviano is correct, there was no ouster here so as to give rise to such an entitlement, but even if such an order could give rise to such an entitlement, the evidence of the present case was that the plaintiff had left the premises voluntarily before the order was obtained, and the fact that he did not attempt to return after it expired confirms, in my opinion, that it was not the order which prevented him from continuing to occupy the premises. His attitude to the application for the order, as revealed in Exhibit 6, is I -- 4 of 12 -- 5 think consistent with this. The position therefore is that in fact he did not occupy the property because of his own choice, and therefore cannot claim an occupation rent or fee from the defendant. Claim – Resulting Trust [13] The plaintiff’s basic claim is that because he provided the whole of the purchase price for the property, the defendant held her legal interest in the property on a resulting trust for him, there being no presumption of advancement in the circumstances: Calverley v. Green (1984) 155 CLR 242, which established that there was no presumption of advancement where a man put property into the name of a woman with whom he was living in a de facto relationship. It follows that if all that is known of the transaction is that the parties were living in a de facto relationship and the plaintiff paid the whole of the purchase price, the starting point is the presumption of a resulting trust in favour of the plaintiff. [14] However, where there is evidence of the actual intention of the plaintiff at the relevant time, what matters is his actual intention as to the disposition or otherwise of the beneficial interest: Muschinski v. Dodds (1985) 160 CLR 583 at 590. In that case, as in this, the party providing the purchase money originally intended to have sole ownership, but was persuaded to put the other party’s name on the title because of promises as to what would be done on or with the property. In that case what was to be done was rather more extensive than just to make a home of it, and there was some evidence of expressions of intention that the parties would be equal partners in the whole project, and the evidence was said to have led inexorably to the conclusion that it was their intention from the time of purchase that each should have a full one half beneficial as well as legal interest in the property: p.611 per Deane J. A similar conclusion was reached in the matter of Marcucci v. Byrnes (1985) DFC #95-003, where a property paid for entirely by the plaintiff was registered in the names of the plaintiff and defendant as joint tenants at the request of the defendant, the plaintiff having expressed at the time a desire that she have something so that in the event of his death she would be able to look after their child. This was treated as an indication of an intention to confer a beneficial interest in the property which followed the legal interest. [15] In my opinion, the position is the same here. The intention as expressed at the time was that this was to be a family home and was to be the basis of their commitment to a life together. The defendant had said that she would not be a party to such a commitment unless her name was on the title of the home, and I think that the effect that this would have produced on the plaintiff was to make him realise that if the relationship was to go further, he had to be prepared to give her an interest in the property. I think it is reasonable to interpret a desire to put her on the title, as an intention in terms of the disposition of the beneficial interest in the property, rather than one which was satisfied by a bare legal interest as trustee for the plaintiff. [16] In my opinion, therefore, the actual intention of the plaintiff at the time was that the beneficial interest should follow the legal interest, that is, in effect he was making a -- 5 of 12 -- 6 gift of half of the property to the defendant. There is nothing to indicate that the situation here was any different from the situation in Muschinski v. Dodds, where there was a disposition of an immediate and unconditional beneficial interest in the property which was not intended to be limited, suspended or made conditional: see p.593. [17] The presumption of advancement applies in the case of a transfer from a man to a woman in contemplation of a marriage which they have contracted, notwithstanding that the marriage has yet to take place: Wirth v. Wirth (1956) 98 CLR 228 at 237 per Dixon CJ. The evidence does not suggest that that authority is directly applicable in the present case, (apart from anything else, the marriage did not take place: Jenkins v. Wynen [1992] 1 Qd.R. 40) but the fact that the presumption of advancement applies in such circumstances I think supports the view that, where a man finances the acquisition of property in the joint names of himself and a woman thinking they were going to be together forever and get married, and where she requires the property to be put into their joint names for the relationship to continue on that basis, the correct interpretation of his actual intention is that she should have a beneficial interest in the property as well as a legal interest. Constructive Trust [18] That, however, is not the end of the matter in this case, just as it was not the end of the matter in Muschinski v. Dodds. The issue remains whether there should be imposed a constructive trust, as was imposed in that case. The High Court there rejected the imposition of a resulting trust, and accepted that there was an intention to make an immediate and unconditional gift of one half interest in the land, but concluded that nevertheless it was necessary and appropriate to impose a constructive trust because of the circumstances that had subsequently arisen. The matter was discussed in the judgment of Deane J, particularly beginning at p.618: “Both common law and equity recognise that, where money or other property is paid or applied on the basis of some consensual joint relationship or endeavour which fails without attributable blame, it will often be inappropriate simply to draw a line leaving assets and liabilities to be owned and borne according to where they may prima facie lie as a matter of law, at the time of the failure. Where there are express or implied contractual provisions specially dealing with the consequences of failure of the joint relationship or endeavour, they will ordinarily apply in law and equity to regulate the rights and duties of the parties between themselves, and the prima facie legal position will accordingly prevail. Where, however, there are no applicable contractual provisions, or the only applicable provisions were not framed to meet the contingency of premature failure of the enterprise or relationship, other rules or principles will commonly be called into play.” -- 6 of 12 -- 7 After a consideration of various matters, His Honour continued at p.620: “The circumstances of the present case provide the necessary context for the operation of that general principle of the law of equity. Mrs Muschinski’s payment of the purchase price of the Picton property, which was transferred into the joint names of Mr. Dodds and herself, was made on the basis and for the purposes of their planned venture with respect to the land. The substratum of that planned joint endeavour was removed without attributable blame. Mr. Dodd’s is left as a half owner of the property in circumstances (ie the collapse of the joint endeavour) to which the parties did not advert and in which it was not specifically intended or specially provided that Mr. Dodds should enjoy such a benefit at Mrs Muschinski’s expense. In these circumstances, the operation of the relevant principle is to preclude Mr. Dodds from asserting or retaining, against Mrs. Muschinski, his one half ownership of the property to the extent that it would be unconscionable for him so to do. 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 combined 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 of the unforeseen and premature collapse of a joint relationship or endeavour.” There was then some analysis of the facts in the particular case and His Honour continued at p.622: “In fact of course the personal relationship also failed in the present case. The Picton property was not devoted to serve as a mutual home for a lengthy period after the collapse of the planned commercial venture. There is no consideration or combination of considerations arising from the personal relationship between the parties which could properly be seen as negating or overriding the unconscionable character of Mr. Dodds’ conduct in seeking, in the circumstances, to assert and retain the benefit of a full one half interest in the property without making any allowance for the fact that Mrs. Muschinski has contributed approximately 10/11ths of the cost of purchase and actual improvement.” His Honour went on to conclude that it would be unconscionable for Mr. Dodds to retain the benefit of the property to the extent that this prevented the repayment to the parties of their respective contributions. -- 7 of 12 -- 8 [19] In that case the other members of the majority, Gibbs CJ and Mason J, had somewhat different reasons for the same conclusion. However, in Baumgartner v. Baumgartner (1987) 164 CLR 137, the approach of Deane J in Muschinski was treated as authoritative by the majority (p.148), by Toohey J at p.152, and by Gaudron J at p.157. In that case the contentious property had been purchased in the name of one party but both had to some extent contributed to the acquisition of, and the discharge of a mortgage on, the property. The facts of that case are quite different from the present, but it is of some significance that there was a recognition of a need to take account of the disparity in the contributions, payments made by the parties before and after the relationship, and the benefit enjoyed by the appellant through the use and occupation of the property after the relationship (p.150-1). The court recognised that it would be relevant to take into account contributions other than financial: p.149. [20] The effect of the decisions of the High Court was summarised by Pincus JA in Dunne v. Turner (Queensland Court of Appeal, 20.8.98, unreported) as: “1. A constructive trust may be imposed even though the person held to be trustee had no intention to create a trust or hold property on trust. 2. An intention to create a trust may be imputed where it is necessary to do so “in good faith and in conscience. 3. A principle which may be applied is that which restores to a party contributions made to a joint endeavour which fails, when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. 4. Contributions, financial and otherwise, to the purposes of the jointed relationship are relevant for this purpose.” His Honour went on to consider the authorities supporting his view that it was right to take into account non-financial contributions by the respondent in that appeal. [21] The approach adopted in Muschinski v. Dodds was applied by the Court of Appeal in Stone v. Owen (supra). That was also a case where there was some contribution by each of the parties to a property held in the name of only one of them. In addition that was a case where the value of the property was such that there was some surplus to be divided after the contributions had been repaid, a situation which does not apply in the present case. [22] One of the matters relied on on behalf of the defendant was evidence of a statement the plaintiff made some time prior to the house being bought. The defendant said (p.31) that he once said to her that he wanted to buy a house for the children. She also said that at the time the house was purchased he said he would put it in both names so she and the children would have security: p.32. It was submitted that this indicated an intention to make immediate disposition of half beneficial interest in -- 8 of 12 -- 9 the property, and reference was made to some remarks by Mahoney JA in Marcucci v. Burnes (supra) at p.75,113: “The joint tenancy would result in the property passing to her on his death, as he obviously contemplated, and as I infer from what he said, it was intended that when it did that should have the effect of providing security for her in care of the child. But such security would be afforded because she would then own the property and would be protected against, for example, anyone who might have taken the property as part of his estate had she been merely a trustee of it.” The defendant sought to link this with the instruction that the property be held as joint tenants as providing some indication of a continued desire to assist the children. It seems to me however that the passage quoted makes it clear that the intention of the man in that case was to provide some security for the woman because she had the child to care for rather than to confer a benefit upon the child, and that the issue the court was considering was whether the woman held beneficially or merely as trustee, rather than whether the property was held beneficially as joint tenants or tenants in common. [23] Certainly an arrangement that the interest in the property be held beneficially by the woman rather than as trustee for the man provides a greater security for the woman if she has to look after a child without him, and the effect of providing for her interest to be as joint tenant would mean her interest would be enlarged in the event of his prior death. But a choice of joint tenancy rather than tenancy in common is not, in my opinion, a choice which is likely to enhance the position of the children in the event of the death of one or other parent. If the property is held on a tenancy in common then the children have two opportunities to obtain some benefit from it, either under a will or by means of an application under the Succession Act, but if the property is held jointly then there will be no opportunity for the children to get any benefit from the death of the first of the joint owners. It sometimes happens that A and B own property jointly, A dies and the property passes by survivorship to B and the property then comes to be part of property owned jointly between B and C which on B’s death passes by survivorship to C. In these circumstances the children of A and B will be unable to obtain any benefit from the property, either by will or by application under the Succession Act. Logically therefore, holding property as joint tenants rather than as tenants in common does not provide any particular protection or benefit to the children of the relationship, although if it were thought that it did so, that may be consistent with a desire to benefit the children. In any case, the plaintiff denied that he said this (p.17) and I prefer his evidence on this (and see p.21). [24] I think that the purpose of the acquisition is the crucial consideration in the present case. The house was acquired with the intention that it would be the foundation of a lasting family relationship involving the plaintiff, the defendant and their children, for which it would be the family home. That, I think, is the correct interpretation of the intention of the plaintiff, and indeed the defendant: p.45. The defendant agreed that no consideration was given in this context to the possibility that the relationship -- 9 of 12 -- 10 might not last: p.47. In these circumstances, I do not think that it is appropriate to characterise the attitude of the plaintiff as one where he was making a gift of half of the house property to the defendant whether or not the relationship continued. The parties did not foresee or attempt to provide for the contingency of the premature collapse of their personal relationship, and in view of the disparity between their contributions to the acquisition of the property, and the shortness of the relationship before it did collapse, the assertion by the defendant of unqualified legal entitlement to one half interest in the property becomes unconscionable, for the reasons explained by Deane J in Muschinski v. Dodds at p.622. It follows that equity requires that the rights and obligations of the parties be adjusted to compensate for the disproportion between their contributions, to the extent necessary to avoid unconscionability. [25] In assessing this, it is relevant to take into account contributions, financial and otherwise, to the purposes of the joint relationship. Although there was some evidence about the circumstances under which the relationship ultimately came to break down, neither party sought to advance any particular argument based on the proposition that the case was one where blame or responsibility for the termination of the relationship should be particularly attributable to one party rather than the other. [26] This present case falls into the second category of cases where a constructive trust is imposed to prevent unconscionable conduct identified at p.67 of Willmott “De Facto Relationships Law” (LBC 1996), which contains at pages 61-82 a helpful analysis of the authorities dealing with this application of a constructive trust. In the present case it seems clear that during both periods of co-habitation the parties were pooling their financial resources such as they were. I think it appropriate to proceed on the basis that the desire and intention in operating the business was to make money rather than to lose it, and that during the relevant period the defendant was trying hard to make a real contribution to the family finances. Because her efforts were unsuccessful, this is not a factor which can be reflected by way of a financial contribution, but I think it is one matter which can be taken into account when assessing non-financial contributions. [27] There were also contributions by the defendant in the form of labour to improve the premises (p.11, 22, 33, 35); these are recognised and identified in the valuation report, Exhibit 7, at p.5, although the valuer attributes only the sum of $2,000 as added value to the premises as a consequence. This strikes me as a small amount, particularly where the defendant must have been largely responsible for the presentation of the premises at the time when it was seen by the valuer; the photographs show that the property is well presented external in October 1999, well after the plaintiff left (in February 1999) and I would have thought that something like that would have assisted in the saleability of the property. However, I do not think it would be right for me to substitute my own views for that of the expert valuer on a matter such as this. -- 10 of 12 -- 11 [28] One difficulty with the valuation evidence is that although there is a figure given by the valuer for the extent to which the work on the property done by the defendant has enhanced its market value, there is no equivalent figure given for the extent to which the work on the property done by the plaintiff has enhanced its market value. The valuer notes that, with work of this kind, the added value may be less than it actually cost, and the inference seems to be that the cost of doing the work undertaken by the defendant, particularly when one makes allowance for her labour, would have exceeded $2,000. The plaintiff has provided details of the cost to him of effecting the improvements which he effected (Exhibit 2), but it is not clear whether that full cost is reflected in the current valuation. [29] The property was purchased by the parties for $87,000 (Exhibit 8) and some of the current valuation may be due to changes in the value of what was then purchased; for example, the value of the land component may have increased. If there has been some capital appreciation in the value of what was acquired, then on the analysis adopted in Muschinski v. Dodds, that appreciation should be shared equally. On the other hand, if one is to divide the current valuation on the basis of the amount contributed, regardless of whether that would achieve an equivalent enhancement in the value, the amount attributed to the defendant should be a valuation of her labour plus the amount she actually spent, rather than a valuation of the extent to which this has enhanced the market value of the property. I think it follows from the valuer’s comments referred to earlier that the figure of $2,000 is going to be an underestimate of the cost of the work done by the defendant, particularly if some allowance is made for the value of her labour. This is not a matter which is proved with any precision, but doing the best I can, I think that a realistic figure to allow in the light of all the evidence is $5,000. [30] Another significance of the property having been carefully maintained by the defendant is that this may be seen as a feature which to some extent offsets her continued occupation of the premises, a factor which can properly be taken into account, notwithstanding that the plaintiff has no entitlement to any occupation fee: Stone v. Owen [2000] QCA 56. There was no evidence as to the value of the benefit which the defendant obtained by living in the premises during the period she was there, and I suspect that her efforts in maintaining and enhancing the presentation of the premises, and in providing some degree of protection to the premises (there would be a greater risk of some malicious damage to the premises if they were vacant) should in the circumstances of this case be treated as offsetting the benefit she obtained by way of occupation during that period. [31] The way in which non-financial contributions are recognised has not been explored to any great extent in the authorities. One feature which has been emphasised in cases where the relationship has continued for a relatively long time is the proposition that equity favours equality: see for example Baumgartener (supra) at p.149. The significance of this, I think, is much diminished in the case of a relatively short relationship where there is a great disparity in the extent of the contributions. It does not necessarily follow, in my view, that such period of the relationship as there was is irrelevant. If the defendant had insisted on the house being put into both names, or the relationship did not continue, and the plaintiff had -- 11 of 12 -- 12 put the house in both names, and the defendant had then immediately terminated the relationship anyway, it would, I think, be clearly unconscionable for her to retain any interest in the house. But that is not this case. I accept that at the time the house was purchased she was genuinely trying to make the relationship work and it did last for some time, although not very long. She has contributed to the relationship as a homemaker and a mother; the plaintiff had acknowledged her efforts as a mother to their daughters (p.32), and there is no reason to think that this did not continue during the relevant period, and I think that this is a factor which should be accorded some weight as a non-financial contribution. This is not a case where the need of the defendant and the children for accommodation remains a factor; assuming that that would otherwise be a relevant consideration (as to which I express no opinion, the matter not having been argued) it is not a factor which operates here because the defendant and the children have voluntarily left the property. I do not think that the money lost to the plaintiff by the failure of the defendant’s business should be taken into account. [32] It is clear from the very detailed figures in Exhibit 2 that the existing value of the property ($105,000 – Exhibit 7 – which was common ground) is less than the total financial contributions to it from both parties, so recognition of non-financial factors can only operate by diminishing the extent to which the final distribution is based on the balance of financial contributions. If non-financial factors are disregarded the effect would seem to be that the defendant would simply receive the sum of $5,000. However, I do not think it can be said that it is unconscionable in all the circumstances of this case for the defendant to retain from the premises no more than the sum of $5,000. It is clear from the authorities that precise mathematical accuracy in these matters is not appropriate, and that must be particularly the case when it comes to making some allowance for non-financial contributions to the relationship. [33] With regard to the allowance for the non-financial contributions, all I can realistically say is that I think that an appropriate allowance in all the circumstances is an additional sum of $10,000. This particularly reflects an assessment of the contribution to the relationship made by the defendant as homemaker and parent and her attempts to earn an income, and takes into account such duration as there was to the relationship. To put it another way, I do not think it unconscionable in all the circumstances of this case for the defendant to assert her legal title to one half of the subject property to the extent of $15,000. [34] There will therefore be a declaration that the defendant holds her legal interest in the property situated at 30 Sea Eagles Road, Booral, being Lot 30 on Registered Plan 130932, County of March, Parish of Urangan, the land contained in title reference volume 4656 folio 230, on trust for the plaintiff to the extent that the value of her interest exceeds $15,000. I should say that it was agreed by the parties at the end of the trial that it was appropriate for my judgment to reflect quantification in dollar terms of the defendant’s interests in this way. I was also told that it was unnecessary for me to make any further orders since the parties have put in place a mechanism for realising the property. I will circulate these reasons and invite submissions in relation to the question of costs. -- 12 of 12 --