MARR -v- SCOTT [2026] WASC 301

[2026] WASC 301 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : MARR -v- SCOTT [2026] WASC 301 CORAM : GETHING J HEARD : 16 - 24 FEBRUARY 2026 17 - 19 JUNE 2026 DELIVERED : 5 AUGUST 2026 FILE NO/S : CIV 2022 of 2020 BETWEEN : DIANA MARION MARR Plaintiff AND PHILLIP WARREN SCOTT Defendant Catchwords: Property law - Property acquired as tenants in common in equal shares - Distribution of proceeds of sale paid into court - Rights of co-owners to claim initial contributions, expenses and mortgage payments - Distribution of rental income received - Whether ouster from the property - Whether occupation rent otherwise payable Equity - Whether a fiduciary relationship arose between tenants in common in equal shares - Common business enterprise to own and develop land for commercial purposes - Whether fiduciary obligation breached by failure to improve the property so it could be let commercially - Measure of equitable compensation Equity - Tenants in common in equal shares - Commercial relationship - -- 1 of 253 -- [2026] WASC 301 Page 2 Whether there was common intention constructive trust adjusting beneficial ownership - Whether there was a remedial joint endeavour constructive trust - Whether there was a resulting trust based on unequal contributions to the purchase price Legislation: Limitation Act 2005 (WA) s 13, s 26, s 27 Property Law Act 1960 (WA) s 126 Result: Proceeds of sale of land in court distributed to co-owners Category: B Representation: Counsel: Plaintiff : In Person Defendant : Ms P A Martino Solicitors: Plaintiff : In Person Defendant : P A Martino Barrister & Solicitor Case(s) referred to in decision(s): Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah [2016] WASC 380 Alistair McDougall Nominees Pty Ltd atf McDougall Holdings Trust v Rural Bank (a division of Bendigo and Adelaide Bank Ltd (ACN 068 049 178) [No 2] [2025] WASC 326 Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101 Baumgartner v Baumgarnter (1987) 164 CLR 137 Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384 Biviano v Natoli (1998) 43 NSWLR 695 Bombara v Bombara [2010] WASC 314 -- 2 of 253 -- [2026] WASC 301 Page 3 Callow v Rupcev [2009] NSWCA 148 Calverley v Green (1984) 155 CLR 242 Chou v AWAPAGE SGT 26 Investment Ltd [No 3] [2018] WASC 383 City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249 Commonwealth of Australia v Amann Aviation Pty Ltd [1994] HCA 54; (1991) 174 CLR 64 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 Coster v Coster [2024] NSWSC 1104 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Dewar v Ollier [2020] WASCA 25 Doherty v Sampey (as Administrator of the Estate of Addison) [2023] WASC 10 Duckworth atf The Ocean Farm Trust v Water Corporation [2024] WASC 90 Effem Foods Pty Ltd v Lake Cumberline Pty Ltd [1999] HCA 15 Electricity Generation Corporation trading as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Fathers v Cook [2006] WASC 129 Forgeard v Shanahan (1994) 35 NSWLR 206 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Giacci v Giacci Holdings Pty Ltd [2010] WASC 349 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Iain v Amit Laundry Pty Ltd [2019] NSWCA 20 In Meiners (by her next friends the Public Trustee) v Gunn [No 2] [2025] WASC 529 In Re Ellis; Ellis v Ellis [2015] WASC 77 In Re Gorman (a Bankrupt) [1990] 1 WLR 616 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 La Mela v Franklexis Pty Ltd [2020] WASCA 83 Lanskey Constructions Pty Ltd v Westrac Pty Ltd [2022] WASC 90 Lloyd v Tedesco [2002] WASCA 63 M Drainage & Constructions Pty Ltd atf DM Unit Trust t/a DM Civil v Lavan [2023] WASC 451 Meagher as trustee in Bankruptcy of Stein v Stein [2025] WASC 235 Mercanti v Mercanti [2016] WASCA 206 Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [2025] WASCA 82 Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 -- 3 of 253 -- [2026] WASC 301 Page 4 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 Muschinski v Dodds (1985) 160 CLR 583 Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148 Nobarani v Mariconte [2018] HCA 36 Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635 Old Papa’s Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1981] HCA 3; (1981) 145 CLR 625 R v Adams [2016] NSWSC 1798 Sethi v Bhavsar [2020] WASCA 52 Silvester v Sands [2004] WASC 266 Smart v Prisoner Review Board (WA) [2012] WASC 48 Stevens v Wright [2021] WASC 36 Thorby v Goldberg (1964) 112 CLR 597 Trajkoski v State of Western Australia [2017] WASC 273 United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1 Ventia Utility Services Pty Ltd (ACN 010 725 247) (formerly known as Thiess Services Limited) v Electricity Networks Corporation T/as Western Power [No 3] [2024] WASC 179 Warman International Ltd v Dwyer (1995) 182 CLR 544; 128 ALR 201 Warren v Lawton [No 3] [2016] WASC 285 Watson v Foxman (1995) 49 NSWLR 315 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 West v Mead [2003] NSWSC 161 Willis v The State of Western Australia [No 3] [2010 WASC 56 Woodings as liquidator of Bell Groupage Ltd and Bell Groupage Finance Pty Ltd v WA Glendinning and Associates Pty Ltd [2019] WASC 54 Woodley v Woodley [2018] WASCA 149 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 26] [2026] WASC 101 Wright v Lemon [2024] WASCA 19 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 -- 4 of 253 -- [2026] WASC 301 GETHING J Page 5 TABLE OF CONTENTS 1. Introduction ................................................................................................................ 9 2. Trial ........................................................................................................................... 10 2.1 Pleadings ........................................................................................................... 10 2.2 Submissions ...................................................................................................... 10 2.3 Documents ........................................................................................................ 11 2.4 Schedules .......................................................................................................... 12 2.5 Witnesses .......................................................................................................... 12 2.6 Approach to the evidence generally ................................................................. 13 2.7 Ms Marr as a litigant in person ......................................................................... 14 3. Events leading up to the purchase of Links Road ................................................. 15 3.1 Ms Marr's background ...................................................................................... 15 3.2 Rancore Marr Sale Contract ............................................................................. 17 3.3 Mr Scott's background ...................................................................................... 18 3.4 Discussions leading up to the Initial Marr Scott Sale Contract ........................ 19 3.5 Initial Marr Scott Sale Contract ........................................................................ 24 3.6 Disspain conversation ....................................................................................... 28 3.7 Events after the Initial Marr Scott Sale Contract .............................................. 35 3.8 Final Marr Scott Sale Contract ......................................................................... 35 3.9 Initial applications for loans ............................................................................. 37 3.10 Vandalism ......................................................................................................... 41 3.11 Loans from the CBA ......................................................................................... 50 4. Settlement of Links Road ........................................................................................ 50 4.1 Facts from the documents ................................................................................. 50 4.2 Ms Mulcahy's evidence .................................................................................... 52 4.3 Ms Marr's evidence ........................................................................................... 55 4.4 Mr Scott's evidence ........................................................................................... 56 4.5 Factual findings ................................................................................................ 57 5. Evidence as to initial agreements ............................................................................ 59 5.1 Overview........................................................................................................... 59 5.2 Ms Marr's evidence ........................................................................................... 60 5.3 Mr Scott's evidence ........................................................................................... 66 6. Events following settlement ..................................................................................... 69 6.1 Banking arrangements ...................................................................................... 69 6.2 Vandalism repairs ............................................................................................. 70 6.3 Determination ................................................................................................... 72 -- 5 of 253 -- [2026] WASC 301 GETHING J Page 6 7. Events from 1999 to 2023 ........................................................................................ 74 7.1 Rezoning applications ....................................................................................... 74 7.2 Ms Marr's initial occupation ............................................................................. 75 7.3 Period of vacancy ............................................................................................. 76 7.4 Home Loan 2 .................................................................................................... 78 7.5 Mr Scott's relationship with Ms Caruana ......................................................... 84 7.6 Rent Transactions Schedule and Monthly Rent Spreadsheet ........................... 85 7.7 Byron Scott ....................................................................................................... 86 7.8 Richard Biesiekierski ........................................................................................ 87 7.9 Brian Rilston ..................................................................................................... 88 7.10 Tim Brown ........................................................................................................ 89 7.11 Streamline 2 ...................................................................................................... 92 7.12 Kevin Scott ....................................................................................................... 92 7.13 September 2011 meeting .................................................................................. 95 7.14 2011 Correspondence ..................................................................................... 102 7.15 Reece Scott and others .................................................................................... 107 7.16 Boatshed meeting............................................................................................ 108 7.17 2014 Application to the Magistrates Court. .................................................... 120 7.18 Occupation by Ms Marr and Mr Scott ............................................................ 122 7.19 Occupation by Mr Scott .................................................................................. 122 7.20 Tenancy agreement with Mr Pearce and Ms Butler ....................................... 123 7.21 Repayment of Home Loan 2 ........................................................................... 125 7.22 Commencement of the present action............................................................. 125 7.23 Application to the Magistrates Court .............................................................. 125 8. The sale of Links Road .......................................................................................... 126 9. What was the inpitial agreement or agreements between Ms Marr and Mr Scott?................................................................................................................. 129 9.1 Legal principles .............................................................................................. 129 9.2 Ms Marr's position .......................................................................................... 134 9.3 Mr Scott's position .......................................................................................... 138 9.4 Approach to the determination of the issues................................................... 140 9.5 The Initial Marr Scott Sale Contract ............................................................... 141 9.6 The Final Marr Scott Sale Contract ................................................................ 142 9.7 Were there any other agreements? .................................................................. 142 9.8 Common intention constructive trust.............................................................. 150 9.9 Home Loan 2 .................................................................................................. 151 9.10 Pleaded agreements ........................................................................................ 152 -- 6 of 253 -- [2026] WASC 301 GETHING J Page 7 10. What are the legal principles relating to co-ownership of land? ....................... 153 10.1 The partition power......................................................................................... 153 10.2 Forgeard v Shanahan ...................................................................................... 154 10.3 Biviano v Natoli.............................................................................................. 161 10.4 Silvester v Sands ............................................................................................. 162 10.5 Fathers v Cook ................................................................................................ 167 10.6 Giacci v Giacci Holdings Pty Ltd ................................................................... 169 10.7 Trajkoski v State of Western Australia ........................................................... 172 10.8 Stevens v Wright............................................................................................. 173 10.9 Summary of applicable principles .................................................................. 175 10.10 Issues arising for determination ...................................................................... 178 11. Did Mr Scott oust Ms Marr? ................................................................................ 178 11.1 Ms Marr's position .......................................................................................... 178 11.2 Mr Scott's position .......................................................................................... 180 11.3 Did Mr Scott oust Ms Marr? ........................................................................... 180 11.4 What, if any, occupation fee is payable? ........................................................ 182 12. What rent did Mr Scott in fact receive? .............................................................. 183 12.1 Ms Marr's position .......................................................................................... 183 12.2 Mr Scott's position .......................................................................................... 183 12.3 Determination ................................................................................................. 186 13. Can Ms Marr claim any further occupation fee? ............................................... 187 13.1 Ms Marr's position .......................................................................................... 187 13.2 Mr Scott's position .......................................................................................... 187 13.3 Determination ................................................................................................. 187 14. What other contributions did the parties make? ................................................ 189 14. Mr Scott's position in evidence in chief.......................................................... 189 14.2 Ms Marr's position and evidence .................................................................... 193 14.3 Determination ................................................................................................. 195 15. How should the mortgages be accounted for? ..................................................... 196 15.1 Mr Scott's evidence in chief and final position............................................... 196 15.2 Cross-examination .......................................................................................... 198 15.3 Determination ................................................................................................. 199 16. What other expenses are claimed in relation to Links Road? ........................... 200 16.1 Ms Marr's position .......................................................................................... 200 16.2 Mr Scott's position and evidence .................................................................... 200 16.3 Expenses that are in issue ............................................................................... 203 -- 7 of 253 -- [2026] WASC 301 GETHING J Page 8 16.3 Determination ................................................................................................. 207 17. Does Mr Scott owe any fiduciary obligations to Ms Marr? ............................... 208 17.1 Ms Marr's position .......................................................................................... 208 17.2 Mr Scott's position .......................................................................................... 209 17.3 Relevant law ................................................................................................... 209 17.4 Did Mr Scott owe a fiduciary duty to Ms Marr? ............................................ 218 17.5 Is there a limitation issue? .............................................................................. 220 17.6 Did Mr Scott breach his fiduciary duty?......................................................... 221 17.7 What, if any, remedy is Ms Marr entitled to? ................................................. 227 17.8 What measure of equitable compensation is Ms Marr entitled to? ................ 229 18. Is Ms Marr entitled to a greater than 50% beneficial interest in Links Road? 236 18.1 Ms Marr's position .......................................................................................... 236 18.2 Mr Scott's position .......................................................................................... 237 18.3 Relevant law - Joint Endeavour Constructive Trust ....................................... 238 18.4 Was there a Joint Endeavour Constructive Trust? .......................................... 242 18.5 Was there a resulting trust?............................................................................. 243 19. How should the funds in court be apportioned? ................................................. 244 19.1 Approach......................................................................................................... 244 19.2 Actual inflows and outflows ........................................................................... 246 19.3 Adjustments to the Inflow Outflow Balance .................................................. 249 19.4 Distribution of the funds in court.................................................................... 252 20. What final orders are appropriate? ..................................................................... 252 -- 8 of 253 -- [2026] WASC 301 GETHING J Page 9 GETHING J: 1. Introduction 1 On 12 November 1998 the plaintiff, Diana Marr, and the defendant, Phillip Scott, become registered proprietors as tenants in common in equal shares of a property at 1 Links Road, Applecross (Links Road). They remained so until 9 June 2023 when Links Road was sold pursuant to an order of this court and the net sale proceeds paid into court. 2 The primary issue in dispute is how the net proceeds are to be distributed to the parties. Mr Scott says that the starting point is that they are each entitled to an equal share in the proceeds. Ms Marr says that as a result of an agreement between the parties, or a resulting or constructive trust, she is entitled to a 62.4% share. 3 At various points over the 25 years in which they owned Links Road, each occupied the property and each arranged for it to be let to different tenants. Mr Scott says that he has accounted for all the rental income he received. Ms Marr says he has not. 4 Ms Marr says that she was ousted from Links Road and makes a claim for occupation rent, something which Mr Scott denies. 5 Mr Scott contends that he paid more of the expenses in relation to Links Road than Ms Marr, and seeks 50% of the difference. Ms Marr disputes whether many of these expenses relate to Links Road. 6 Ms Marr contends that the terms of the agreement between them constituted fiduciary obligations mutually owed by the parties to each other. She says that Mr Scott breached his fiduciary obligations by failing to obtain rent for Links Road at fair market rates for a commercial property. She seeks equitable compensation to restore her to the position she would have been in had this breach not occurred. 7 For the reasons which follow: (a) the starting point is that the net proceeds of sale are to be equally allocated between Ms Marr and Mr Scott; (b) before that occurs, the income and contributions made, and expenses paid, need to be brought to account; -- 9 of 253 -- [2026] WASC 301 GETHING J Page 10 (c) each party is entitled to 50% of the income from, and is responsible for 50% of the costs of owning, Links Road; (d) Ms Marr claims based on a constructive or resulting trust have not been proven; (e) Ms Marr succeeds in her claim for equitable compensation for breach of fiduciary duty, but not at the level of damages claimed; and (f) the equitable compensation should be brought to account out of the funds in court. 8 The net result is that the proceeds of the sale of Links Road remaining in court should be distributed $315,885.43 to Ms Marr and $392,818.12 to Mr Scott. This is subject to hearing from the parties on one issue. 2. Trial 2.1 Pleadings 9 Mr Scott filed papers for the judge on 19 December 2025. The final versions of the pleadings were: (a) Substituted Statement of Claim, filed 5 February 2024 (Claim); (b) Substituted Defence and Counterclaim, filed 24 July 2024 (Defence); and (c) Reply to Substituted Defence and Counterclaim, filed 16 August 2024 (Reply). 10 The Claim was filed by lawyers acting for Ms Marr. By the time the Reply was filed she was a litigant in person. The Reply is more in the nature of submissions than pleadings. It is replete with emotive language. It does not assist in defining the issues arising for dispute. It does, however, foreshadow the evidence given by Ms Marr at trial. 2.2 Submissions 11 Ms Marr filed opening submissions dated 27 January 2026, closing submissions dated 6 July 2026 and reply submissions dated 10 July 2026. -- 10 of 253 -- [2026] WASC 301 GETHING J Page 11 12 Mr Scott filed opening submissions dated 6 February 2026 and closing submissions dated 6 July 2026, but did not file reply submissions. 2.3 Documents 13 Each of the parties went to considerable effort to collate and present the documents spanning the 25 years in which they owned Links Road in a logical and readily accessible form. As part of the case management leading up to the trial, it was agreed, with my approval, for the parties to collate the documents in bundles. All the documents were scanned in PDF format. Each bundle was physically tendered by the party tendering a USB containing the scanned documents. The bundles were: Party tendering Bundle name Exhibit Description Plaintiff Trial Bundle A PTB A Commonwealth Bank of Australia Account number 673401300 statements from 11 November 1998 to 14 June 2023 (Home Loan 1). Plaintiff Trial Bundle B PTB B Commonwealth Bank of Australia Account number 679058101 statements from 25 May 2002 to 1 September 2020 (Home Loan 2). Plaintiff Trial Bundle C PTB C Commonwealth Bank of Australia Account number 10138106 statements from 13 November 1998 to 30 April 2011 (Streamline 1). Plaintiff Trial Bundle D PTB D Commonwealth Bank of Australia Account number 10495649) statements from 9 June 2009 to 31 July 2023 (Streamline 2). Plaintiff Trial Bundle E PTB E Various documents Defendant Defendant's Trial Bundle 1 DTB 1 Documents relating to settlement and CBA loans Defendant Defendant's Trial Bundle 1 DTB 2 Visa card statement for the period from March 1997 to Jule 2023 Defendant Defendant's Trial Bundle 1 DTB 3 Documents relating to expenses, receipts and leasing Defendant Defendant's Trial Bundle 1 DTB 4 Documents relating to tax returns Defendant Defendant's Supplementary Bundle DTB 5 Various documents -- 11 of 253 -- [2026] WASC 301 GETHING J Page 12 14 The bundles were tendered by consent. The parties further agreed that, unless objected to, or subject to cross-examination to the contrary, the documents in the trial bundle are taken to be authentic and where a document records transactions, the transactions in fact occurred.1 15 A number of other documents were tendered which were exhibited in the usual way. 2.4 Schedules 16 Pursuant to orders I made on 19 March 2025, each party filed detailed schedules providing particulars of amounts each says was paid or received in relation to Links Road, cross-referenced to the document said to record or evidence the amount. 17 When giving evidence, Mr Scott tendered updated schedules cross-referenced to the trial bundles. He also tendered a number of other schedules. Ms Marr did likewise. I will refer to these schedules at the relevant points in this decision. 18 The schedules are not evidence. Rather, they summarise the evidence contained in the primary documents. 2.5 Witnesses 19 Ms Marr gave evidence. She also called: (a) Cheyne Pearce, who was a tenant at Links Road from 2020 until it was sold in June 2023; (b) Jacinta Caruana, Mr Scott's former de facto partner; (c) Jeffery Matthews, a long term friend of Ms Marr; (d) Jennifer Marr, Ms Marr's sister (who for clarity, and intending no disrespect, I will refer to as Jennifer); (e) Annie Mulcahy, the settlement agent for the Links Road transactions (whom I allowed to be recalled); (f) Christopher Disspain, who Ms Marr says drafted a deed for her and Mr Scott; and 1 Transcript 16.2.25, pages 262 - 264. -- 12 of 253 -- [2026] WASC 301 GETHING J Page 13 (g) Kevin Scott, Mr Scott's brother (who again for clarity, and intending no disrespect, I will refer to as Kevin). 20 Mr Scott also gave evidence. In addition, he called Frank Sanchez. Mr Sanchez is the principal of a real estate agency operating mainly in the Applecross, Ardross and Mount Pleasant areas. He has been doing so for over 25 years, dealing with both residential and commercial properties. He holds the relevant licences. I am satisfied that he is a suitably qualified witness to give expert evidence on the issue of rental values for residential and commercial properties in the Ardross area. 2.6 Approach to the evidence generally 21 The events covered in this judgment span 25 years. In my assessment, each of Mr Pearce, Ms Caruana, Mr Matthews, Jennifer, Ms Mulcahy, Mr Disspain and Kevin did their honest best to recall the events in question. To the extent that they were able to do so, I generally regard their recollections as being reliable. 22 Likewise, I accept that both Ms Marr and Mr Scott also did their honest best to recall the events in question. However, as will become apparent, each was in some respects an unreliable historian. I add to this the experience of courts is that human memory is fallible and may be shaped by self-interest to achieve the desired outcome in the trial. As McLelland CJ in Eq explains in Watson v Foxman:2 … human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 23 In the event of a conflict, I will generally prefer the evidence which is supported by either a contemporaneous document or the evidence of one of the other witnesses. More generally, in making 2 Watson v Foxman (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq). -- 13 of 253 -- [2026] WASC 301 GETHING J Page 14 factual findings, I place most weight on 'contemporary materials, objectively established facts and the apparent logic of events'.3 24 The facts asserted by each party in this trial must be proven on the balance of probabilities. They must be established to the reasonable satisfaction of the court. The court must feel an actual persuasion of their occurrence or existence. Reasonable satisfaction is not attained or established independently of the nature and consequence of the facts to be proved.4 In this judgment, when I refer to a fact being 'proven', it is proven on the balance of probabilities on this basis. 25 On many occasions when Ms Marr was cross-examining Mr Scott, she made statements about what she says occurred. The questions Ms Marr asked, and the comments she made in response to an answer, are not evidence.5 26 Where facts were not in issue at trial, I simply refer to the factual findings I have made. Where the facts relating to particular event were in issue, I set out the evidence before making specific factual findings. 2.7 Ms Marr as a litigant in person 27 In determining the action, I am mindful that Ms Marr is a litigant in person. As a litigant in person, she is entitled to some leniency in relation to compliance with the court rules.6 The court is required to approach the documents in which she articulates her case with some flexibility.7 The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which she sets out her case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.8 A 'frequent consequence of self-representation is that the court must 3 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 129 [31] (Gleeson CJ, Gummow and Kirby JJ) (Fox v Percy). See also: Effem Foods Pty Ltd v Lake Cumberline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 [16] (Gleeson CJ, Gaurdon, Kirby and Hayne JJ). 4 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 (Dixon J); Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 712 (Dixon, Evatt and McTiernan JJ); Robertson v Legal Services and Complaints Committee [2025] WASCA 92 [14] (judgment of the court); Wright v Lemon (as executor of the estate of Wright) [2024] WASCA 19 [934] (Buss P); Doherty v Sampey (as Administrator of the Estate of Addison) [2023] WASC 10 [33] (Allanson J). 5 Coomer v The State of Western Australia [2024] WASCA 133 [157] (Vandongen JA, with whom Hall JA agreed). 6 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court). 7 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). 8 Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi). -- 14 of 253 -- [2026] WASC 301 GETHING J Page 15 assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.9 28 One 'abiding difficulty' faced by the court is 'the tension between the duty of a … judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'.10 The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.11 The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.12 That is what I have sought to do. 3. Events leading up to the purchase of Links Road 3.1 Ms Marr's background 29 Ms Marr has a degree in architecture. As at September 1998 she was running a building design business trading as Arteschi Designs. In the past she had held a real estate agent's licence and had managed properties professionally. By that time she had also undertaken a number of residential property developments, describing herself as a 'serial property developer for profit'13 and a 'very sophisticated purchaser'.14 She had extensive experience in subdivision and property development. These developments were undertaken with other people, including her ex-husband, Richard Biesiekierski and a friend by the name of Graham Goodson. The developments involved purchasing a property, subdividing it, then selling off the lots, either as a vacant lot or with a house on it, and then dividing the proceeds. 30 As at September 1998, Ms Marr was the sole registered proprietor of a property at 14 Madden Way Brentwood (Brentwood Property).15 At this time, it was her residence. She had purchased the Brentwood Property for the purpose of subdividing it and selling the house at the front and the vacant rear lot. By September 1998, she had nearly 9 Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27]. 10 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court) (Zerjavic). 11 Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court). 12 Zerjavic [74] - [75]. 13 Transcript 16.2.26, page 272 (Marr). 14 Transcript 16.2.26, page 283 (Marr). 15 DTB 1, pages 162 - 163. -- 15 of 253 -- [2026] WASC 301 GETHING J Page 16 completed the works required before it could be subdivided. This involved some alterations to the house and land to create a front lot (Brentwood Lot 1), which was the house, and a rear lot (Brentwood Lot 2), which was vacant land. 31 Ms Marr had originally borrowed money to purchase the Brentwood Property from Advance Bank Australia Limited (Advance). There was a mortgage over the Brentwood Property with Advance securing the sum of $133,200.00 (Advance Mortgage).16 Advance later became St George Bank (St George). By September 1998, Ms Marr had paid down some of this mortgage. 32 The strata plan for the Brentwood Property was not registered until 11 August 1999.17 Ms Marr sold Brentwood Lot 1 to a Dianne Cullen for $157,000. The transfer of title for Brentwood Lot 1 was registered on 2 September 1999.18 She sold Brentwood Lot 2 for $117,500 to another couple. The transfer of title for Brentwood Lot 2 was registered on 3 September 1999.19 33 Ms Marr gave evidence that the sale contracts were entered into in October 1998. At that time, there were delays with both Landgate and the City of Melville in processing subdivision applications. This is why settlement did not occur until September 1999. Ms Marr gave evidence that Ms Mulchay acted for her on the settlements. There is no documentary evidence to support Ms Marr's testimony. Ms Mulchay brought to court a log book that she kept of all settlements. She was not able to locate any transaction in which she acted for Ms Marr in the sale of either lots of the Brentwood Property, either between December 1998 and January 1999 or in August 1999 to October 1999. The stamp duty record on the transfer of land instrument for Brentwood Lot 2 refers to an instrument dated 25 February 1999, suggesting that this was the date of the sale contract.20 Ms Marr rejected this suggestion.21 In the end, it is sufficient for me to find that the two sale contracts were entered into at some stage well prior to settlement in September 1999, and were subject to new titles being issued. 34 Ms Marr leased Brentwood Lot 1 to Ms Cullen at Easter 1999, and moved out to live at Links Road on 2 April 1999. 16 DTB 1, pages 172 - 183. 17 DTB 1, page 101. 18 DTB 1, pages 110 - 111. 19 DTB 1, pages 106 - 109. 20 DTB 1, page 107. 21 Transcript 18.2.26, pages 652 - 655 (Marr). -- 16 of 253 -- [2026] WASC 301 GETHING J Page 17 3.2 Rancore Marr Sale Contract 35 With the development of the Brentwood Property nearing completion, Ms Marr began to look for her next project. She was interested in finding a property from which she could conduct her business, somewhere more professional than her home. She was attracted to Links Road for this purpose. It was also close to her then existing clients and across the road from the City of Melville with whom she had regular dealings. When she first came across Links Road, it had been used for long term residential tenancies. 36 The house on Links Road was built in the 1950s. It was brick and tile. It was on raised limestone footings and had jarrah floorboards. There was a skillion at the rear which enclosed what was the open back veranda and under which there was a laundry and toilet. 37 Links Road had been subdivided by its then owner, Rancore Pty Ltd as Trustee for Rancore Superannuation (Rancore). It was on a corner block with two street frontages. Only the front lot, on which the original house was located, was being sold. When Ms Marr first came across Links Road, the new certificates of title were yet to be issued. 38 On 7 September 1998 Ms Marr signed executed a Contract for Sale of Land by Offer and Acceptance with Rancore to purchase Links Road (Rancore Marr Sale Contract).22 It is evident on the face of the Rancore Marr Sale Contract that there had been some modest negotiation over price. The final terms relevant for present purposes were: (a) the property being purchased was the 'house on 468 sqm of land only at 1 Links Road, Ardross'; (b) the purchase price was $170,000; (c) a deposit of $2,500 was payable within two days of acceptance; (d) the contract was subject to Ms Marr obtaining finance from the 'Commonwealth Bank' in the amount of $120,000 within 15 days from acceptance; and (d) settlement was 10 days from the title becoming ready for dealing but not before 35 days from acceptance. 22 DTB 1, pages 21 - 25. -- 17 of 253 -- [2026] WASC 301 GETHING J Page 18 39 Ms Marr said that at the time the final price was agreed, she intended to change the amount of finance required from $120,000 to $130,000, but did not do so as a result of an oversight. 40 The last clause reflected the fact that, as mentioned, the land purchased was part of a lot being subdivided. On 10 September 1998 Rancore's application for new title subdivision was approved and the new title was created. The land being purchased became Lot 188 of Diagram 96196, Certificate of Title volume 2140 folio 286. This is the land which I refer to as Links Road. 41 At the date of the Rancore Marr Sale Contract, Links Road was zoned residential under the relevant local planning scheme with the City of Melville. The effect of this zoning was that Ms Marr required approval from the City of Melville before she would conduct her business from Links Road. 42 When she entered into the Rancore Marr Sale Contract, Ms Marr's intention was to rent it in the short term to Mr Biesiekierski. This followed a conversation which Ms Marr had with Anne King who was the loans officer at the South Perth branch of the Commonwealth Bank of Australia (CBA). By that time, Ms Marr was dissatisfied with the service she had been provided with from St George and wanted to change banks. Hence, the Rancore Marr Sale Contract referred to her obtaining finance from CBA. Ms Marr was informed by Ms King that, while she had sufficient capital, she needed more cashflow. Ms King suggested she get a lease. In response, Ms Marr entered into a residential tenancy with Mr Biesiekierski. This was on a standard form. It was for 6 months, with an extension for a further six months. More than 25 years later there is no copy of this tenancy agreement in evidence. Ms Marr was challenged about whether she in fact entered into this agreement, but remained firm in her evidence. This is a matter purely within Ms Marr's knowledge. There is no evidence to the contrary. I accept Ms Marr's evidence. 43 Ms Marr entered into the Rancore Marr Sale Contract before having any conversations with Mr Scott about Links Road. 3.3 Mr Scott's background 44 Mr Scott is a professional consulting engineer, with experience both in Australia and overseas. For the last 38 years, he has run his own practice, Scott & Associates, employing varying numbers of -- 18 of 253 -- [2026] WASC 301 GETHING J Page 19 people over that time. Scott & Associates is a business name, and not a separate entity. It has never been the business name of a partnership.23 3.4 Discussions leading up to the Initial Marr Scott Sale Contract 45 Mr Scott and Ms Marr met though working on projects for mutual clients, he as a consulting engineer and she as a building designer. Ms Marr's evidence 46 Ms Marr gave evidence that at the time both she and Mr Scott were doing some work for the same builder on the same property. At the time, Ms Marr was excited about her recent purchase of Links Road, and told Mr Scott of her plans to work from there. At the time of this conversation, she was on her way to speak to a planner at the City of Melville. Mr Scott's office was small, something he complained about to Ms Marr. He was looking for bigger premises. The conversation progressed to Mr Scott suggesting that he should rent some space from Ms Marr. Then:24 I said, 'Well, come on down. I'm going there now. I've got the key.' And he goes in there and he's just enamoured with it. He sees the same vision that I saw. 'This is perfect. Oh my goodness. Can I have naming rights?' 'Yes, of course you can. And how much space you need?' 'I need double what I've got.' I went, 'Great. Well' - and I drew the plans, and I did a pro rata split. Originally, I was going to keep the south side and he was going to go for the north side. But my business was much smaller and I only had one employee whereas his business was much bigger and he had maybe three or four or five - like a receptionist, and a really good… senior engineering draughtsman, and a couple of juniors. They - 50 square metres that was late wasn't enough for them. It was too small. So he - we look at this and we talk excitedly. 47 Ms Marr gave evidence that she then went to the City of Melville and received support from the planner she spoke to about her proposal. 48 At some point, Mr Marr did a sketch setting out how Links Road would be developed to fit both her business, Arteschi Designs, and Mr Scott's business, Scott & Associates.25 In relation to this sketch:26 23 Transcript 17.6.26, pages 1328 - 1329 (Scott). 24 Transcript 16.2.26, page 304 (Marr). See also: Transcript 18.2.26, page 680 ff (Marr). 25 PTB E, pages 35 - 36. 26 Transcript 16.2.26, page 307 (Marr). -- 19 of 253 -- [2026] WASC 301 GETHING J Page 20 GETHING J: So as I understand what was - from this design. The intention, at that stage at least, was that your office area would be 27.5 square metres? MARR, MS: Yes. GETHING J: Scott & Associates would be 46 square metres? MARR, MS: Yes. GETHING J: And then there's about 30 square metres of what I might call common area? MARR, MS: Yes. And then we would pro rata it. 49 Ms Marr gave evidence of a number of discussions about the basis on which they would undertake what was proposed. 50 The conversation evolved to Mr Scott purchasing the property with Ms Marr. Initially, she hoped that she could get Rancore to add Mr Scott to her contract. In the end, they declined to do so. However, Rancore did give Ms Marr some more time to obtain finance. 51 Ms Marr gave evidence that the facsimile of 22 September 1998 (quoted at [55]), which Mr Scott relies on, is a fabrication, though it does contain some words that are genuine. There were other facsimiles which now do not exist.27 However, in cross-examination she conceded that it could be genuine, but doubted it because the dates of the events in it are wrong.28 52 It was put to Ms Marr in cross-examination that she needed to approach Mr Scott to join her in purchasing Links Road as the CBA had rejected her loan application. She rejected this suggestion.29 53 I asked Ms Marr to tell me what she says the agreement was which led to Mr Scott purchasing a half share in Links Road. Her response was:30 MARR, MS: After he contemplated for a day or two, he said, 'I've been really thinking about it and I would really like to get my name back on a title.' And I said, 'Well, how much money have you got?' And he said, 'Well, not enough.' And I said, 'Well, how are you going to make up the difference?' And we came up with a vendor finance 27 Transcript 16.2.26, pages 311 - 313, 392 ff; Transcript 18.2.26, pages 675 - 676, 688 - 689 (Marr). 28 Transcript 18.2.26, page 689 (Marr). 29 Transcript 18.2.26, pages 677 - 678 (Marr). 30 Transcript 16.2.26, pages 315 - 316 (Marr). -- 20 of 253 -- [2026] WASC 301 GETHING J Page 21 deal. So in order to buy any real property, you need 20 per cent cash deposit, plus you need the associated settlement costs. And if it is a property that you're going to develop, you've got to borrow a little bit of extra money to do that … It's talking about - so my books of account, it comes up - the property purchase price is 170. Then, we borrowed an extra $6600 and we had associated settlement costs on the first settlement because Rancore wouldn't let him on to the first - on my deal of about 7000, including white hand certificate, the bank start fees, the - Mr Despain doing the deed of agreement, and so forth, and the stamp duty. And then, the second settlement incurred some more. So there's my cost in, my cost out, then his cost in, and his associated stamp duty. Join that all together. And we agreed everything would be equalised. … - GETHING J: So tell me - so just tell me a little bit more detail about that. MARR, MS: Okay. So my books of accounts say that my property purchase plus the extras add up to about 185 grand. Half of 185 grand is 92 and a half each…. Mr Scott's evidence 54 Mr Scott gave evidence that Ms Marr had mentioned to him in passing that she was purchasing a property and was looking for a partner to help her develop it. The property was Links Road. The property was then a residential property, but there was a possibility of it being zoned commercial at some time in the future. Ms Marr was confident of obtaining the commercial zoning. 55 Mr Scott gave evidence that on 22 September 1998, Ms Marr sent him a facsimile setting out the basis for the two of them purchasing Links Road, and produced what he says is the original.31 Mr Scott provided a transcription, which reads:32 To: Phil Scott fax no: 93648926 From: Diana Marr date: 22 Sept 98 Subject: Proposal for finance as discussed Dear Phil Hope this explains my approach in more detail and look forward to further discussions soon. 31 Exhibit 2. 32 Exhibit 9. -- 21 of 253 -- [2026] WASC 301 GETHING J Page 22 If you buy 50% of 1 Links Road as discussed, then we save the stamp duty and costs of 2nd settlement due in or about Dec 98 or Jan 99. Until then we can rent out the old house (it's no palace now but it sure is convenient) for about $150 a week or $650 a month to help covering holding costs of about $850 per month. Exact costs depend on how much deposit we can each contribute for the settlement on or about 22nd October and these include the stamp duties, settlement agent, loan app fees, rates & taxes, adjustments etc say $6 to 7k. Have already paid $2,500 deposit, therefore we need about another $173,000 all up to do the deal. In addition to this, I reckon that another $10,000 will cover carparking and stormwater if we contract that out, less if we don't. Then we need to fix the roof & porch, paint outside & knock out the odd wall etc & put in an alarm system, say a total of $20k total max. But most of that can surely wait until we get the commercial zoning that we need. Therefore costs are $170 + 7 + 20 = $197,000. Worst case therefore $100k each with you borrowing a max $94k which will initially cost you about $435 p/mth less 50% of any rental that a tenant (Dick?) might pay whilst we are getting our shit together. Let's say that leaves you a shortfall pending Commercial zoning of around $110 a month. Same goes for me but of course we don't need to actually spend the last $20k to do up the office until we have that part in the bag, so that's about $390 a month each less $325 rent each = shortfall of only $60 a month each. Failing the zoning coming through, there is always the other option of doing plans & specs for a yuppies paradise, then selling the whole damn lot again ASAP off the plans, but doubt this will be necessary, given the lobbying to council which is already well underway. When we get the commercial zoning, our interest rates will rise to about 6.8%, which will immediately bump up your repayments on $94,000 (worst case) to $6,500 or so, which is of course a mere $550 a month plus outgoings which simply would not be more than $500 a month between the 2 of us, in other words far less than you are now paying for half the space. But the bad news is that banks need more equity to cover the risk & that comes out of my other properties so we are going to need to work this out. See you soon. Best regards Diana As noted, Ms Marr says that this document is a fabrication. 56 Mr Scott went on to say that Ms Marr had told him that she had already negotiated a price with the vendor of $170,000. He was shown -- 22 of 253 -- [2026] WASC 301 GETHING J Page 23 the Rancore Marr Sale Contract. There would be costs in the order of $7,000 on top of that. 57 As to the actual arrangement, Mr Scott said:33 How was it - what was the actual arrangement, or what were you actually discussing as to how you would obtain the property? What would you pay and what would Ms Marr pay?---We were looking at property as an overall proposition and what it would cost us to get in and purchase the property. And there was a discussion as to whether or not she could arrange for Rancore to accept me on the - the offer and acceptance that had already been made. I'm not sure that's perhaps rewriting the offer and acceptance to include my name on it. Later on, that proved not to be possible. But basically, for her and I to go into the property as equal partners and develop the property, equally sharing in the costs and the work, and for us, the aim was to try and have a commercial office where we were both able to reside there, because I had been renting for some time at that point, and, you know, it was appealing, and this is the area where I worked; I actually did work for the council a fair bit across the road. It seemed like a good proposition, but the proposition was to jointly do this together, and the proposition was that there would be these - these costs to get in and do the deal, costs to bring the house up, costs we expected too, in organising the - you know, the application to change it to zoning, if it's possible. But again, further down in that particular facsimile, it says what it says. If we're not able to achieve commercial zoning on it, we can always do it up and sell it, and the expression on the bottom of that fax was 'yuppy's paradise'; we will sell it as a yuppy's paradise. 58 Mr Scott clarified that his reference to 'reside' was a wrong choice of expression and that the intent was for the two of them to run their businesses from the property. 59 He continued:34 MARTINO, MS: And you referred to a partnership. What actual words - or can you recall the actual words that were used in your discussion in September 1998?---I'm not sure I can recall the exact words, but it - it was definitely just a discussion that we would be equal in this arrangement, and that - and that Diana - Diana's other financial issues were also present. She was working with another property at the time, and coming out of that. The actual words were - if they weren't exactly it, they were - they were very close to it, was we would do this property together, and that we would sort out the costs as we went along; we would be each responsible for half, we would sort out the cost in the wash, and she gave me a pretty good idea of what it would 33 Transcript 23.2.26, page 1115 (Scott). 34 Transcript 23.2.26, page 1116 (Scott). -- 23 of 253 -- [2026] WASC 301 GETHING J Page 24 cost to develop this property: the real estate costs, the stamp duty, etcetera. And what percentage of the property were you going to obtain?---I beg your pardon? What percentage of the property were you going to obtain?---I was always going to obtain 50 per cent of the property. 60 After receiving the facsimile, they signed and offer and acceptance:35 So what happened after you received this facsimile?---When I received this facsimile, then I signed an offer in acceptance to Diana for the sum of 88,500, which was exactly half of the 77 we estimated at that point, although she had purchased the property at 170, we were looking at approximately 177 in immediate costs. So for me just to come in on that, that appeared reasonable, and - but it - and it was exactly 50 per cent of 170, plus 7000 estimated end costs that Diana was suggesting she would be up for, up to this point. So that was what the offer and acceptance was written up for. And the offer and acceptance was written as a 50-50 arrangement. Determination 61 Dealing with the facsimile of 22 September 1998, the original which Mr Scott produced is clearly an original facsimile which has aged and faded. It is compelling evidence that it was an authentic document. Ms Marr did not refer to any independent evidence (aside from her recollection) to suggest that it was fabricated. I regard the assertion that it was fabricated as being implausible. Rather, I find that it is more likely than not that it is an original. 62 I return the issue of what, if anything, was agreed at this point in section 9.7. 3.5 Initial Marr Scott Sale Contract 63 The conversations progressed to the point that on 24 September 1998, Ms Marr and Mr Scott executed a Contract for Sale of Land by Offer and Acceptance.36 I will refer to this as the Initial Marr Scott Sale Contract as it was subsequently amended. The property was described as 'a 50% (or half share) of house (#1) and land at 1 Links Road, Ardross'. As originally executed, the land was described by reference to the certificate for the undivided lot. The initial purchase 35 Transcript 23.2.26, page 1116 (Scott). 36 PTB E, page 15. -- 24 of 253 -- [2026] WASC 301 GETHING J Page 25 price was $88,500, of which $100 was to be paid on acceptance and $5,900 within 15 days of acceptance. The total figure of $88,500 comprised half the value of the property ($85,000), plus 50% of the anticipated settlement costs for the first settlement step.37 64 Clause (iv) dealing with settlement read: Settlement Date: within 30 days of settlement of prior DM/RPL contract or the confirmation of rezoning. So the contract was drafted on the basis that settlement of the Initial Marr Scott Sale Contract would occur after settlement of the Rancore Marr Sale Contract.38 65 The initial Marr Scott Sale Contract was conditional on the rezoning occurring. If the rezoning did not occur, then the agreement would fall away.39 Of this Ms Marr said:40 And we see that from a combination of the settlement date but also the fact that clause 6 - that if the vendor is unable to (indistinct) the proposed rezoning commercial status, or the purchaser is unable to meet clause 1, doesn't pay the $6000, then effectively, the agreement falls away, or you have to extend it?---Correct. So if I have that - so that's your evidence as to what the agreement was at that stage?---Yes. Okay?---… it was very important to Mr Scott. I knew that I could put commercial in there as long as it was an already compliant use. So in my evidence-in-chief, I mentioned what those are: child care centres and anything to do with medical. So do I understand your evidence to be, then, that in the background here was your discussion with Mr Scott that what would happen after the - what was contemplated is that both you and Mr Scott would move your businesses into Links Road and operate out of Links Road?---Yes. And that that could only occur, as a result, because of zoning limitations… once you had a change to commercial status?---Yes. And… usually, it's 60-day turnaround when you put in…a development application. 66 The contract was subject to the purchaser having finance approved. The lender is identified as 'ANZ or other bank (the vendor's 37 Transcript 16.2.26, pages 317 - 318 (Marr). 38 Transcript 18.2.26, pages 684 - 686 (Marr). 39 Transcript 18.2.26, pages 690 - 691 (Marr). 40 Transcript 18.2.26, page 691 (Marr). -- 25 of 253 -- [2026] WASC 301 GETHING J Page 26 bank)'. The last date for approval was 20 October 1998. In the document which I refer to as the Initial Marr Scott Sale Agreement, no amount is shown.41 67 Four special Conditions were handwritten into the in Initial Marr Scott Sale Contract:42 4. The purchaser hereby authorises the vendor to use the $6000 deposit to meet any or all of the costs of settlement for the previously mentioned 'prior DM/RPL contract' for the purchase of Lot 188 (#1) Links Road Ardross, due to be settled on or about the end October 1998. 5. The purchaser has a copy of the abovementioned prior DM/RPL contract and agrees to and accepts all of the conditions therein. 6. The vendor will refund the $6,000 in full, with interest of 5% pa commencing from the date of the prior DM/RPL contract settlement and payable upon sale of this or any other property, as separately agreed in the deed of agreement between Diana Marr and Phillip Scott; if the vendor is unable to achieve the proposed re-zoning of the property to Commercial status, or the purchaser is unable to meet condition 1, the time for which may be extended by agreement. 7. It is the intention of both the vendor and the purchaser to continue to use their best efforts to expedite the proposed re-zoning to Commercial usage of the property as agreed and now in process of review by the Council (MCC). 68 In relation to clause 5, Mr Scott said that Ms Marr had asked that the deposit be used to meet her costs for the prior purchase, including stamp duty, rather than go into the trust account of the settlement agent. Mr Scott accepted that as a condition. 69 In relation to clause 7, Mr Scott said that this was the intention of the parties. 70 Ms Marr confirmed that the Initial Marr Scott Sale Contract recorded that agreement between them at that time, 24 September 1998. She said that it was 'very clearly articulating ... a joint endeavour'.43 More specifically:44 41 PTB E, page 15. 42 PTB E, page 15. 43 Transcript 16.2.26, page 321 (Marr). 44 Transcript 16.2.26, pages 321 - 322 (Marr). -- 26 of 253 -- [2026] WASC 301 GETHING J Page 27 GETHING J: Now, is there - do you say that there is a wider joint endeavour? Tell me more what you're meaning there because the - we've got some clauses there. Are you saying that there's another wider agreement between you and Mr Scott that this is a part or - what are you meaning? MARR, MS: Sure. Well, it's in two parts because it's really - it's an agreement between me and Mr Scott as co-owners and co-partners in this property development, but it's also between Mr Scott as the sole owner of our first replacement tenant. It's always the intention that they would have about two-thirds, nearly three-quarters of the gross of the nett legible area, and we're going to pro rata… the tea room and the toilets and - - - … GETHING J: Right. So am I right in understanding then that what you're saying is that there's two contracts? MARR, MS: Really, there are. GETHING J: So - well, two. There's - the first contract is what you're saying is what we see on the page? MARR, MS: Yes. GETHING J: Then there's a second contract arrangement, whatever? MARR, MS: Yes. GETHING J: By which Mr Scott is going to - and - through his business, is going to rent a… part of… Links Road. MARR, MS: Correct. And - - - GETHING J: And the intention there, the arrangement that you have, am I right in understanding that that's more or less the arrangement we see on the other sketches that we've had a look at? MARR, MS: Yes. GETHING J: So he's going to rent a certain number of square metres, you're going to rent a certain number of square metres… less than his. There's some common area. MARR, MS: Yes. -- 27 of 253 -- [2026] WASC 301 GETHING J Page 28 3.6 Disspain conversation Ms Marr's evidence 71 Ms Marr gave evidence that she spoke to a lawyer, Mr Disspain, about getting a deed drafted for the transaction with Mr Scott. She knew Mr Disspain as he was a friend of Jennifer. Ms Marr had used Mr Disspain some years prior to draft a deed of agreement in relation to a property development she undertook with Mr Goodson. She called Mr Disspain, explained the transaction and asked him to draft a similar deed. 72 Mr Disspain did so, and sent it by facsimile to her. Ms Marr thought he might have also faxed the draft directly to Mr Scott. Ms Marr has been unable to locate a copy of this draft deed. 73 As to what was recorded in the draft deed:45 That it was a joint venture, I think, he called it. Property development to create commercial offices for Diana Marr, Arteschi Designs, and Phillip Scott of Scott & Associates. And then, it sort of went into the things like how much money I had put down, that we were — well, I had imagined we were friends. I was mistaken, that there was no presumption of advancement because I wasn't — he was in a de facto relationship with someone else, and it's not — it's not just, suddenly, we will just go and buy a property together. It's got a commercial basis, which is evidenced by the reference to the deed of agreement in the contract. 74 Ms Marr said that the deed covered the issue referred to in clause 6 of the Initial Marr Scott Sale Contract. She said that Mr Disspain gave her the draft deed after this contact was first signed. 75 Ms Marr said that she went to Mr Scott's office in Ardross and spoke to Mr Disspain using a speaker phone from Mr Scott's office. Mr Disspain read out the terms. As to what he said:46 MARR, MS: Yes. And so Chris starts reading, and he says, 'This is about a joint venture,' I believe he called it, and that there is no presumption of advancement and these are the financial arrangements and this is the capital that Ms Marr is providing and that all expenses will be equalised and that until such time as that equalisation occurred that Mr Scott would hold a portion of his 50 per cent on the title on trust, or constructed trust, for me. Until he finished equalising, he had not equally contributed. 45 Transcript 16.2.26, page 338 (Marr). 46 Transcript 16.2.26, pages 339 - 341 (Marr). -- 28 of 253 -- [2026] WASC 301 GETHING J Page 29 … GETHING J: So do I understand your evidence to be that the — okay. When Mr Despain — did Mr Despain read out the entirety of the - - - MARR, MS: Yes, he did. And - - - GETHING J: He did. Okay. So just when he did that, was what he read out in your — did that accurately capture from your perspective what you thought the actual agreement was that you had with Mr Scott? MARR, MS: Yes. GETHING J: Okay. I understand. MARR, MS: What we were going to do was, rather than force him to put in the whole 40 plus that I put in, because he'd never catch up, that we would add my contribution and his contribution, and then we'd add that together and divide by two and there'd be a gap between what I put in and what he put in was his personal loan. It was a personal loan… from me to him because he couldn't afford to buy it without me. … GETHING J: So in terms of - so we've got the Despain agreement. Now, tell me what - what happened with the agreement that Mr Despain - - - MARR, MS: Okay. Mr Despain read through it very carefully and we're - we're sort of talking about each - but about four or five pages double-spaced. And it was really quite elegant, and very succinct, and it basically said he owed me a debt that had to be repaid. And until he repaid it, I didn't have to pay anything because his payments were covering my - I borrowed money out of Brentwood - - - GETHING J: So I'm just trying to move you on in the chronology. MARR, MS: Sure. GETHING J: What then happened? How did that telephone call end? MARR, MS: Okay. Mr Despain said, 'I advise you, Mr Scott, that I act for Ms Marr. I am Ms Marr's solicitor and I urge you to get independent legal advice. And he went 'No. I love it. I just understand it so completely. You explained it so well, I don't need independent legal advice.' And that's how it ended. And that is when he gave me the balance of the - it's around about the time he gave me the balance of the - once he was happy with that deed and I was happy with this deed. 76 Ms Marr said that the deed was never signed. -- 29 of 253 -- [2026] WASC 301 GETHING J Page 30 77 Ms Marr reiterated in cross-examination that the deed was to provide for Mr Scott to hold part of his 50% interest on trust.47 78 In cross-examination, Ms Marr said that once Mr Scott had agreed to the deed of agreement prepared by Mr Disspain, the decision was made to settle simultaneously. As to its terms, she said:48 Well, I don't - what I'm - what I'm just - I'm trying to understand it is your recollection?---My recollection is that Chris Despain - it was after Chris Despain read through. It was only about five pages, this deed - - - Yes?--- - - - and it - it set out the - our title, what we agreed to, and he was holding a part of it on constructive trust for me because of my massively greater contribution of over 40. 79 In cross-examination, Ms Marr rejected the suggestion that Mr Scott had never met nor heard of Mr Disspain until the trial. 80 Counsel for Mr Scott drew Ms Marr's attention to the fact that the deed of agreement which she says Mr Disspain drafted was not referred to in the agenda for the Boatshed Meeting (see section 7.16).49 Mr Disspain's evidence 81 Mr Disspain practiced as a solicitor in Western Australia in the 1990s. He drafted a deed of agreement for Ms Marr in connection with a property purchase between her and a Mr Goodson. 82 Mr Disspain gave evidence that in what he thought was 1998, Ms Marr asked him to draft a similar deed of agreement for a property at 1 Links Road, Ardross between her and Mr Scott. As to what it was to contain:50 Okay. And what else can you remember about that?--- So…that deed was very similar to the original, to the deed I did in…'93, and it was based on the terms, obviously, that I was given - told to - to draft it to by - by both parties. It was a… clear…a business deed, a business arrangement. … I suppose the key terms were that…it was a vendor finance arrangement where Diana Marr would sell a portion of the land to Mr Scott. It required Mr Scott to repay…the financial shortfall… if you will, because the intention was that their contributions would eventually become equal, so the deed anticipated that payments would be … made. It specified roles or, specifically, a role for Diana Marr, 47 Transcript 18.2.26, pages 686, 707, 735 - 737 (Marr). 48 Transcript 16.2.26, page 708 (Marr). 49 Transcript 19.2.26, page 825 (Marr). 50 Transcript 20.2.26, page 1060 (Disspain). -- 30 of 253 -- [2026] WASC 301 GETHING J Page 31 that she had handled the design and the project management, and … she would be paid a fee for that and Mr Scott was responsible for repaying the … vendor finance. It was a clear business arrangement and established that the commercial … arrangement where the initial unequal contributions were not a gift or anything like that but rather…a loan to be repaid. There was a provision, also, that both parties should pay interest on their respective loans and I sent that to…again, my recollection is in October … 1998, I sent both of the parties that deed by facsimile. And I recall having a - a teleconference with both of them and telling Mr Scott that he should get his own legal advice because I was doing this for Diana Marr, not for him, and at the end of that call, as far as I was concerned, the arrangement had been agreed and that's, effectively, my recollection. 83 Mr Disspain could not recall any figures. 84 In cross-examination, Mr Disspain clarified that: (a) the initial instructions came from Ms Marr; (b) he did not know whether Mr Scott went and obtained his own legal advice; (c) he now has no record of the draft deed; and (d) he did not know whether the deed was ever signed. 85 In cross-examination, Mr Disspain was also taken to the Initial Marr-Scott Sale Contract. He could not recall seeing this contract at the time. He was asked about clause 6: 51 There was a condition on that contract that Ms Marr would refund the deposit of 6,000 in full with interest of five per cent per annum commencing from the date of the prior Diana Marr-Rancore Pty Ltd contract settlement, and payable upon sale of this or any other property as separately agreed in the deed of agreement between Diana Marr and Philip Scott. So this was a deed of agreement, a finance but finance of the $6,000 at five per cent. Is it possible, given the length of time that has transpired, that that may be the deed of agreement that you are referring to?---No. I mean, I am very clear about what I did. I don't know anything - anything other than that. I can't comment about what - what is in - the in - the in the offer and acceptance and what that is referring to. But that certainly does not form a part of what I drafted. 86 He also confirmed that the arrangement was a commercial one:52 51 Transcript 20.2.26, page 1065, see also pages 1067 - 1068 (Disspain). 52 Transcript 20.2.26, pages 1065 - 1066 (Disspain). -- 31 of 253 -- [2026] WASC 301 GETHING J Page 32 As I have - as I have said, I can remember, it was, you know, clearly a commercial arrangement. And I can remember that there were unequal - unequal contributions, and they were - there was an intention that the deed terms were that the contributions would be equalised. And what do you mean just by 'the contributions would be' and what do you mean just by 'the contributions would be equalised'?---Well, that - that it was intended that it was - as I said, it was intended it was a commercial arrangement. No - no gift was given, so therefore, the parties would - the parties would end up in - in, you know, the position of - of equality. Right. So, eventually, if one party put in a bit more at the end of it, they would have to be equal when they sold the property, say, for - - -?---That's not - that - that's my - - - Sorry. So if one - yes. Sorry. You go?---Sorry. Let me go - let me - let me say - let me say it again so that we're clear. My recollection is that - is that there was a clause that said that Diana Marr was going to do the design and was going to be paid a project management fee, that Mr Scott was going to repay his vendor finance, that it was a commercial arrangement, and that even though the contributions were unequal, the - the loan - it was a loan, effectively, which was to be repaid. So in other words, the contribution from one party to the other was a loan that was going to be repaid, and that both parties were going to pay interest on any respective loans that they took out - each - each took out, so that there was no, you know, agreement other than - other than that. So that's - that's my recollection. I can't really string it together any better than that because, you know, that's - that's really all I can remember. 87 Mr Disspain did not accept the proposition put to him by counsel for Mr Scott that Mr Scott had never met or heard of him in October 1998 and that there was never a teleconference. 88 Mr Disspain was also cross-examined on his interactions with Jennifer, whom he confirmed he knew. Counsel for Mr Scott explored whether these communications suggested to Mr Disspain the evidence he may be expected to give. I am not persuaded that there was anything in the communications between Jennifer and Mr Disspain, or Ms Marr and Mr Disspain, which impacted either the honesty or reliability of his evidence. Jennifer's evidence 89 Jennifer primarily gave evidence in relation to a meeting on 16 September 2013 at the Boatshed Café in South Perth attended by her, Ms Marr and Mr Scott (Boatshed Meeting). I deal with the -- 32 of 253 -- [2026] WASC 301 GETHING J Page 33 Boatshed Meeting in section 7.16. However, Jennifer gave evidence that at this meeting that Ms Marr was upset that the 'deed of agreement' that would govern how they were going to conduct the property was never signed.53 90 In cross-examination, Jennifer said she knew Mr Disspain and reached out to him last year on behalf of Ms Marr. Counsel for Mr Scott explored whether these communications suggested to Mr Disspain the evidence he may be expected to give. I reiterate that I am not persuaded that there was anything in the communications between Jennifer and Mr Disspain which impacted either the honesty or reliability of his evidence. Mr Scott's evidence 91 In relation to clause 6 of the Initial Marr Scott Sale Contract, Mr Scott gave evidence that there was no specific deed of agreement or that, if there was, it only related to this $6,000 deposit. 92 Mr Scott gave evidence that there was never any deed of agreement. He was never shown one, nor did he ever sign one. He has never met Mr Disspain, and first heard of him recently in the context of these proceedings. He does not believe he ever had a conversation with Mr Disspain, certainly not one in his office over speakerphone. 93 In cross-examination, Mr Scott reiterated that he cannot recall ever having had a conversation with Mr Disspain.54 Factual findings 94 I accept Mr Disspain's evidence as being honest and reliable, and use that as the basis for my findings. This in turn means I regard Ms Marr as having the (slightly) more reliable recollection. Specifically, I find that: (a) some years prior to 1998, Mr Disspain had drafted a deed for Ms Marr in connection with the purchase of a property by her and Mr Goodson; (b) after having signed the Initial Marr Scott Sale Contract, Ms Marr asked Mr Disspain to draft a deed for that transaction based on the Initial Marr Scott Sale Contract; 53 Transcript 20.2.26, page 1011 (J Marr). 54 Transcript 17.06.26, page 1349 (Scott). -- 33 of 253 -- [2026] WASC 301 GETHING J Page 34 (c) Mr Disspain did so, and sent a copy by facsimile to at least Ms Marr; (d) Ms Marr and Mr Scott had a telephone conference with Mr Disspain from Mr Scott's office; (e) Mr Disspain read out the terms of the draft deed; (f) the draft deed made it clear that the transaction was a business or commercial arrangement; (g) Mr Scott's contribution was to be less than that of Ms Marr; (h) Ms Marr was to provide vendor finance; (i) the intention was that their contributions would eventually become equal; (j) Mr Scott would be responsible for repaying his vendor finance; (k) both parties were going to pay interest on any respective loans they took out; (l) the unequal contribution was not to be construed as a gift, rather a loan that had to be repaid; (m) in addition, Ms Marr was to be paid a design and project management fee; (n) the draft deed did not address the issue in clause 6 of the Initial Marr Scott Sale Contract; (o) Mr Disspain told Mr Scott that he should obtain his own legal advice; and (p) the draft deed was never signed. 95 I don't accept Ms Marr's evidence that the draft deed also provided that Mr Scott would hold a portion of his 50% share on constructive trust for her until he finished equalising. This goes beyond what Mr Disspain could recall. In this regard it is significant that Ms Marr did not refer to Mr Scott holding his interest on any form of trust in the agenda to the Boatshed Meeting in 2013 meeting (see section 7.16). Rather, I find that Ms Marr's recollection has been influenced by becoming aware of the concept of a constructive trust either through the -- 34 of 253 -- [2026] WASC 301 GETHING J Page 35 legal studies she subsequently undertook or later conversations with her lawyers. 96 Nor do I accept Ms Marr's evidence that Mr Scott 'loved' the draft deed and was happy to sign it. If this really was the case, Mr Scott would have in fact signed the draft deed. Or, if it was as significant as Ms Marr now suggests, she would have insisted he sign it before agreeing to vary the Initial Marr Scott Sale Contract (see section 3.8). In these circumstances, Ms Marr's evidence is not plausible. It is more likely than not that Mr Scott did not accept the terms of the draft deed. Rather, it, and the conversation with Mr Disspain generally, became another aspect of the ongoing discussion between the two of them as to the basis on which they were going to own Links Road. 3.7 Events after the Initial Marr Scott Sale Contract 97 Mr Scott paid the $100 deposit on 24 September 199855 and the remaining $5,900 on 14 October 1998.56 98 Ms Marr gave evidence that it was the intention from 24 September 1998 right up to the first week in October that it was going to be a subsequent settlement. She said that to re-zone from residential to commercial requires 30 days advertising, so the usual time process is 60 to 90 days.57 99 The idea of a simultaneous settlement and a joint loan appears to have come from a conversation which Ms Marr and Mr Scott had with the CBA. It was suggested that it would be cheaper to get finance once and settle once.58 3.8 Final Marr Scott Sale Contract 100 At some point after 24 September 1998 the Initial Marr Scott Sale Contract was varied by the parties (Final Marr Scott Sale Contract). The original is in evidence.59 It bears the imprint of having been assessed for stamp duty. 101 It is common ground, and apparent on the face of the documents, that two amendments were: 55 Exhibit 14; Transcript 24.2.26, page 1195. 56 Exhibit 15; Transcript 24.2.26, pages 1195 - 1196 (Scott). 57 Transcript 16.2.26, page 320 (Marr). 58 Transcript 16.2.26, pages 327 - 331 (Marr). 59 Exhibit 13, with a copy at DTB 5, pages 28 - 29. -- 35 of 253 -- [2026] WASC 301 GETHING J Page 36 (a) in clause (iv), to reduce the purchase price by $3,500 to $85,000; and (b) in clause (vi), for the settlement date to be 'simultaneously with the settlement of the prior DM/RPL contract'. Next to each handwritten amendment is an initial. Both Ms Marr and Mr Scott accept that they made these amendments. 102 There are then two further amendments to the finance clause: (a) the latest date for finance is changed from 20 October 1998 to 30 October 1998 by changing the '2' in 20 to a '3'; and (b) adding next to the printed text of 'Amount of Loan' the text: '$120,000 Joint Loan with Diane Marr'. 103 Again, each amendment is initialled. To me, the initials look similar to initials referred to in [101] (though I am no handwriting expert). 104 On the second page, there was no change to the special conditions I have quoted at [67], but at the bottom of this page the purchaser's conveyancer was amended from 'to be advised' to 'Anne Mulchay'. 105 Mr Scott's evidence was that: (a) he has no recollection of when the amendments were made, though he thought they were made around the time of settlement; (b) he had no real recollection of the sequence in which the amendments were made; (c) one of the sets of initials is his (which he identified); and (d) the handwriting in clause (vi) (settlement) was not his. 106 Ms Marr's evidence was that:60 (a) the correct certificate of title number must have been inserted after 12 October 1998, which was when she got the numbers for dealing, and she thought this was done at a meeting with Ms Mulchay shortly before settlement; 60 Transcript 16.2.26, pages 374 - 376 ff; Transcript 18.2.26, pages 696 - 698 ff (Marr). -- 36 of 253 -- [2026] WASC 301 GETHING J Page 37 (b) the adjustment to $85,000 was agreed about 9 November 1998 when it was agreed that they would do a simultaneous settlement, which she thought was done in Ms Mulchay's office shortly before settlement; (c) the blue text 'Joint Loan with Diana Marr' is a fabrication; and (d) the initials at the bottom of the page are not hers. 107 The stamped original of the Final Marr Scott Sale Contract is in evidence. I do not accept Ms Marr's evidence that the Final Marr Scott Sale Contract was either in different terms or was in terms that she did not agree to. There is no contemporaneous materials or objectively established facts to support her contention. In any event, the terms which she contends that she did not agree to went to finance and are not material to the determination of the issues in dispute in this trial. 108 I find that the Final Marr Scott Sale Contract is that contained in exhibit 13. 3.9 Initial applications for loans Mr Scott's evidence 109 Mr Scott gave evidence that at this time he was banking with ANZ National Bank Limited (ANZ). This was why there was a reference to ANZ in the Initial Marr Scott Sale Contract. 110 Mr Scott commenced preparing some documentation about his then current financial position in order to obtain finance. This included his tax returns up to the point they were available. 111 He recalled meeting with a couple of banks, including St George, whom he knew that Ms Marr was then banking with. 112 Mr Scott gave evidence that Ms Marr had sent him a draft facsimile to Bruce Mercer at St George Bank dated 28 October 1998. He produced the original, it is faded, but legible.61 He made some handwritten amendments. Leaving aside the header information, the facsimile reads (with the amendments noted with additions in italics and deletions struck through): Please find following confirmation from Phil Scott that he has today waived part of clause (iv) of his current offer dated 24th Sept 1998 to 61 Exhibit 3. -- 37 of 253 -- [2026] WASC 301 GETHING J Page 38 purchase 50% of 1 Links Road Ardross. Clause (vi) of the contract of sale to Scott refers to both the prior settlement of my contract to purchase that property from Rancore Pty Ltd and confirmation of re-zoning of the property from residential to commercial. Thus the offer is now subject only to finance from either St George or another Bank. Settlement will now take place simultaneously with the proposed settlement of my contract with Rancore as soon as possible after finance approval from our joint financier. Please assess a revised finance application on the following basis: • an increase in my current mortgage to St George Bank, from $135,000 to $185,000 (the additional $50,000 is intended for the balance of the deposit for Links Rd) • joint finance of $120,000 for myself & Phil Scott to secure Links Rd. I intend to occupy the property until the re-zoning is confirmed, at which time we will convert to a commercial loan. I will also apply for a joint loan with Phil through my bank, the Commonwealth or his, the ANZ, if you are unwilling to consider that second loan. Phil's financial statements are available (which he brought to our appointment on Friday 2nd Oct). These figures [can] will be verified by his accountants Saugh Woodgate & Miller, within the next 2 days. Are you able to assist? Thankyou very much for your efforts on my behalf to date. 113 Mr Scott said that he could have gone to an appointment with St George, but had not clear recollection of doing so. 114 Attached to the facsimile is a copy of the first page of the Initial Mar Scott Sale Contact, with four amendments: (a) the purchase price changed to $85,000; (b) the settlement clause amended to read: 'simultaneous settlement of prior DM/PL contract'; (c) the notation 'N/A' adjacent to the reference to the lender being 'ANZ or other bank (vendor's bank)'; and (d) next to the amount '$120,000 joint loan with Diana Marr'. Each of these amendments is initialled. -- 38 of 253 -- [2026] WASC 301 GETHING J Page 39 115 As to why there was an amendment to the price, Mr Scott stated:62 And what were the amendments?---The amendment was to change the price from 88,500 to 85,000. And why was that?---It was because that was our new agreement or what I was prepared to accept as well, that I would be purchase it for 170. I would go in as a 50 per cent owner at 85,000, half of 170 and we would all sort out all the end costs together afterwards. What do you mean by end costs?---There's these costs were no longer $7000. There were bits and pieces all over the place but I mean the stamp duties paid to get in. I mean the - by her and by myself. I mean the settlement agent's costs. Right?---The postage and the sundries, whatever the settlement is to add 116 Mr Scott went on to give evidence that he believed that Ms Marr did not find the finance negotiated with St George to be satisfactory. She determined that the CBA was the best option. She asked Mr Scott if he would consider CBA for his finance as well, so that they could make a joint application. The amount they were going to borrow was $136,000. This was, to his understanding, 80% of the value of Links Road, being $170,000. The sale did not settle prior to 31 October 1998 as they did not receive bank finance in time. 117 In cross-examination, Mr Scott said that Scott & Associates never signed a lease over Links Road.63 Ms Marr's evidence 118 Ms Marr gave evidence that she never sent any facsimile to Mr Mercer. The first time she ever saw the document was when it was discovered by Mr Scott in the court process. She disputes the authenticity of the facsimile of 28 October 1998.64 119 Ms Marr gave evidence that, initially, she had approached CBA for a loan to purchase Links Road. She had a line of credit with St George, secured over the Brentwood Property, which she was going to use for the balance of the purchase price. However, CBA offered her a cheaper interest rate to both refinance the loan over the Brentwood Property and finance the purchase of Links Road. This would involve 62 Transcript 23.2.26, page 1121 (Scott). 63 Transcript 17.6.26, page 1333 (Scott). 64 Transcript 18.2.26, pages 665 - 666, 668 - 669, 692 - 695 (Marr). -- 39 of 253 -- [2026] WASC 301 GETHING J Page 40 using both properties to secure both loans. She was happy to consider this approach as she was dissatisfied with St George. 120 Ms Marr gave evidence that CBA required Mr Scott to provide financial information to verify his income. He was not able to do this by 20 October 1998, causing settlement to be deferred.65 This gave her a liability for penalty interest.66 Eventually, the income verification was provided by Scott & Associates entering into a lease of Links Road. Scott & Associates signed a lease for Links Road. It was a commercial lease at $100 per square metre for about two thirds of the gross lettable area. The lease was given to CBA to verify income. It is not in evidence.67 121 She said that by 28 October 1998 she was really angry with Mr Scott as, because of him, she was late in settling.68 She considered settling on her own.69 She did not need Mr Scott financially, or in any other way, until she lost her tenant because of the vandalism.70 122 Then the vandalism occurred (see section 3.10). Determination 123 Beginning with the facsimile of 28 October 1998, the original which Mr Scott produced is clearly an original facsimile which has aged and faded. Again, Ms Marr did not refer to any independent evidence (aside from her recollection) to suggest that it was fabricated. I regard the assertion that it was fabricated as being implausible. Rather, I find that it is more likely than not that it is an original. 124 However, there was no evidence that this facsimile was ever sent to Mr Mercer. The evidential value of the 28 October 1998 facsimile is that it is a document which I find to be authored by Ms Marr which potentially contains admissions against her interest. 125 Ms Marr and Mr Scott ultimately applied to CBA for the joint finance for Links Road. At the same time, Ms Marr applied to CBA for a refinance for her existing borrowings to St George secured by the Brentwood Property to assist her with settling the purchase of Links Road under the Rancore Marr Sale Contract. 65 Transcript 16.2.26, page 328, pages 704 - 707 (Marr). 66 Transcript 18.2.26, page 713 (Marr). 67 Transcript 16.2.26, page 368 (Marr). 68 Transcript 16.2.26, pages 332 - 335 (Marr). 69 Transcript 16.2.26, pages 367 - 368 (Marr). 70 Transcript 16.2.26, pages 367 - 368 (Marr). -- 40 of 253 -- [2026] WASC 301 GETHING J Page 41 126 I find that the reasons why settlement did not occur before 31 October 1998 was because of delays in Mr Scott providing his financial information. To this extent, Ms Marr's explanation is inherently plausible in light of the evidence as a whole. However, I accept Mr Scott's evidence that Scott & Associates never provided a lease - you cannot lease a property to yourself. 3.10 Vandalism Facts which are not in dispute 127 On 31 October 1998, Links Road was vandalised (Vandalism). 128 The extent of the Vandalism is described by Ms Marr as follows:71 Every pane of glass in that house except the bathroom mirror was broken. I think the glass in the stove door wasn't broken. Everything else was just trashed. And the toilet had an incendiary device put into it and it exploded. Apparently, you get newspaper, and you put some metal on it, and you set fire to it, and it blew the China pan off the floor and cracked the first part of the vitreous. It's the old terracotta pipes. The electrical meter board was damaged. The wall lights and the ceiling lights were ripped from the walls. There was inky pen and spray paint - so oil based graffiti and it was disgusting. It was vulgar images and vulgar words. The MFR word. Pictures of genitalia. The C word. The F word. There was vomit all over the carpets in the two bedrooms. There was every light fitting, every window treatment, every fly screen - everything was just trashed. It was unfit for human habitation. Mr Scott's evidence was to the same effect.72 129 Ms Marr and Mr Scott then agreed that it was the vendor's responsibility and that they would be looking to the vendors to repair the property. 130 Ms Marr took the lead in negotiating with the vendor's real estate agent. She kept Mr Scott informed of the progress of these discussions. 131 It soon became apparent that the damage was not covered by insurance as the house had been vacant for longer than allowed in the insurance contract. 71 Transcript 16.2.26, page 342; Transcript 18.2.26 pages 720 - 721 (Marr). 72 Transcript 23.2.26, pages 1125 - 1126 (Scott). -- 41 of 253 -- [2026] WASC 301 GETHING J Page 42 Mr Scott's evidence 132 It is instructive to begin with Mr Scott's evidence. 133 Mr Scott gave evidence that he received a copy of a facsimile dated 3 November 1998 from Ms Marr to Mr Mansour.73 This document, he says, was provided to him by Ms Marr at the time. The document reads: I hereby advise that late yesterday afternoon, following my conversation with you, I visited 1 Links Road Ardross to inspect the damage to the property caused by vandalism. I was absolutely shocked and horrified by the extent of the damage evident, and pass on my heart-felt condolences to both yourself and most particularly to the vendors, who must be extremely distressed by this latest turn of events. I understand that they are already under extreme duress and must be devastated by this senseless and destructive offence. I really do hope they catch the rotten @#%&!s who did this terrible thing. I am however, equally concerned for my own situation. The Commonwealth Bank's Valuer is about to inspect the property to make a market assessment, and am truly horrified at the thought of what he will make of this absolute disaster area. Should I contact the Bank, or would it be better if you did this on my behalf? I have already advised my Settlement Agent, Anne Mulcahy of the current situation. As a matter of urgency, please advise me via my mobile phone (no: 0419 916 846) of what steps the Vendors & their Insurance Company intend to take to assess and rectify the damage; and a probable time- frame for this process. I am very alarmed by the fact that the settlement will now be deferred even longer. As you know, I had every intention of immediately moving into the property to set up a home office from which to operate my business Arteschi Designs. I don't know what to do; please help! 134 Mr Scott then gave evidence that he received a draft of a facsimile dated 4 November 1998 from Mr Marr to Mr Mansour. It was sent to him by facsimile and he produced the original.74 He scribbled through the first two paragraphs and some other words. He also tendered a transcription, which is as follows:75 To: The Manager Ray White Applecross 73 DTB 1, page 31. 74 Exhibit 4. 75 Exhibit 10. -- 42 of 253 -- [2026] WASC 301 GETHING J Page 43 Attention: Nick Mansour Fax no: 9316 1660 From: Diana Marr Subject: Quotations for restitution of damage to 1 Links Road, Ardross: 1 page total Dear Nick I hereby confirm today's verbal advice to you of the quotations received to date for the repair of the damages to 1 Links Road. I also confirm my intention to negotiate the fairest possible settlement with the vendor to repair the damage to the property. Furthermore the mortgage papers for me are ready to sign tomorrow pending settlement at the earliest possible time next week. (2 paragraphs with scribble) I have arranged quotations from a number of reputable trades people and suppliers and below is a summary of the advice received to date: (line though) Repair and repaint all affected walls, doors and lounge room ceiling $2,810.00 Replace the broken glass kitchen cupboard and mirrors (approx.. 30 panes of glass) $1,200.00 Replace carpet in lounge, dining, bed 1 (cheapest carpet on existing underlay) 2 quotes $970.00 Replace taps to the bathroom, clear blocked WC (subject to confirmations 5.11.98) $250.00 Replace 4 broken or damaged light fittings to lounge, dining, bed 1, 4 @ $50 each $200.00 Replace damaged flyscreen to dining, lounge and bed 1 $60.00 Electrician to fix new fixture to dining room (live exposed wires to this room only) $50.00 Clean up broken glass, beer cans, general rubbish 3 hrs @ $18/hour $34.00 Repaint damaged balustrade to front verandah nil charge Replace damaged window treatments to lounge, dining, bed 1 and 2 nil charge -- 43 of 253 -- [2026] WASC 301 GETHING J Page 44 (1 line unable to be read) Price of all of the above mentioned iteMs without any builders or managers margins 135 Mr Scott explained:76 … the [fax] is really just what we wanted to do, which was to quickly lay out our estimate of the costs we had put together, mostly put together and assembled by Diana, and - and give them a ballpark figure of the work that we were - we were looking at to rectify the damage and, at that point, we can see a way forward if we can negotiate a price with them for the damage, and we don't have to go through a much more torturous route which would be waiting and insisting that they rectify the house. … The list came together by Diana and I discussing the work. But the actual figures are what Diana's put in and sourced. However, both of us have gone and sourced glass quotations and I - I recall we had two different glass prices, but they were pretty similar. Now, I can't recall exactly what they were. Presumably $1,200 was the - the lesser of the two. So that was the - all the broken glass in the property, because it says about 30 panes of glass, is that right?---I understand that was - replace all the broken glass in the property. There was a slight difference of opinion Diana and I had a little later on, when we get to that, regarding the coverage of that glass quotation. … [The] price of all the above-mentioned items are without (indistinct) manager's margins. But in terms of (indistinct) it was really a negotiating point. This is the ballpark value of the work. There had been some other transmissions of discussion prior, and other estimates prior to this one. This was one of them. But it was a comprehensive list. So do I understand that to be a comprehensive list of what and a ballpark of how much?---Yes, your Honour. 136 Mr Scott then said that it was his understanding that the facsimile was sent to Mr Mansour. 76 Transcript 23.2.26, pages 1130 - 1131 (Scott). -- 44 of 253 -- [2026] WASC 301 GETHING J Page 45 137 Mr Scott then gave evidence that he received a copy of a letter dated 9 November 1998 from Ms Marr, which was a letter from her to Mr Mansour. It reads:77 Dear Nick, I reject both the unacceptably low verbal offers from the vendor, conveyed by you to me, to settle on the property 'as is', in lieu of full & proper restitution of the substantial damage to the house caused by vandalism whilst the property was held at the vendor's risk pending settlement. The first verbal offer of $2,000 was made in your office during our meeting at 5pm on Friday 6th Nov and was witnessed by Phillip Scott. The second verbal offer of $3,000 was made during a telephone conversation on Saturday 7th Nov and reported by you to remain open only until 12pm today, Mon 9th Nov. I have requested that you confirm the above offer in writing, because the contract requires that all notices be made in writing and delivered in the prescribed manner. I refuse to act on any verbal offers given my understanding following advice from you of the current threats to repudiate the contract and other unspecified legal action by the vendor implied in your reporting to both Phil Scott & myself of the vendor's attitude to the current contract. I require confirmation of the offers because they demonstrate that the vendor is aware that not only is the contract still valid but also that the vendor is responsible for restoring the property to the state it was in when I inspected it prior to making my first offer to purchase. I hereby confirm the points raised during our telephone conversation of yesterday (Sun 8th Nov), that you please arrange, as a matter of urgency, (before 4pm Wed 11th) all of the following: 1. Written confirmation from yourself, on a Ray White Applecross Letterhead, that the above-mentioned facts are an accurate summation of the telephone conversation to which I refer. In addition, please also confirm in writing your understanding as verbally relayed to me by yourself (Sat7th Nov) that the offer of $3,000 from Rancore is final and non-negotiable and that failing my acceptance of this verbal offer before 12pm today, Mon 9th Nov; that the vendor intends to commence unspecified legal action against me or attempt to repudiate the now unconditional contract. Please also confirm if, as you have claimed you have been instructed by the vendor or the vendor's legal representative not to confirm anything regarding the nature of 77 DTB 1, page 54. -- 45 of 253 -- [2026] WASC 301 GETHING J Page 46 the verbal offers to accept the property 'as is' presented to me by you. 2. A written and duly stamped (with their common seal) confirmation from Rancore Pty Ltd stating their verbal offer as relayed by you to me during one of our numerous recent telephone conversations (Sat 7th Nov) that Rancore Pty Ltd is prepared to offer me the sum of only $3,000 (three thousand dollars) to accept a settlement of the current contract to purchase the property at 1 Links Road Ardross in the condition that it is now found and that any prescribed late penalties which may apply in accordance with the contract shall also be waived. 3. As an alternative to the offer outlined above, a more fair & reasonable monetary offer from the vendor or notification by the vendor of any intention to carry out the repair work to my satisfaction prior to settlement and the approximate time required by them to complete same, should they choose this option. Please deliver confirmation of the above to either address: PO Box 1269, Booragoon WA 6154 within 3 (three) working days and have it posted to arrive in my post box no later than the morning of Thursday 12th November 1998. The letter then concludes with Ms Marr's name (though not signature) and the date of 9 November 1998. 138 Mr Scott confirmed the accuracy of the first sentence of the second paragraph of the 9 November letter as to the meeting on 6 November 1998. 139 As to what finally occurred, from Mr Scott's perspective:78 MARTINO, MS: Yes. Sorry. Yes. Sorry. Thank you. And do you know how the vandalism, what was agreed ultimately?---The situation of the vandalism, it was ultimately agreed that they and we would proceed with the - the sale, but with an adjusted price that would reflect the vandalism damage. What was contentious was the discussions that went on in trying to determine the price of the value of the damage. And they were initially offering much smaller amounts of two or three thousand. There was some correspondence on that. And Diana and I had entered the discussions, I think, starting somewhere around 12,000 as a reflection of costs and builder's margins included. And we thought they were up against that price. They were threatening to terminate the sale at that point. They didn't want to continue it unless it was a very low price. And at the point where settlement approached, it was just 78 Transcript 23.2.26, pages 1131 - 1132 (Scott). -- 46 of 253 -- [2026] WASC 301 GETHING J Page 47 before the weekend. The settlement was just after the weekend on a Tuesday or something, the settlement that did occur, and I was not sure whether it was going to go through, because I wasn't privy to the final negotiations. I expect Diana was. And I understand they gave us some money back, but I actually wasn't sure and wasn't told by Diana what the final amount was that we would receive back for the damage. 140 Mr Scott gave evidence that at the time of settlement, he was not aware of the final figure that had been settled upon by Ms Marr and Rancore.79 Look, I was expecting a vandalism price in the - in the range that had been negotiated, although I wasn't aware of the final figure that had been settled upon by Diana or Rancore. And so I was expecting a final price of 5000, 7000, thereabouts. That - that was within the expected range. And then I wasn't sure in what form the discount had come in, whether it was a settlement check that Diana had just failed to bank in Streamline 1 when she received it, or whether it was an adjustment on the price? I haven't been able to add it up and determine what I consider that - how that figure was arrived at until later, now, with all the documentation and everything in front of us, and the work we've done on it in recent months. And can you recall at the time of settlement any information being said - sorry - anything being said about any separate cheques at settlement, any cheques to Diana or from Rancore?---Not specifically, no. And - - -?--- - - - Don't know. I don't believe that came about. I don't believe I was informed. I was waiting to find out 141 For completeness sake, I note that there was a further letter purporting to be from Ms Marr to Mr Mansour dated 5 November 1998. It refers to a meeting and subsequent telephone conversation the preceding day. However, it is marked 'without prejudice'. It is not the case that both Ms Marr and Mr Mansour have consented to the tender of this document.80 Accordingly, I declined to allow counsel for Mr Scott to cross-examine Ms Marr about the document.81 Counsel for Mr Scott sought some time to consider the issue, and ultimately did not 79 Transcript 23.2.26, pages 1140 - 1141 (Scott). 80 Old Papa’s Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 [91] (McLure J, with whom Murray J and Parker J agreed); M Drainage & Constructions Pty Ltd atf DM Unit Trust t/a DM Civil v Lavan [2023] WASC 451 [24] - [26] (Howard J); Woodings as liquidator of Bell Groupage Ltd and Bell Groupage Finance Pty Ltd v WA Glendinning and Associates Pty Ltd [2019] WASC 54 [121] (Smith J). 81 Transcript 18.02.26 pages 714 - 715. -- 47 of 253 -- [2026] WASC 301 GETHING J Page 48 press it.82 I have not taken this document into account in determining the issues in dispute in this action. Ms Marr's evidence 142 Ms Marr gave evidence that she spoke to Mr Mansour and told him she would 'call in all [her] favours' to get the Vandalism repaired. She said that she would supervise the repairs so there would be no builder's margin. She said she would do a schedule of costs. She did not have a copy of the schedule of costs she prepared. 143 Ms Marr described the facsimile of 3 November 1998 to Mr Mansour as 'absolute fiction' and a 'fabrication'.83 144 She said the same of the facsimile of 4 November 1998 to Mr Mansour, saying that the numbers were wrong.84 She said that it was based on a real facsimile, but that it had been amended. She did not have a copy of the real facsimile. 145 Likewise, the letter of 5 November 1998 to Mr Mansour was not a document she wrote.85 146 Ms Marr said that there was no meeting sometime between 5 and 9 November 1998 at which Mr Scott and Ms Marr met with Mr Mansour and representatives of Rancore.86 147 Ms Marr said that the letter dated 9 November 1998 was also not genuine, though added that it was based on a real one, but rewritten.87 148 Ms Marr gave evidence in some detail about the efforts she went to prepare her schedule of works. However, none of the work was done until settlement had occurred and they obtained physical possession of Links Road88 (see section 6.2). 149 Ms Marr said that she initially asked Mr Mansour for $12,800. His clients would not agree. Ms Marr said that the final agreement with Rancore was in two parts. The first was that there was a rebate off the 82 Transcript 19.02.26 page 796. 83 Transcript 16.2.26, pages 345 - 346; Transcript 18.2.26, pages 716 - 717 (Marr). 84 Transcript 16.2.26, pages 346 - 349; Transcript 18.2.26 pages 717 - 719 (Marr). 85 Transcript 18.2.26, page 666 - 667 (Marr). 86 Transcript 18.2.26, pages 725 - 728 (Marr). 87 Transcript 18.2.26, pages 723 - 725, 728 - 730 (Marr). 88 Transcript 16.2.26, page 356 (Marr). -- 48 of 253 -- [2026] WASC 301 GETHING J Page 49 purchase price of $4,800.89 The second was a bank cheque to Ms Marr in the amount of $4,800.90 Factual findings 150 In my view, the fact that Mr Scott was able to produce the original facsimile of the 4 November 1998 letter is compelling evidence that this facsimile is an authentic document. Accordingly, I prefer Mr Scott's evidence and reject Ms Marr's evidence. I find that this document was in fact prepared by Ms Marr and was sent by her to Mr Scott on 3 November 1998 for him to review. However, there is no evidence that this facsimile was ever sent by Ms Marr to Mr Mansour. 151 The fact that there are now three documents which Ms Marr asserts are fabrications, which I have found are not, leads me to have concerns more generally about the accuracy of her recollection. I prefer the evidence of Mr Scott, and accept his evidence that Ms Marr provided him with copies of her facsimile dated 3 November and letter dated 9 November to Mr Mansour. 152 In each case, the contents of these documents, authored by Ms Marr, are admissible as admissions against her interest. 153 However, the contents of these documents do not really add anything to the analysis. It is common ground that Ms Marr was primarily responsible for the negotiations with Mr Mansour. 154 As to the final agreement, Mr Scott was not privy to the final negotiations. I accept the evidence of Ms Marr and find that, as part of the adjustment, the purchase price for the Rancore Marr Sale Contract was reduced by $4,800 to $165,200. This is reflected in the settlement statement which I quote at [172]. Ms Marr's evidence is plausible given that the responsibility to make good the Vandalism damage and consequent delay in settlement rested for Rancore. For the same reason, I also accept Ms Marr's evidence that she received a further cheque of $4,800 from Rancore on account of the Vandalism. So I accept Ms Marr's evidence as to the final agreement, being that at settlement she received: (a) a rebate off the purchase price of $4,800; and (b) a bank cheque to her in the amount of $4,800. 89 Transcript 16.2.26, pages 357, 360, 361, 372 (Marr). 90 Transcript 16.2.26, pages 357, 360, 362 ff, 372; Transcript 18.2.26 pages 748 - 751 (Marr). -- 49 of 253 -- [2026] WASC 301 GETHING J Page 50 3.11 Loans from the CBA 155 The facts relating to the loans ultimately obtained from the CBA are not in dispute. 156 By letter dated 5 November 1998 to Ms Marr, the CBA advised that it had approved a loan to Ms Marr and Mr Scott. I will refer to this loan as Home Loan 1. The loan amount was $136,000. The interest rate was the 'investment home loan standard variable rate'. The loan was to be secured by a registered mortgage over Links Road.91 157 By letter dated 10 November 1998, CBA advised Ms Marr that it had approved her application for a Commonwealth Bank Complete Home Loan (CBA Brentwood Loan). The loan was for $167,500. The security required was a registered mortgage over the Brentwood Property, a registered mortgage over Links Road and a guarantee from Mr Scott.92 Mr Scott signed a guarantee.93 158 On 10 November 1998, Ms Marr and Mr Scott signed a mortgage agreement with CBA in relation to Home Loan 1. The mortgage was secured over Links Road.94 159 The same day, Ms Marr signed a mortgage agreement with the CBA in relation to the Brentwood CBA Loan.95 160 It is apparent from the face of the mortgage documents that each mortgage was cross-secured over both Links Road and the Brentwood Property. 161 Ms Marr confirmed that Home Loan 1 was a standard joint and several mortgage with both parties being equally liable.96 4. Settlement of Links Road 4.1 Facts from the documents 162 From the documents in evidence, I find, that: 91 DTB 1, pages 42 - 50. 92 DTB 1, pages 52, 58, 59 to 66. 93 Transcript 23.2.26, page 1133 (Scott). 94 DTB 1, pages 71 - 74 95 DTB 1, pages 75 - 78. 96 Transcript 16.2.26, page 399 (Marr). -- 50 of 253 -- [2026] WASC 301 GETHING J Page 51 (a) on 11 November 1998, settlement of the sale of the Rancore Marr Sale Contract took place, with the effect that Ms Marr became the registered proprietor of Links Road;97 (b) the stated consideration for the purchase in (a) was $170,000 and stamp duty of $4,720 was paid;98 (c) simultaneously with (a), settlement of the sale of the Final Marr Scott Sale Contract took place, with the transfer document recording Ms Marr as the transferor and Ms Marr and Mr Scott as tenants in common as the transferee;99 (d) the stated consideration for the purchase in (c) was $85,000 and stamp duty of $1,702.50 was paid;100 (e) the end result was that Ms Marr and Mr Scott became tenants in common in equal shares of Links Road;101 (f) on 12 November 1998, the CBA registered a mortgage over the title to Links Road (being Home Loan 1), though it was also stamped on its face recording that it was additional security for the loan over the Brentwood Property;102 (g) on 11 November 1998, Home Loan 1 was drawn down in the amount of $136,000;103 (h) Ms Marr's mortgage with Advance Bank over the Brentwood Property was also discharged on 13 November 1998;104 (i) the mortgage in (h) was replaced on the same date with a mortgage to CBA again registered over the Brentwood Property by way of primary security,105 though also stamped on its face recording that it was also additional security for Home Loan 1;106 and 97 DTB 1, pages 164 - 167. 98 DTB 1, page 167. 99 DTB 1, pages 168 - 169. 100 DTB 1, page 169. 101 DTB 1, page 140. 102 DTB 1, page 140. 103 PTB A, page 3. 104 DTB 1, pages 170 - 171. 105 DTB 1, pages 99 - 100. 106 DTB 1, pages 160- 161. -- 51 of 253 -- [2026] WASC 301 GETHING J Page 52 (j) the total amount of the loan in (i) was $167,500,107 with an amount of $28,227 being provided for the settlement of the purchase of Links Road.108 4.2 Ms Mulcahy's evidence 163 Ms Mulcahy gave evidence that she knew Ms Marr from doing settlements for her. Aside from that, she could not really remember anything about the transactions. 164 Ms Mulcahy was the settlement agent for the two transactions involving Links Road. From her log book (which she produced), she was able to locate the entries for both transactions, which were copied and became exhibits. 165 In relation to the purchase of Links Road, from her log book Ms Mulcahy was able to say that:109 (a) on 16 September 1998 she received instructions to act on behalf of Ms Marr on the purchase of Links Road; (b) the purchase price was $170,000; (c) her settlement fees were $440; (d) the total fees (including settlement fees) were $537; and (e) settlement occurred on 11 November 2011. 166 In relation to the Rancore Marr Sale Contract, Ms Mulcahy said that she did her own stamp duty returns. From her handwriting on the face of this contract, she was able to identify that stamp duty of $4,720 was paid in relation to a gross consideration of $170,000.110 167 Ms Mulcahy was not able to recall anything between the signing of the Rancore Marr Sale Contract and eventual settlement which might have delayed settlement. 107 DTB 1, pages 59 to 66, 94. 108 PTB E, page 34. 109 Exhibit 7. 110 PTB E, page 8. -- 52 of 253 -- [2026] WASC 301 GETHING J Page 53 168 In relation to the sale of a 50% interest in Links Road from Ms Marr to Mr Scott, from her log book Ms Mulcahy was able to say that:111 (a) on 4 November 1998 she received instructions to act on behalf of Ms Marr on the sale of a 50% interest in Links Road; (b) the purchase price was $85,000; (c) her settlement fees were $499; (d) the total fees (including settlement fees) were $499; and (e) settlement occurred on 11 November 2011. 169 In relation to the Marr Scott Sale Contract, from her handwriting on the face of this contract, she was able to identify that stamp duty of $1,702.50 was paid in relation to a gross consideration of $85,000.112 170 There is in evidence a letter from Ann Mulcahy Settlements to Mr Scott dated 11 November 1998. This letter attaches the settlement statements for both transactions and the Marr Scott Sale Contract. At the point in time when Ms Mulcahy gave evidence, the original of this letter was not in evidence. Ms Mulcahy identified her signature on a scanned copy of this letter (Mulcahy Letter Copy).113 Ms Mulcahy gave evidence on a Friday. The original letter was tendered on the following Tuesday, having been found by Mr Scott (Mulchay Letter Original).114 Because of the significance placed on this letter by Ms Marr, I allowed her to recall Ms Mulcahy when the trial resumed in June. Ms Mulcahy identified her signature on the first page of the Mulchay Letter Original.115 She identified the document attached to the letter as being the original of the Marr Scott Sale Contract.116 She said that the fees contained in each settlement statement were her usual fees at the time.117 171 Ms Marr asked Ms Mulcahy about the two settlement statements in evidence. Ms Marr asserts that these are fabrications. Ms Marr questioned Ms Mulcahy about the letterhead on which the settlement 111 Exhibit 8. 112 DTB 1, page 86. 113 DTB 5, page 83; Transcript 17.6.26, page 1310 (Mulcahy). 114 Exhibit 13; Transcript 24.2.26, page 1194 (Scott). 115 Transcript 17.6.26, page 1310 (Mulcay). 116 Transcript 17.6.26, page 1310, 1315 (Mulcahy). 117 Transcript 17.6.26, page 1310 (Mulcahy). -- 53 of 253 -- [2026] WASC 301 GETHING J Page 54 statements were printed. Both settlement statements were on the preprinted letterhead of 'Ann Mulcahy Settlements'. The one for the Marr Scott Sale Contract was in the original burgundy colour, but the one for the Rancore Marr Sale Contract was a black and white copy. Ms Marr also questioned Ms Mulchay about the contents of each settlement statement. In the end, Ms Mulcahy was not able to recall anything beyond what was recorded in the documents.118 She could not give any evidence as to the authenticity or otherwise of the Mulchay Letter Original.119 Given that the Mulchay Letter Original forwarded to Mr Scott the original of the Marr Scott Sale Contract, I find that the Mulchay Letter Original and its contents are authentic. The fact that the settlement statement for the Rancore Marr Sale Contract was a black and white copy could well be explained by original of this document having been provided to Ms Marr in a similar letter advising her that both settlements had occurred (though Ms Marr did not discover such a letter). 172 The settlement statement for the Rancore Marr Sale Contract is in the following terms:120 AM: 1920 10th November 1998 SETTLEMENT STATEMENT DM MARR PURCHASE OF LOT 188 LINKS ROAD ARDROSS FROM RANCORE PTY LTD Dr Cr Purchase price $165,200.00 MORTGAGE FUNDS FROM COMMONWEALTH BANK OF AUSTRALIA Less deposit paid 2,500.00 PAYMENT OF STAMP DUTY AND REGISTRATION FEE PRIOR TO SETTLEMENT 4,814.00 COSTS AND DISBURSEMENTS: Settlement fee 560.00 My fee to you 440.00 Stamp duty on Transfer 4,720.00 Registration fee Land Titles Office 94.00 Search Fee Land Titles Office 32.00 Land tax enquiry fee 20.00 Water Corporation enquiry fee 20.00 Postages Fax and sundries 15.00 118 DTB 5, page 83; Transcript 17.6.16, page 1310; pages 1314 - 1315 (Mulcahy). 119 Transcript 17.6.26, page 1314 - 1315 (Mulcahy). 120 Exhibit 13 (original); DTB 1, pages 83 to 87 (scanned copy). -- 54 of 253 -- [2026] WASC 301 GETHING J Page 55 Monies held pending adjustment of Rates/Taxes and FID 1,000.00 BALANCE REQUIRED TO COMPLETE PURCHASE: 164,227.00 _______________________________ $171,541.00 $171,541.00 ______________________________ 173 Ms Mulcahy could not explain why the purchase price was '$165,200' when the contract price was $170,000.121 174 The settlement statement for the Marr Scott Sale Contract is in the following terms: AM: 1920 10th November 1998 SETTLEMENT STATEMENT DM MARR & PW SCOTT - PURCHASE OF LOT 188 LINKS ROAD ARDROSS FROM RANCORE PTY LTD Dr Cr FUNDS RECEIVED AT SETTLEMENT: $1,527.00 Funds drawn and paid to vendor ($158,795.00 3,905.00) = $162,700.00 COSTS AND DISBURSEMENTS: Settlement fee DM Marr (1st Purchase) 440.00 Settlement fee DM Marr (sale) 199.00 Settlement fee PW Scott (purchase) 300.00 Registration fee Transfer PW Scott 64.00 Search fees 32.00 Water enquiry fee 20.00 Land tax enquiry fee 20.00 Postages fax and sundries 25.00 Monies held pending adjustment of water and shire rates - interim rates to issue 427.00 ______________________________ $1,527.00 $1,527.00 ______________________________ 4.3 Ms Marr's evidence 175 Ms Marr gave evidence that the settlement statement I have quoted at [172] was not authentic and has been fabricated.122 She confirmed that the final purchase price was $165,200, being the $170,000 less the $4,800 vandalism rebate.123 As mentioned at [154], she also received a 121 Transcript 17.6.28, page 1313. 122 Transcript 16.2.26, page 370; 18.2.26, pages 756 (Marr). 123 Transcript 16.2.26, pages 362, 371 (Marr). -- 55 of 253 -- [2026] WASC 301 GETHING J Page 56 bank cheque in the amount of $4,800 in respect of the Vandalism expenses. 176 Ms Marr's evidence in relation to the deficiencies in the settlement statements at [172] and [174], as well as settlement generally, was convoluted.124 Doing the best that I can to understand her evidence, it appears that the deficiencies are: (a) the purchase price should be $170,000 less $4,800 (which in any event equals $165,200); (b) there is no mention of the $4,800 rebate cheque; (c) she does not know where the figure of $158,795 (funds drawn and paid to vendor) comes from; (d) the heading to the settlement statement at [174] is wrong - the purchase from Rancore was by Ms Marr alone and not Ms Marr and Mr Scott; and (e) the balance she had to come up with to settle was $164,227, saying the amount from CBA was only $162,700 (being $165,200 less the $2,500 deposit). 177 Ms Marr accepts that the purchase price she actually paid to Rancore was $165,200.125 178 Ms Marr says that the CBA letter advising that an amount of $28,227 was transferred from the home loan for the Brentwood Property126 should be disregarded.127 I disagree. There is no evidence that it is a forgery and, in any event, this figure correlates with the remainder of the evidence. 4.4 Mr Scott's evidence 179 Mr Scott was taken to the Mulchay Letter Copy.128 He gave evidence that this was a scanned copy of the version of a letter which he received from Ms Mulcahy.129 124 See for example: Transcript 16.2.26, pages 371 ff, 18.2.26 pages 747 - 759 (Marr). 125 Plaintiff’s Reply Submissions, par 12C. 126 PTB E, page 34. See also DTB 1, pages 88 - 89. 127 Plaintiff’s Closing Submissions, par 10. 128 DTB 1, page 83. 129 Transcript 23.2.26, pages 1139 - 1141 (Scott). -- 56 of 253 -- [2026] WASC 301 GETHING J Page 57 180 As mentioned, the original hard copy letter was later tendered into evidence, that is the Mulchay Letter Original.130 Mr Scott identified that letter to be the original of the Mulchay Letter Copy.131 181 Mr Scott gave evidence that he paid the stamp duty to Ms Mulcahy by drawing out cash in the amount of $1,708.50 on 10 November 1998.132 He said that the stamp duty was only $1,702.50, so he may have misread or misheard the amount, and drawn out the wrong amount. I find that he only paid the correct amount of $1,702.50 to Ms Mulcahy. 4.5 Factual findings 182 Aside from identifying the expenses of settlement, the settlement statements do not really assist in the determination of the issues in this trial. These settlement expenses largely correlate with Ms Mulcahy's log book and the other documents recording the stamp duty paid. Ms Marr did not take issue with the expenses. 183 The settlement statements do confirm that the actual price paid by Ms Marr for Links Road was $165,400. 184 I find that the settlement expenses for the Rancore Marr Sale Contract were: Item Amount Stamp duty $4,720 Settlement fee $440 Registration Fee LTO $94 Search Fee LTO $32 Land tax inquiry fee $20 Water Corporation inquiry fee $20 Postage Fax and Sundries $15 Total $5,341 There was an amount of $1,000 withheld pending adjustment of rates and taxes. However, there is no information as to how this was ultimately apportioned, so I can make no further findings and have not taken it into account further. 130 Exhibit 13. 131 Transcript 23.2.26, page 1193 (Scott). 132 Transcript 23.2.26, pages 1134, 1137 (Scott); exhibit 11. -- 57 of 253 -- [2026] WASC 301 GETHING J Page 58 185 I find that the settlement expenses for the Marr Scott Sale Contract were: Item Amount Stamp duty $1,702.50 Settlement fee Marr $199 Settlement fee Sott $300 Registration Fee LTO $64 Search Fee LTO $32 Land tax inquiry fee $20 Water Corporation inquiry fee $20 Postage Fax and Sundries $25 Total $2,362.50 186 Thus, the total settlement expenses were cost for the acquisition of Links Road were $7,704 rounded to the nearest dollar): Item Amount Settlement expenses Rancore Marr Sale Contract $ 5,341 Settlement expenses Marr Scott Sale Contract $ 2,362.50 Total $ 7,703.50 187 From the settlement statements in [172] and [174], I find that: (a) prior to settlement, Ms Marr paid $4,814 for stamp duty and registration; and (b) following settlement Mr Marr received an amount of $1,527, essentially as a refund. 188 I also find that, prior to settlement, Mr Scott paid $1,702.50 for stamp duty on the Marr Scott Sale Contract. 189 Ms Marr claims the following amounts as her initial contributions prior to settlement:133 Item Particulars Amount 1 Deposit $ 2,500 2 Solo Loan application CBA $ 300 3 Reiwa Tenancy application from $ 5 4 White Ant Certificate $ 225 5 Lawyer Deed of Agreement $ 500 133 Exhibit 27 (my item numbers). -- 58 of 253 -- [2026] WASC 301 GETHING J Page 59 6 Stamp Duty and registration fees $ 4,820 7 Rewa Tenancy application form $ 2.50 8 one quarter of CBA Brentwood loan costs $ 1,000 9 Other Associated Costs Settlement $ 1,527 10 Balance from Brentwood to bring LVR above 80/20 $38,100 $48,979.50 190 In relation to the amounts claimed by Ms Marr, I accept item 1 (deposit of $2,500). 191 Ms Marr did not give evidence that she incurred the amounts in item 2 (solo loan application), item 3 (REIWA) or item 4 (white ant certificate). So she has not proven these amounts and I do not allow them. 192 In relation to item 5 (deed of agreement), Ms Marr did not give evidence that she incurred this amount. So she has not proven this amount and I do not allow it. 193 In relation to items 6 and 9, at [184] I find the settlement expenses for the Rancore Marr Sale Contract to be $5,341. 194 Ms Marr did not give evidence that she incurred the amounts in item 7 (REIWA) or item 8 (CBA Brentwood loan costs). So she has not proven these amounts and I do not allow them. 195 In relation to item 10, balance from Brentwood, I deal with this in section 9.7. 5. Evidence as to initial agreements 5.1 Overview 196 In this Part I set out the further evidence from Ms Marr and Mr Scott as to the initial agreements between them. I return in Part 9 to make findings in relation to these agreements. -- 59 of 253 -- [2026] WASC 301 GETHING J Page 60 5.2 Ms Marr's evidence 197 Ms Marr described the arrangement between herself and Mr Scott as a 'commercial joint endeavour'.134 When I asked her what she meant by a 'joint endeavour', she said 'in partnership'.135 198 I asked Ms Marr, when the dust settled on settlement, what she says was the amount of the joint loan. Her evidence was:136 MARR, MS: Over $136,000 and some of that, most of that, went to Rancore. 4,800 went back into my bank account, and another 6,600 to bring us up to the 80 per cent in loan-to-valuation ratio, because I was way in at 26 - 76 per cent loan-to-valuation. So we had that extra amount, and it's referenced in other documents. 'We're going to do work, we're going to put in the Cisco security, we're going to put in the split system.' GETHING J: Okay. So again, and I'm just, sort of, pointing you back to the chronology. So when the dust settles on the settlement on 9th of - - - MARR, MS: 11th. GETHING J: 11 November, we have a certificate of title. MARR, MS: Yes. GETHING J: Which gives - which puts you and Mr Scott there as tenants in common and equal shares. MARR, MS: Yes. GETHING J: And we have a joint loan in the name for secured over Links Road. MARR, MS: Yes. GETHING J: Cross-securitised over - cross-secured over Rancore property. MARR, MS: Yes. GETHING J: - - - in the amount of $136,000. MARR, MS: Yes, so we borrowed 68,000 each, and I've never heard of the defendant's fabrication that he borrowed 79, and I borrowed 57. 134 Transcript 16.2.26, page 272 (Marr). 135 Transcript 16.2.26, page 273 (Marr). 136 Transcript 16.2.26, page 384 ff (Marr). -- 60 of 253 -- [2026] WASC 301 GETHING J Page 61 GETHING J: Right. MARR, MS: I've never heard of it before. GETHING J: Okay. MARR, MS: That's not what happened. GETHING J: Okay. So, in relation to the loan, what, if any, discussions did you have with Mr Scott about the basis - about how that would - who would be responsible for it, how it would be repaid? … MARR, MS: As I said, I had to come up with something like $47,000, $48,000 for me to settle it anyway. He came up with six. So we add 48 and six together, and you get 54. The difference - so he has to catch up with me from $6,000 all the way up to half of 54 or 56,000. And of course, the vandalism, which we didn't anticipate at the beginning, but the vandalism added to the cost, and we couldn't know exactly what was owed until the work was done. Because there are always contingencies. There might be delays and so forth. So it was a personal loan. Mr Scott borrowed $68,000 from the Commonwealth Bank, and he borrowed the other 20-odd from me. And he had to repay me before he did anything else. GETHING J: Now, is there any - - - MARR, MS: That is how you equalise. GETHING J: Okay. Now, and he had to pay you how much? MARR, MS: It should have been 905. GETHING J: No. But how much in total do you say he had to repay you? MARR, MS: Well, we didn't know the bottom line until I finished the vandalism. GETHING J: Okay. So the difference between 68,000 and the vandalism cost - - - MARR, MS: Yes, and the extra money that we borrowed. 199 Ms Marr was not able to direct my attention to any document which supported or evidenced her testimony that Mr Scott agreed to loan the shortfall in his contribution as a personal loan. -- 61 of 253 -- [2026] WASC 301 GETHING J Page 62 200 I inquired of Ms Marr whether there were any other conversations which she had with Mr Scott in the lead up to settlement which she recalled, but had not yet given evidence about:137 MARR, MS: Well, he - he remained remarkably quiet. He was happy that I was doing the work. He was suggesting that I make the vandalism, you know, like I was going to - basically, we - we had planned anyway to repaint and strip and sand, so I actually took that out of the first costs. I actually didn't allow for it. I - I wanted new window treatments and chattels, and things like that, and we also needed extra funds. So that's why we borrowed the extra $6600 and took it to the maximum 80 per cent LVR. Mr Scott didn't really show up. Didn't really - - - GETHING J: But, I guess, what this is what I'm interested in, are there particular conversations in particular contexts that you want me to be aware of, or have you covered them all? MARR, MS: Well, he was just happy and kept reassuring me that he was so happy with the deal and, you know, he would really catch up. And we were such good friends, and we could be multi-millionaires together - well, we could have been. 201 In cross-examination, Ms Marr reiterated the position as regards the settlement costs:138 GETHING J: So, can I … ask you this question, Ms Marr? Do you accept that on the contract of sale, by which Mr Scott acquired a 50 per cent interest in Links Road, he paid stamp duty of $1,702.50?---No, we agreed to equalise everything so that we would be 50/50. So, all of the first settlement costs get added to all of the second settlement costs, all of the vandalism repairs, and then divided by two. 202 Ms Marr gave evidence that the settlement costs were to be equalised:139 So the very first contribution, financial contribution, other than the $6,000, plus the $300 that Mr Scott paid for the Commonwealth Bank joint application that he was up to about that, and he also paid for the stamp duty for the second settlement statement, which was always agreed to be equalised, so we added my settlement and his settlement, both together, and go 50/50. Because if you are 50/50, you pay half the costs. 137 Transcript 16.2.26, pages 395 - 396 (Marr). 138 Transcript 19.2.26, page 840 (Marr). 139 Transcript 17.2.26, page 440 (Marr). -- 62 of 253 -- [2026] WASC 301 GETHING J Page 63 203 Ms Marr said that the next contribution made by Mr Scott was an amount of $853 on 11 January 1999.140 204 Ms Marr then said that next payment by Mr Scott was of $853 on 10 February 1993, adding:141 So he was - the way I worked it out, his monthly repayment to me for the - because he was - he owed me for the money I loaned him as a personal loan. He only got 68 from CBA. And the rest he got from me. Now, my books closed, but the whole deal cost - we will round it to 185 for ease of [math]. Half of that is 92 and a half. Mr Scott's accounts settle at exactly $170,000, no allowance whatsoever for any settlement costs or the extra loan he denies- - - GETHING J: So what is the 853 then? MARR, MS: Sorry? GETHING J: What is the 853 then? MARR, MS: The 853, that is his second payment, still not - he is actually going backwards because he needed to pay 905 to keep up. GETHING J: With what? MARR, MS: With - with his repayment, he had his half of the mortgage to pay. Then, he had to also pay me. So by him paying it, he is - hasn't kept up - - - GETHING J: Okay. MARR, MS: - - - but he is paying me back. And I am trying to get him to - to agree to what he agreed to, to do what he agreed to and signed on the deed of agreement. And he doesn't think it's fair. GETHING J: Okay. MARR, MS: And I am going, well, why didn't you put in 46, 47? I go, why didn't you - because I didn't have it. And I said, so we have to equalise. GETHING J: And so when are these conversations taking place? MARR, MS: These are taking place only after I had finished the work and put in the joint application to council, which was rejected. So he would never have settled but for the vandalism event. 140 PTB C, page 4; Transcript 17.2.26, pages 440 - 441 (Marr). 141 PTB C, page 4; Transcript 17.2.26, page 441 (Marr). -- 63 of 253 -- [2026] WASC 301 GETHING J Page 64 205 After undertaking the repairs on Links Road, Ms Marr then turned her attention to the rezoning application. She did the sketch that is in evidence for the joint occupation.142 She then went to see Mr Scott to get him to sign the application:143 MARR, MS: And - and - and my other clients have said, 'Sorry. I'm a bit under the pump,' and then I did that freehand drawing. It was before CAD computers. Anyway, I can't use computers. I've proven myself computer illiterate. So I did that drawing and then take them around to Mr Scott…to sign because we're doing a joint application. GETHING J: Yes. MARR, MS: And he has gone, 'I don't think I want to sign this deed of agreement.' And I've been so focused on fixing the mess - - - GETHING J: So let's go back half a step because what you said that you took around for him to sign was the drawings? MARR, MS: Yes. GETHING J: And then you just dropped in the deed of agreement. Where does that fit in? MARR, MS: Well, he said, 'I don't want to sign the deed.' I said, 'You've got to sign the deed of agreement.' He said, 'No. I don't think it's fair to me,' and I said, 'Well, why don't you come up with 46, 47 grand.' He said because he didn't have it, and I said, 'So, what, you change the rules afterwards,' and he went, 'Yes. I don't - I just don't like it,' and I went, 'Well, Phil, you can't do that. It's - it's a - it's breach of contract,' but he kept - but he acquiesced. He kept paying the mortgage. And now the story has changed: that it was - I was financially delinquent, I only put 28 grand in. 206 As to the agreement between them, Ms Marr said:144 MARTINO, MS: And so the agreement was that you would be fifty- fifty co-owners, and that you would then - Mr Scott would make up his contributions by making payments into the - into the joint account, which is Streamline One?---No. We each borrowed 68 grand, each of us, and he borrowed all of the rest of his purchase price from me and agreed to repay me. And where do I find that - - -?---And then - and then after he has induced me by his misrepresentations to put his name on the title, he 142 PTB E, pages 35 - 36. 143 Transcript 16.2.26, pages 403 - 404 (Marr). 144 Transcript 18.2.26, pages 764 - 767 (Marr). -- 64 of 253 -- [2026] WASC 301 GETHING J Page 65 wants to change the deal. And he kept gaslighting and twisting. And, Ms Martino, that's why we're here, so no. So where do I find that agreement that he - because - because if you - well, let me put it this way. Wait a second?---In the deed of agreement that secretly got - it's gone. Yes. But if you knew that at the point of settlement, why - - -?---I didn't know - no. He didn't - he didn't raise it until after settlement, and I was so busy fixing the vandalism damage. But why didn't you then just vary the contract and say, 'Well, actually, you haven't paid your shares, so I'm going to have a bit more than you. You're not going to be a 50 per cent owner'?---What? That's not - - - Well, why didn't you just make it - - -?---You've - you've got it the wrong way around. I was more than 60 per cent because of how much more I put in. He had to catch up. He's the one who breached the contract, Ms Martino. … GETHING J: Okay. Could I ask this question. Was there any - after the settlement, was there a conversation between you and Mr Scott about who would be responsible for payment of the joint loan?---Yes. What was that conversation?---It - it was the conversation before. No, no, no. I am not talking about the conversation before?---Okay. Basically - - - Was there a - - -?--- - - - he needed $905 a month to repay his share of the mortgage, pay his rent, and pay me back my loan - - - Okay?--- - - - to him. … MARTINO, MS: So in the same vein as the settlement costs of $7,000 that you were going to equally be responsible for, you were going to be equally responsible for the 136,000?---Yes. And you and Mr Scott agreed?---And the way he paid - - - And - - -?--- - - - me back the personal loan - - - … MARTINO, MS: Yes. So you were going to be - go equally, pay equally, the joint loan of 136,000?---After he caught up, after he caught up. -- 65 of 253 -- [2026] WASC 301 GETHING J Page 66 5.3 Mr Scott's evidence 207 Mr Scott's evidence as to the agreement in relation to Home Loan 1 was as follows:145 MARTINO, MS: And so just with the loan amount too, what was the - what did you and Diana agree or discuss? What's your recollection about how the loan proceeds of 136,000 would be used between you?---Because it's going to be used to buy the house. Yes, and how much would you use?---How much I? Do you use, sorry?---Okay. Well basically, the simplified calculation before it came in with damage and before we were settling on other things such as differences in stamp duty and balancing up and things, there's a loan - there's a purchase price of the house for 170,000 and we are borrowing 136 from the bank. Basically 80 per cent of the loan. We have that approval of that finance, so we have to find the other 34. Now, I have 6 I don't have any more, so I provided 6 and Diana has provided. So if you look at it, as to what at that point is my share of the loan, my share is 85,000 less 6, 79 and Diana's share is 85,000 less 28. And how did you and Ms Marr agree that was going to be dealt with moving forward?---Can you tell me what - can you tell me what 85 less 28 is? 65, 8, 57. Sorry, 28,000, did you say?---85,000 less than 28. Yes, sorry, 57,000, yes?---57,000. So 57 and 79 up to the loan 136. Yes, and how did - how was that going to be dealt with between the two of you, the fact that you had more of the loan moving forward once the property settled?---Okay, then, it was going to be recognised in future settling up. There's no specific time we're going to settle up. We've just both doing our best in there to put money in, secure the property and work out what work has to be done and how we're going to do it. However, it's acknowledged that I will pay more in due course on the mortgage. I will catch up and we will at some point be even and then presumably continue on as even, both making equal contributions. So your understanding was you still retain the 50 per cent interest in the property?---Yes, that's my understanding. 208 Mr Scott's evidence as to the arrangement or agreement between him and Ms Marr following settlement was in the following terms:146 145 Transcript 23.2.26, pages 1138 - 1139 (Scott). See also: transcript 19.6.26, page 1724 (Scott). -- 66 of 253 -- [2026] WASC 301 GETHING J Page 67 To my mind, the agreement that would finally arrive at settlement included, to me, inconsequential changes to settlement finance from 120 to 130, which actually came in at 136. Dates of finance and settlement that were, essentially, disrupted by the damage to the house and the settlement anyway afterwards on the 11th. And the arrangement we have between us is that we have purchased this house together, 50 per cent each, and we are going to proceed through and make various contributions to achieve our aim, perhaps if we can, of turning it into commercial premises. But we each will own 50 per cent and be responsible for 50 per cent of the costs. We may pay more here, more here, there. One person organises something, pays it. Another person organises something, pays it. Or money comes in, pays into the account. But it will all be sorted out in the wash to be 50-50 in the end. There was no, absolutely no inkling that anything else was expected except that this was an equal even transition and that we would both work to achieve what we're aiming with the property. GETHING J: And you earlier gave some evidence about the arrangement with the mortgage and the differential contributions. Did that - did that, did your evidence in relation to - what - okay, so you gave that at the point of time when, so just tell us what, in the final analysis after settlement, what was your understanding of the arrangement as a preparation for mortgage?---Immediately after settlement, I have made a certain deposit, $6,000 to date, and I haven't made any mortgage payments yet. And Diana has made her equity transfer, her deposit of two and a half, and she's made no mortgage transfers yet. So, immediately, they were starting off with an imbalance, and I will be contributing more shortly and balancing up. So am I right in understanding your evidence to be that there was no change to the agreement which you gave evidence about before lunch, which was, I think, that your, that you'd borrowed, I think your evidence was 79,000. Ms Marr had borrowed, your response was 79,136, Ms Marr was (indistinct) for 57,000 of the 136, you would make payments over time to catch up, and then you would be equal?---Yes, except that got slightly modified, because the house was purchased at a reduced amount, by $4800, which I believe is just simply the damage revoked. So the vendors accepted 165,200 instead of 170, which was noted in Anne Mulcahy's letter to us. … And in the process of that, I put in $6000, but Diana has taken out $6000, out of the pot, and used that for her expenses, and then we've both paid stamp duty expenses, mine smaller than hers. And also, the settlement (indistinct) I believe, were simply added, and were part of the equity transfer that came out of Commonwealth Bank, from the 146 Transcript 23.2.26, pages 1152 - 1154. -- 67 of 253 -- [2026] WASC 301 GETHING J Page 68 Brentwood property, to cover Diana's side. So they had a balance, at that point. Right. And what's the basis of what you've just told me? Is that your assumption, or is that a conversation you recall having with Ms Marr after settlement?---No, this is me looking at all the documents in detail now, and knowing the damage, and reading Anne Mulcahy's letter. I was not fully conversant with what the figures were at that time, but I knew that equity had been transferred. I knew that the money was coming from the Brentwood property, which is why I was guaranteeing the Brentwood property. So am I right, then, in understanding your evidence to be that the intent was that the expenses would be shared equally, in the wash-up?---Yes, your Honour. So that was the agreement at the time, that there's an unequal contribution to the loan, which will be addressed over time, and the expenses will be shared equally, and come out in the wash?---Yes, your Honour. So there was no more sophisticated agreement than that at the time?---No, your Honour. No more sophisticated agreement than that. … MARTINO, MS: So you just said, then, that at the point of settlement, you had a lesser contribution than Ms Marr?---Mmm. And in terms of the interest in the property, what was your percentage?---50 per cent. 209 In cross-examination, Mr Scott put the arrangement in pithy terms:147 We had an arrangement where we decided we would do this project together and we would seek the amount of money we needed from the Commonwealth Bank and I had a $6000 deposit available and did so and you contributed a larger deposit and then we borrowed the balance from the Commonwealth Bank. 210 When cross-examined, Mr Scott also confirmed his evidence that: (a) there was no deed of agreement;148 (b) there was no discussion about vendor finance;149 147 Transcript 17.6.26, page 1334 (Scott). 148 Transcript 17.6.26, page 1334, pages 1339 - 1340 (Scott). 149 Transcript 17.6.26, page 1348 (Scott). -- 68 of 253 -- [2026] WASC 301 GETHING J Page 69 (c) there was no 'vendor finance document or anything like that';150 (d) he has no recollection of any conversation with Mr Disspain;151 and (e) he was not privy to the final agreement Ms Marr made with Rancore in relation to the reduction in purchase price due to the Vandalism, though knew there was an agreement as settlement was able to proceed;152 (f) his share of Home Loan 2 was $79,000 and he had to catch up with Mr Marr to make the loan balances equal;153 and (g) the costs of both settlements would need to be equalised.154 6. Events following settlement 6.1 Banking arrangements 211 On 13 November 1998, CBA Bank Account 10138106 (Streamline 1) is opened in the names of Ms Marr and Mr Scott.155 Streamline 1 is where the mortgage repayments for Home Loan 1 were paid from. It was to be the account out of which the day to day expenses were to be paid. 212 There is in evidence an almost complete set of bank statements for Streamline 1.156 213 The first statement recorded a nil opening balance and the issue of a cheque book.157 The second statement records the first deposit being of $900 on 11 December 1998.158 Ms Marr gave evidence that she paid this amount in so that there would be money in the account to meet the impending mortgage payment.159 Mr Scott says that they paid it in jointly.160 150 Transcript 17.6.26, page 1348 (Scott). 151 Transcript 17.6.26, page 1349 (Scott). 152 Transcript 17.6.26, pages 1336 - 1337 (Scott). 153 Transcript 17.6.26, pages 1398 - 1399 (Scott). 154 Transcript 17.6.26, page 1399 (Scott). 155 PTB C, page 3. 156 PTB C. 157 PTC C, page 3. 158 PTC C, page 4. 159 Transcript 17.2.26, page 438 (Marr). 160 Exhibit 25, page 2. -- 69 of 253 -- [2026] WASC 301 GETHING J Page 70 214 There is no record of a cheque in the amount of $4,800 being deposited into Streamline 1 over the period to 22 March 1999. 215 Ms Marr accepted that the amounts of $853 that were paid in around this time were probably paid in my Mr Scott.161 6.2 Vandalism repairs Mr Scott's evidence 216 Mr Scott gave evidence that once he and Ms Marr had access to Links Road, they started right away to clean it up. They both contributed to the cleanup. A priority was to stop people climbing in through the windows. Ms Marr organised glazing of the windows. Mr Scott believed that this cost around $1,600 and that Ms Marr paid for this. He organised a telephone connection and a security system. In this regard, Mr Scott identified an invoice in the amount of $1,099 for the installation of the security system dated 29 January 1999.162 No painting or floor sanding was done at that stage.163 Ms Marr's evidence 217 Ms Marr gave evidence that in the three weeks after settlement she arranged for a number of contractors to come in and do work. She paid them. Within a fortnight, sufficient work was done to make the house secure. She disputed that Mr Scott did any work.164 Her evidence was:165 I did all the repairs. I did the schedule of costs. I got all the quotes. I supervised the work. 218 Mr Marr said that she paid for the SESCO security system, which was installed in December 1998, but not paid for until later with the invoice for the monitoring fee.166 219 In her statement of claim, Ms Marr set out the work she says was done:167 Notwithstanding the Legal Interests, the plaintiff made financial and non-financial contributions to the Property by incurring and paying for 161 Transcript 17.2.26, page 444 (Marr). 162 DTB 3, page 49. 163 Transcript 23.02.26, page 1155; Transcript 17.6.26, pages 1396 - 1397, 1406 - 1407 (Scott). 164 Transcript 16.2.26, pages 353 - 354, 400 ff; 17.2.26, pages 442, 732 - 734 ff; 760 (Marr). 165 Transcript 18.2.26, page 725 (Marr). 166 Transcript 17.2.26, page 442 (Marr). 167 Claim par 12A. -- 70 of 253 -- [2026] WASC 301 GETHING J Page 71 the repair, maintenance and improvement of the Property, attendance to engaging and supervising contractors to carry out repair works at the Property, and otherwise carrying out cleaning/clearing work at the Property which were to be undertaking shortly after the O&A. Particulars a) Between 1 and 4 November 2018 , the plaintiff undertook various works at the Property on a full-time basis in order (primarily to prepare a Schedule of Costs to repair and clean and clear rubbish from the property) and otherwise liaised with painters, glaziers, plumbers, electricians and other service providers to obtain quotes and arrange for maintenance and repair works to be carried out on the Property to make it fit for human habitation (Works). b) The estimated costs of the Works was approximately $12,800 and included: (i) replacing all glazing at the Property; (ii) replacement of window treatments that were destroyed or vandalised with graffiti; (iii) replacing lounge room and dining room floor coverings or stripping and sanding all carpeted and timber floors throughout the Property which were vandalised with graffiti; (iv) replacement of damaged and/or destroyed toilet pan, cistern and sewer pipe; (v) oil-based undercoat painting works to walls and ceilings to seal graffiti; (vi) subsequent top-coat painting of the walls and ceilings; (vii) electrical repairs to non-functional and/or destroyed wall and ceiling mounted light fittings; and (viii) other sundry works such as the provision of a skip bin and disposal of rubbish resulting from cleaning the Property, disposal of rubbish and performance of the above-mentioned works; 220 Ms Marr gave evidence that the work set out in paragraph (b) above was the work she arranged to be carried out.168 168 Transcript 16.2.26, pages 355 - 358 (Marr). -- 71 of 253 -- [2026] WASC 301 GETHING J Page 72 6.3 Determination 221 Given that Ms Marr was the one who was primarily liaising with the representatives of Rancore about the Vandalism claim and received the compensation to do so, I accept her evidence that she was responsible for arranging the repairs. There is a caveat. I don't accept that this was to the exclusion of Mr Scott as that is implausible. So I find that he was also involved. So my finding is that Ms Marr was largely responsible for arranging the repairs. 222 Ms Marr claims the following amounts in relation to Vandalism repairs:169 Item Particulars Amount 1 Schedule of costs preparation DM $ 600 2 Supply blue fowlerware WC suite $ 345 3 Vision Glass replace glazing $ 2810 4 Electrician repair Meter box etc $ 500 5 KMM Plumbing new WC, pressure test etc $ 710 6 Connect phone for security system $ 250 7 Connect phone for security system $ 150 8 Total Bin Hire $ 230 9 Labour hire $ 54 10 Painting oil-based undercoat etc $ 1000 11 Project management & supervision by DM $3,000 $9,649 223 In relation to items 1 and 11, I accept Ms Marr's evidence that she spent a considerable amount of her own time and effort in organising the repairs and carrying out some of the work. I deal with the issue of whether she can claim for her time in section 9.7 where I consider the agreements which they made. 224 In relation to item 2 (toilet), Ms Marr said that she had a toilet pan which she supplied. She had a quote to replace it at $385.170 Given that she had to purchase the toilet pan in the first place, I allow this cost of $345 as claimed. 225 In relation to item 3 (glazing), Ms Marr gave evidence that a company called 'Vision' replaced all the glazing at a cost of $2,810.171 169 Exhibit 28, p 1 (my item numbers). 170 Transcript 16.2.26, pages 357 - 358 (Marr). 171 Transcript 16.2.26, page 357 (Marr). -- 72 of 253 -- [2026] WASC 301 GETHING J Page 73 However, her quote was for $1,200 [134], (with the amount of $2,810 being for painting). Mr Scott accepted that the cost was $1,600.172 I will allow the amount at $1,600. 226 In relation to item 4 (electrical), Ms Marr's evidence was that this cost $500.173 As to what was done:174 So we had the metre box, but it was also, there were bare wires hanging out of the wall that ripped the wall-mounted light fittings in the lounge and dining. And there's two ceiling oysters, and they had just torn them out and they were hanging. 227 Mr Scott did not recall ever involving an electrician in the repairs.175 Again, there is no documentary evidence either way. Given that Ms Marr was largely responsible for arranging the repairs, I accept her evidence and allow this cost. 228 In relation to item 5, plumbing, Ms Marr said that this was for installing the new toilet, repairing a crack on the sewer pipe underneath and pressure testing it. She said this cost $500 to $600.176 Mr Scott said that $255 was paid for toilet installation and that no pressure test occurred.177 Mr Scott identified an invoice from KMM Plumbing for work done on 24 November 1998 in the amount of $255.178 The work was 'Unblock WC' and 'Repair Outside Water Pipe'. The invoice was to Arteschi Designs. Mr Scott says his paid this invoice from Streamline 1 by cheque numbered 000001.179 Ms Marr says that there is no evidence that this cheque was ever presented. However, the bank statement for the period from 14 April 1999 to 18 August 1999 is missing.180 Given that this invoice was to Ms Marr's business, and that she was largely responsible for arranging the repairs, I accept that she paid it and that it the cheque from Mr Scott was never presented. I allow this cost, though only at $255 consistent with the invoice. 229 Mr Scott accepted item 6 (phone for security system), item 7 (power for security system) and item 8 (bin hire).181 I allow these costs. 172 Transcript 18.6.26, pages 1396 - 1397, 1618 (Scott). 173 Transcript 16.2.26, pages 357 - 358 (Marr). 174 Transcript 16.2.26, pages 357 - 358 (Marr). 175 Transcript 18.6.26, page 1629 (Scott). 176 Transcript 16.2.26, pages 357 - 358 (Marr). 177 Transcript 18.6.26, page 1630 (Scott). 178 DTB 3, page 34. 179 Transcript 19.6.26, pages 1719 - 1720 (Scott). 180 PTB C. 181 Transcript 18.6.26, page 1630 (Scott). -- 73 of 253 -- [2026] WASC 301 GETHING J Page 74 230 In relation to item 9 (labour hire), Ms Marr gave evidence that she 'got a guy just out of the newspaper' for three to four hours at $18 per hour.182 Mr Scott did not recall any labourer being involved.183 Given that Ms Marr was largely responsible for arranging the repairs, I accept her evidence and allow this cost of $54. 231 In relation item 11 (painting), Ms Marr gave evidence that: 184 The painting was only the oil-based paint to seal the inky pen and the spray-on graffiti. And that was about $900 for the paint, but there was a lot of things like paint roller trays and brushes and drop sheets. She said that she sourced the paint though someone she knew at a cost of around $1,200.185 Mr Scott said that he did not think that any painting was done at that time.186 There is no documentary evidence either way. Given that it is not in issue that the walls were heavily graffitied, I find it plausible that Mr Marr would have at least made some attempt to paint them. As mentioned elsewhere, this ended up proving difficult as the ink leached through the paint (see [128] and [247]). I allow this cost at the $1,000 claimed. 232 In summary, leaving aside items 1 and 11, I find that Ms Marr expended $4,384 in November and December 1998 on repairing the Vandalism damage. I deal with the attribution of these expenses in section 9.7. 7. Events from 1999 to 2023 7.1 Rezoning applications 233 The facts in relation to the zoning applications were not in dispute. This was handled by Ms Marr who generally had a better recollection of the detail, so I find in accordance with her evidence. 234 As part of the rezoning application, various plans were prepared which showed Arteschi Designs and Scott & Associates both having space in the renovated building at Links Road.187 Having sufficient parking spaces was a significant issue for the council. 182 Transcript 16.2.26, page 358 (Marr). 183 Transcript 18.6.26, page 1630 (Scott). 184 Transcript 16.2.26, page 358 (Marr). 185 Transcript 16.2.26, page 358 (Marr). 186 Transcript 18.6.26, page 1630 (Scott). 187 An example of which is at PTB E, pages 35 - 36. -- 74 of 253 -- [2026] WASC 301 GETHING J Page 75 235 Around 1 December 1998, Ms Marr lodged the redevelopment application to rezone Links Road from residential to commercial. The initial zoning for Links Road did allow it to be used for certain commercial purposes, for example, medical businesses. 236 The initial application was knocked back by the City of Melville at the end of January or early February 1999. 237 Ms Marr then had some meetings with councillors from the City of Melville in effect to lobby them to view the application favourably. 238 There was then a further application in mid-1999. 239 In August 1999, Mr Scott wrote to adjourning landowners seeking their comments on the proposed rezoning application.188 240 The further application was again not successful. 241 In December 1999 an appeal was lodged with the Western Australian Planning Commission.189 The appeal was not successful. 242 In 2001, Mr Scott applied for a zoning change to allow him to occupy Links Road and operate this business from the premises. This application was also refused.190 243 Towards 2008 the City of Melville was working on a new town planning scheme for an area known as the 'city centre frame' essentially wrapping around the then Garden City shopping centre. However, work stopped on this due to work being done on nodes around the Mandurah train line.191 244 Links Road was ultimately zoned commercial in April 2014.192 7.2 Ms Marr's initial occupation 245 Ms Marr moved into Links Road to live on 2 April 1999, having moved from the Brentwood Property. She was paying what she described as 'rent' at the rate of $100 per week, usually on a monthly basis.193 188 DTB 1, page 20. 189 PTB E, page 38. 190 See generally: transcript 23.2.26, page 1177 ff (Scott); DTB 1, page 121. 191 See generally: transcript 17.2.26, page 507 ff (Marr). 192 See generally: transcript 17.2.26, pages 579 - 581 (Marr). 193 Transcript 16.2.26, page 407; transcript 17.2.26, page 445 (Marr). -- 75 of 253 -- [2026] WASC 301 GETHING J Page 76 246 Ms Marr gave evidence that some boxes belonging to Scott & Associates were also moved in the house around this time.194 In cross-examination, Mr Scott said that he moved 6 boxes in around the time Byron (Mr Scott's son) was using Links Road as a study venue, that being 2003 (see section 7.7). He moved the boxes out at the request of Mr Biesiekierski (see section 7.8).195 Mr Scott's evidence is more specific, so I prefer it. However, whether the Scott & Associates boxes were put there in April 1999 or 2003 is not material to the final analysis. 247 At this point the graffiti damage was still evident. The graffiti had been done in big xylon pens, large broad based markers. Attempts were made to paint over the graffiti. However, the ink bled out of any water based undercoat that was applied. This issue was only addressed at a later stage when an oil based undercoat was used. There were no curtains or window treatments there at that time. 248 Mr Scott's evidence was that Ms Marr was in occupation until January 2001.196 Ms Marr's evidence was that she fully moved out on 10 January 2000. She moved out to move down to the south of the State. She had been living between her residence down south and Links Road in the preceding months.197 The analysis in Exhibit 12, tendered by Mr Scott, (Summary of Contributions) shows a pattern of regular deposits by Ms Marr of amounts between $400 and $1,000 over the period from 12 April 1999 to 11 March 2001. After that date, the deposits by Ms Marr are more sporadic. I regard this evidence as being equivocal on the issue of when Ms Marr vacated. On balance, on this issue I find that Ms Marr's recollection is more reliable. This is because she was able to place the date of her move into the context of the other events that were happening in her life at the time, going into some detail. However, this issue is not material to the final analysis. 7.3 Period of vacancy 249 After Ms Marr moved out, Links Road was vacant for some time. 250 Ms Marr gave evidence that on two occasions, cheques deposited into Streamline 1 in 2001 by Mr Scott were dishonoured.198 194 Transcript 16.2.26, pages 408, 444 (Marr). 195 Transcript 17.6.26, page 1392 (Scott). 196 Transcript 23.02.26, page 1161 (Scott). 197 Transcript 16.2.26, page 412; transcript 17.2.26 pages 436 - 437 ff; transcript 19.2.26, page 874 (Marr). 198 Transcript 17.2.26, pages 452 - 453 (Marr). -- 76 of 253 -- [2026] WASC 301 GETHING J Page 77 251 Mr Scott agreed to finish the vandalism repairs. 252 Ms Marr gave evidence that during this period, Scott & Associates were supposed to be paying rent.199 She put to Mr Scott that the tenant during this period was Scott & Associates, which he denied.200 253 Mr Scott gave evidence that after Ms Marr moved out, he started to do some further rectification work. He applied a turpentine based undercoat which sealed in the graffiti ink, then a water based undercoat, then a topcoat. Ms Marr chose the paint, but Mr Scott did most of the work. The preparation and painting took some time. He paid for the paint, referring to a credit card payment to Taubmans in Welshpool on 5 January 2001 in the amount of $567.71.201 254 Mr Scott then said that he sanded the floors over September 2001. He referred to credit card payments to Workforce Equipment Hire in Fremantle for hiring sanding equipment.202 Mr Scott added that these expenses were not for Central Avenue (see section 7.5), as the sanding work done on that property was done over three days immediately following settlement on 20 July 2000.203 Ms Marr thought that the sanding work was done in October 2002.204 However, the invoices in evidence support Mr Scott's evidence that it was done in September 2001. There is also a letter from Mr Scott to Wesfarmers Federation Insurance Ltd (WFI) dated 18 October 2001 attaching a cheque for what I understand to be the insurance premium.205 Mr Scott goes on to state:206 We have cleared the house and sanded the floors, we are currently sealing the floors and will then re-paint all walls, ceilings and exterior timber. The walls of the enclosed porch will be replaced. We expect to be finished in two to three months. 255 Consistent with the documentary evidence, I find that while the sanding was done in September 2001, the internal painting was not done until October 2002 (see [278]). 199 Transcript 17.2.26, pages 579 - 580 (Marr). 200 Transcript 17.6.26, pages 1390 - 1391 (Scott); Transcript 18.6.26, page 1511 (Scott). 201 DTB 2, page 34. 202 DTB 2, pages 42 - 43. 203 Transcript 23.2.26, pages 1163 - 1164 (Scott). 204 Transcript 17.2.26, page 470 (Marr). 205 PTB E, page 43. 206 PTB E, page 43. See also: transcript 17.6.26, pages 1414 - 1416 (Scott). -- 77 of 253 -- [2026] WASC 301 GETHING J Page 78 256 Some repairs to the brickwork were also done at some stage.207 7.4 Home Loan 2 Facts which are not in issue 257 It is not in issue, and I find, that: (a) in around May 2002, Ms Marr and Mr Scott agreed to seek a further loan from the CBA; (b) by letter dated 13 May 2002, CBA advised that it had approved a loan application for Mr Scott and Ms Marr;208 (c) the loan in (b) was for $36,000 and was to be secured by a registered mortgage over Links Road (Home Loan 2); (d) Home Loan 2 was drawn down on 27 May 2002 for $36,000;209 (e) Ms Marr used an amount of $17,900 from Home Loan 2 as an advance to purchase a motor vehicle from Prestige Honda;210 and (f) the balance of the Home Loan 2 funds in the sum of $18,100.00 was paid into Streamline 1 on 15 May 2002.211 Ms Marr's evidence 258 Ms Marr consistently referred to Home Loan 2 as the 'equalisation loan'.212 For example:213 But it wasn't - the purpose of the loan was not a car loan. The purpose of the loan was equalisation. What I spent my equalisation funds on was my money. It wasn't a car loan. It has just been reinvented to be a car loan. 259 As to how Home Loan 2 came about, Ms Marr gave evidence that:214 207 Transcript 17.2.26, pages 459 - 460 (Marr). 208 DTB 1, pages 126 - 136. 209 PTB B, page 2. 210 DTB 1, pages 124 - 125; transcript 17.2.26, pages 464 - 465 (Marr). 211 PTB C, page 23; transcript 17.2.26, page 469 (Marr). 212 Transcript 16.2.26, pages 357, 402 (Marr); transcript 17.2.26, pages 463, 465, 476, 556 (Marr); transcript 18.2.26, pages 769, 771, 773 (Marr); transcript 19.2.26, page 814 (Marr). 213 Transcript 17.2.26, page 465 (Marr). 214 Transcript 17.2.26, page 463 (Marr). -- 78 of 253 -- [2026] WASC 301 GETHING J Page 79 MARR, MS: He isn't repaying me the loan. He's not making any progress on his repayments to me. It's just the bare minimum, just as if the only payment he had to make was the mortgage payment, not the rent, and not repay me the personal loan he borrowed. So I say, 'Look, what - what is happening?' And he goes, 'You know, ever since we bought the house, I'm really stretched, and things have gone wrong, and I've got some bad debts', and I went, 'Okay. What we will do is we will borrow some extra money', and this is how the equalisation loan comes about. That's called M2. Okay. So I say, 'Look, I - by my calculations, you owe me at least nine - I'm over this, what we're going to do is exactly the same as we did with the other one'. You say, 'Okay. We will borrow 36 grand'. I want to take 18 out, and I want to keep 9 in the joint account, and he kept 9 in the joint account. The other 9, he repaid to me. However, this has been completely recharacterised retrospectively. I had never heard anything other about it until I got the first defence and counter-claim. GETHING J: So that's - - - MARR, MS: I had no idea it was a car loan. 260 Ms Marr accepted that both she and Mr Scott were jointly liable for the whole amount of the loan.215 Then:216 MARR, MS: So we both borrowed 18, and - but I retained 27 of it. GETHING J: But as far as the bank is concerned, you borrowed 36 together? MARR, MS: Yes. Yes. Yes. GETHING J: Okay. MARR, MS: It wasn't between us and the bank, it was between us, to get Mr Scott to equalise and to provide us with a float. And also that we had an outstanding invoice because Ardross and Applecross were the first Perth suburbs to go to the underground power, and we got a quotation for the underground power for the property, of $6000. And I said, 'Well, how are we going to pay this?' And so we - we're going to need to borrow - we're going to need to borrow money for the carpets, for the blinds, the floor stripping, the sanding. We're going to stop using it as a study dive for the Scott children. We are going to use this for the purpose it was intended for. 215 Transcript 17.2.26, page 464 (Marr). 216 Transcript 17.2.26, page 464 (Marr). -- 79 of 253 -- [2026] WASC 301 GETHING J Page 80 261 In cross-examination, Ms Marr added:217 MARTINO, MS: Yes. And I think we then - we will be able to conveniently then just do the 2002 home loan too. Thank you. So let's talk about what occurred in 2002. So there's another home loan, isn't there. There's home loan 2?---Yes, the equalisation loan. Right?---Yes. Okay. And - so 2002. You call this the equalisation loan?---Because that's what it was. Right. And what do you mean by that, though?---So that he could finally catch up with me. So he caught up. He caught up - - -?---He could finally - he could finally catch up. Yes?---With me. Yes. Yes?---Because he - - - So his - you contributed more at settlement, and he has to make sure, in order - - -?---Yes, because I put in 42, and he put in six. Yes?---Yes, that's right. 262 And:218 And so why take on more debt?---Because he hadn't paid me what he owed me, and he caused the mortgage to go into default on numerous occasions, because he wasn't pulling his weight. Because he was financially overextended, because he purchased, with Miss Caruana, 4 Central Avenue. He was stretched, and he needed some working capital, and the house needed renovations. And I had come back from down south. I didn't need a new car. I wanted a new car. Yes?---And because he still owed me money, because he still owed me money - - - So that - - -?---How I spend my money when he repays me doesn't make it a car loan. It makes it an equalisation loan, that I just traded in the Subaru Liberty on a Eunos. 263 Then in response to my question trying to clarify what Ms Marr meant:219 217 Transcript 18.2.26, page 769 (Marr). 218 Transcript 18.2.26, page 771 (Marr). 219 Transcript 18.2.26, pages 772 - 773 (Marr). -- 80 of 253 -- [2026] WASC 301 GETHING J Page 81 Am I right in understanding the position that after this loan, which you call the equalisation loan, where you are able to take out of effectively the … take out $18,000, that after that, in your mind, the contributions have been equalised?---As long as I kept half of the remaining. There was … 18,100. Well, so in relation to the last 18,100 then - so it is half each - but as I understand it, the $36,000 became money that had to be paid off as part of what you have described as the joint endeavour?---Yes. Okay. And that at the - but because you had taken out a certain amount of that… the contribution to the joint endeavour had at that point in time been… equalised?---Not - not quite, but… I just wanted to… cut a deal. Yes. Okay. You cut a deal. But to your - well, you cut a deal to effectively equalise it?---Yes. I - I knew I was taking a - but he - he was in a lot of financial difficulty, a lot of pain. He is still around in a bashed-up old Ford Fairlane. And then - - -?---And you know, he is - - - Can I then understand your argument, your position - tell me if I am wrong - is that from 2002 onwards, you were both equally responsible for paying off all the loans?---Yes, as - as long as we got (indistinct) to - I didn't know he would - because I was pushing back when he installed his son. And - - - Can I understand that in two parts? Okay. So the first part is that your evidence is that from very early on, you were pushing Mr Scott to get fair market rent?---Yes. And that had two components. The first component was getting it up to - - -?---Up to standard. - - - fair market rent for a residential property?---Sure. Your second component was commercial?---Correct. Okay. So that is one part. Yes. Parallel to that, both of you have got a debt which you have to pay off… for which you are both equally responsible?---Yes. Yes. Yes?---Yes. -- 81 of 253 -- [2026] WASC 301 GETHING J Page 82 Mr Scott's evidence 264 As to how Home Loan 2 came about, Mr Scott gave evidence that:220 In 2002, Diana came to me and said that she would like us to take out an additional loan on the property for the purpose of her buying her car. And Diana had already picked out a car and the price was 17,900. I don't know if she had already paid the deposit on it or what. But this car was 17,900, and the proposal to me was we buy — initially the proposal was, 'Don't you want a car, too? We'll buy one each, 18,000 each.' I said I didn't need a car. She thought we might buy — borrow two cars, extend the house line out, borrow two — buy two cars and also have a bit of money left over for the house to do further renovations. I didn't need a car. I didn't consider Diana's request unreasonable because I was, you know, equity-wise, the initial larger payment in the beginning by Diana for that. I didn't object to that. I let her organise it and Diana went to the Commonwealth Bank and negotiated. I thought it was an extension to our existing loan, but it turned out to be a separate home loan altogether and that became home loan 2. But the agreement at that point was — I didn't know what I wanted to do with my 18,000, but Diana was going to take out the loan and spend her share of it on the car loan. I suggested I would perhaps leave mine in for the moment. We will leave mine in and do the renovations with it, and that would be my — a further contribution. Anyway, we proceed, she negotiates with the Commonwealth Bank, and there is even at one point, some of the documentation we have saved from that and Diana had negotiated and told the loans officer that initially we were going to buy two cars and 18,000 plus 18,000 was quoted in those initial loan application documents. We were granted the loan, and we received the loan in May 2002 and that became home loan 2. And the loan was delivered as a bank check for Diana for 17,900, a further 100 bringing it up to 18,000 for her and 18,000 for me. So deposited in our account was 18,100 and walking away with the check for 17,900 off to Prestige Honda was Diana to buy her car. So we have the extra line on the car. Now up to that point I've actually paid a little bit more mortgage than Diana, but I haven't caught up. But at that point I believe, and the figures will show, that I have now put in more equity into the deal, into the pot than Diana, including the deposits earlier on and everything. With the car transaction of 18,000, we have gone past equal, and I'm slightly ahead in my contributions. GETHING J: So do I understand your evidence then to be that the 18,000, I understand what your evidence is saying, your 18,000, you regard as a contribution to the property?---The 18,000, we've drawn 18,000 additional equity out of it. I've left mine back in the working 220 Transcript 23.2.26, pages 1164 - 1165 (Scott). -- 82 of 253 -- [2026] WASC 301 GETHING J Page 83 accounts for the moment and Diana has taken her 18,000 away and bought a car with it. But you consider that to be a contribution?---So I consider, we've both drawn out, and I've put back, effectively, 18,000. 265 And then in cross-examination Mr Scott said:221 Home loan 2 came about because you needed a car, and you even approached Commonwealth Bank on the premise that we both needed a car, and you opened discussions with Commonwealth Bank on that sort of loan arrangement. I turned around and said, 'I do not need a car. I do not know what I want to do with my half.' But I agreed that - to facilitate your equity - sorry - your financial problem at the time - and you needed a car, because you were driving up and down south, and the old one had become unreliable. We would borrow 36,000 of which half would be yours and half would be mine. It was never discussed at the time as an equalisation loan, and I will show you by documentation that I - although I started off a certain amount behind you, I was only 4000 or so behind you at the - at the point of that home loan. MARR, MS: Okay?---And then the home loan came about, and I was ahead of you at that point. 266 As to how the $4,000 was calculated, Mr Scott explained to Ms Marr:222 At the start of the original purchase, home loan 1, right at that point when we completed purchase I had made contributions of $7702, and you had made contributions, including your Brentwood equity drawdown of $29,541. On that basis, you were $21,838.50 ahead of me at the point we had taken out home loan 1. Then we continued on with contributions by both parties up to the point - I say a day before home loan 2, 14 May 2002. Additional contributions being made by both parties in that period, my contributions amounted to $32,476.19. They were Scott & Associates check account direct payments stream one-one contributions - 1500, sorry, 15 for the Scott * Associates direct contributions. $23,039 for Streamline One contributions, $5220.50 for visa account payments, and I had made two direct deposits into home loan 1, which was $801.64 and $1900 on the dates of the 15th of the 5th and 17th of the 9th. All up, my contributions were $32,476.19 in this period. Your matching contributions were. Streamline One, $13,063.10; some payments you made that I accept, which are vandalism payments, glass, $1600; phone connection, $250; power connection, $250; (indistinct) $230. Your contributions over this period between home loan 1 and home loan 2 were $15,293.10… 221 Transcript 17.6.26, pages 1394 - 1395. 222 Transcript 17.6.26, pages 1396 - 1397. -- 83 of 253 -- [2026] WASC 301 GETHING J Page 84 … . At that point, you were still ahead of me with your initial contributions and those intervening contributions by the sum of $4655. So you've gone from being 21,800 something to 4600 something. Then we take out on that day, 15 May 2002, we take out home loan 2. We reach fifty-fifty share, 50 per cent each share on that $36,000 home loan 2 borrowing. My share is deposited in Streamline One account, $18,000. Your share you use for a payment on a personal car, $17,900, and depositing the $100 balance also in the Streamline One account. So at that point in time, the figures add up from beginning to that day of home loan 2. My contributions total $58,178.69. Your contributions total $44,934.10. You are, at that point in time, $13,244.19 behind me. 267 I return to the issue of what, if anything, was agreed between the parties in section 9.7. 7.5 Mr Scott's relationship with Ms Caruana 268 At this point in the narrative, it is necessary to refer to the evidence relating to the relationship between Mr Scott and Ms Caruana. This relationship started in about 1998 and finished in 2012. It was a de facto relationship. Mr Scott did not own Links Road when the relationship commenced. At some stage, Ms Caruana found out that Mr Scott had purchased an interest in Links Road. She understood that Mr Scott and Ms Marr had purchased the property together. She knew that it was mortgaged. Mr Scott had told her from time to time that he was paying this mortgage. The first time she visited Links Road there was a 'whole lot of graffiti everywhere'.223 Mr Scott had told her that there was a possibility that the zoning could be changed on the property to commercial, and then they would have an office together. She was also aware that there were arguments between Mr Scott and Ms Marr about Links Road. 269 In 2000, Mr Scott and Ms Caruana purchased a property on Central Avenue, Beaconsfield (Central Avenue). Central Avenue was registered in Ms Caruana's name. They moved into Central Avenue to live. Before they moved in, she and Mr Scott did some work sanding the floorboards. Also, before they moved in the house was re-stumped. At some stage between 2001 and 2003 they repainted the interior of the house. Then in the mid 2000's they did some more major renovations to the house, putting on another bedroom with an ensuite, another living area, a laundry, kitchen and studio. No major plumbing work was done before the renovations. After the renovations, they undertook 223 Transcript 20.2.26, page 972 (Caruana). -- 84 of 253 -- [2026] WASC 301 GETHING J Page 85 landscaping to the front and back gardens, including the construction of a pond and a limestone wall. This latter work was done by a friend, Drago Dadich. 270 When the relationship ended, Mr Scott and Ms Caruana entered into an agreement as to how the properties that had interests in would be divided. Mr Scott retained his interest in Links Road in the settlement. 271 Ms Marr asserted that some of the invoices which Mr Scott has claimed for in this action were in reality for Central Avenue.224 I deal with this issue in section 16.3. 7.6 Rent Transactions Schedule and Monthly Rent Spreadsheet 272 Mr Scott prepared two detailed documents setting out his evidence in relation to rent received. The first was a document summarising all the amounts received into Streamline 1 and Streamline 2 by way of rent. The source documents used were the bank statements for each account.225 The amounts received from each tenant are itemised along with the date on which it was received. Where the bank statement description for the transaction is 'cash', Mr Scott has allocated it to the particular tenant based on the timing, frequency and amount of the payment. He gave evidence that where he received the rent in cash, he would deposit it into the bank account the next day or so. I will refer to this document as the Rent Transactions Schedule.226 I have reviewed the Rent Transactions Schedule and am satisfied that it accurately correlates to the relevant bank accounts. 273 The second document is a summary of the data in the Rent Transactions Schedule in an A3 spreadsheet, which I will refer to as the Monthly Rent Spreadsheet.227 Mr Scott pointed out an error in the Monthly Rent Spreadsheet being that he has shown that Ms Marr was in occupation to January 2002, when his evidence was that she was in possession only until January 2001. I make separate findings in relation to the period of each tenancy. However, at a general level, I accept Mr Scott's evidence that the data in Monthly Rent Spreadsheet is 224 Transcript 17.2.26, pages 458 - 459 (Marr). 225 Being Exhibits PTB C and PTB D. 226 Exhibit 17. 227 Exhibit 16. -- 85 of 253 -- [2026] WASC 301 GETHING J Page 86 a summary presentation of the data in the Rent Transactions Schedule.228 274 Counsel for Mr Scott took Ms Marr through the methodology used to create the Rent Transactions Schedule and the Monthly Rent Spreadsheet. It is fair to say that Ms Marr was generally sceptical about the analysis undertaken by Mr Scott.229 However, she did not make any point about the methodology undertaken generally which leads me to have any concerns about its reliability. She accepted that the amounts identified as being paid into Streamline 1 were in fact paid in, but commented that it was missing a few.230 7.7 Byron Scott 275 The first tenant was Byron Scott, one of Mr Scott's sons (whom for clarity of reference I will refer to as Byron). The Rent Transactions Schedule and Monthly Rent Spreadsheet show that:231 (a) Byron was a tenant for 39 weeks between March 2003 and December 2003; (b) Rent for Byron was paid into Streamline 1 from 12 March 2003 to 1 December 2003; (c) in total Byron paid $4,200 in rent; and (d) his average rent was $108 per week. 276 Ms Marr asserted that there were other amounts which had not been paid into Streamline 1. However, she was not able to give any admissible evidence to back up her assertion, so I do not find it proven.232 277 Ms Marr asserted that Byron was also a Scott & Associates employee earning $100 per week.233 However, there is no evidence of this and, in any event, it is not material to the final analysis. Ms Marr also asserted that the rent paid was two thirds of the fair market rent.234 I return to this issue generally in section 11.4. 228 See generally: transcript 24.2.26, page 1205 ff (Scott). 229 Transcript 18.2.26, pages 776 - 787 (Marr). 230 Transcript 19.2.26, page 850 (Marr). 231 Exhibits 16 and 17. 232 Transcript 19.2.26, page 850 (Marr). 233 Transcript 17.2.26. page 473 (Marr). 234 Transcript 17.2.26. page 474 (Marr). -- 86 of 253 -- [2026] WASC 301 GETHING J Page 87 278 It appears that Byron was in possession of Links Road prior to March 2003. On 23 October 2002, Mr Scott wrote to WFI saying:235 As discussed with your staff we confirm that this house has not been tenanted for the last six months. It has been and continues to be used by one of my sons studying for his TEE exams. He is in attendance during six or so day time hours five to six days each week but his regular presence will cease on completion of the TEE exaMs late November. In the last three weeks we have repaired and re-painted throughout. Prior to tenancy which is expected in January or February next year we still have extensive external painting, paving and landscaping to make good. We will advise you when we re-tenant the house. On the positive side we continue to have a "Back to Base" monitored alarm system (with Sesco Security) with smoke and movement detectors along with upgraded door locks. We advise that we did have several incidents mid this year when three high school students broke into the back Laundry area (not alarmed) to 'smoke' on a regular basis. Their access was denied by boarding up the area. They responded by setting fire to the grass around the back of the building but this was promptly extinguished by the Ranger, the Fire Brigade and myself. No damage was done. They have not returned. 279 I find what Mr Scott told WFI to be the truth. However, I regard Mr Scott as still being in sole occupation while his school age son was living at Links Road. Consistent with the financial records, I find that he did not become a tenant in his own right until March 2003. The letter adds to the chronology as to when the internal painting was done. 7.8 Richard Biesiekierski 280 The second tenant was Mr Biesiekierski, whom I have mentioned is Ms Marr's ex-husband. This was arranged by Ms Marr. There was a written lease, which is not now able to be found and so is not in evidence. The rent was $130, which had been discounted by $20 as there were still Scott & Associates boxes on the back veranda. Ms Marr thought that Mr Biesiekierski, moved in in November 2023 and stayed for about 11 months.236 281 The Rent Transactions Schedule and Monthly Rent Spreadsheet show that:237 235 PTB E, pages 50 - 51. See also: transcript 17.6.26, pages 1413 - 1414 (Scott). 236 Transcript 17.2.26, pages 475 - 478 (Marr). 237 Exhibits 16 and 17. -- 87 of 253 -- [2026] WASC 301 GETHING J Page 88 (a) Mr Biesiekierski, was a tenant for 52 weeks between February 2004 and February 2005; (b) rent for Mr Biesiekierski, was paid into Streamline 1 from 10 February 2004 to 27 January 2005; (c) in total Mr Biesiekierski, paid $6,590 in rent; and (d) his average rent was $124 per week. 282 In closing submissions, counsel for Mr Scott recorded the amount of rent received from Mr Biesiekierski as being $6,449.238 The basis for the discrepancy between this figure and that in [281] is not apparent. The figure in [281] reflects the evidence which is summarised in the Rent Transactions Schedule, so that is the basis of my finding. 283 The evidence in the Rent Transactions Schedule and Monthly Rent Spreadsheet largely accords with that of Ms Marr, but is, in my view, more accurate as it is based on the financial records. So I find in terms of it. Otherwise, I accept the evidence of Ms Marr at [280]. 7.9 Brian Rilston 284 The third tenant was Brian Rilston. Mr Rilston's tenancy was arranged by Ms Marr. There was a written lease, which is again is not in evidence. Mr Rilston and his partner moved in at the beginning of January 2006 and moved out about April 2007. The rent was $150 per week.239 285 At the commencement of the tenancy, there was an agreement between Ms Marr and Mr Rilston that he would build a fence, with materials supplied by Ms Marr and Mr Scott. In return, Mr Rilston would get a discount on his rent for three weeks.240 This occurred, with Ms Marr using the rent received in cash to pay for the materials at Bunnings.241 In closing submissions, counsel for Mr Scott submits that this amount ($600) should be brought to account in the final analysis.242 However, in the interests of simplicity, I will offset the expenses with the income so that it is neutral to the analysis. 238 Defendants’ Closing Submissions, Annexure B, Part D. 239 Transcript 17.2.26, pages 474 - 482 (Marr). 240 Transcript 17.2.26, pages 482, 492 - 493 (Marr). 241 Transcript 19.2.26, page 856 (Marr). 242 Defendant’s Closing Submissions, Annexure A, page 2. -- 88 of 253 -- [2026] WASC 301 GETHING J Page 89 286 Mr Scott only found out that Mr Rilston had left by going around to the house to see if he could catch up on outstanding rent, only to find the house empty. He said that Mr Rilston left with rent outstanding.243 287 Mr Scott said that he sent Mr Rilston a letter dated 30 June 2006 dealing with outstanding rent.244 Ms Marr says that this letter is fabricated.245 I do not need to resolve this issue to determine the issues in dispute. 288 Ms Marr asserted that Mr Scott obtained other payments from Mr Rilston that he did not account for.246 Mr Scott denied this.247 As Ms Marr did not adduce any evidence to back up her assertion, I accept Mr Scott's evidence that he did not receive any payment over and above those he accounted for in the Rent Transactions Schedule. 289 The Rent Transactions Schedule and Monthly Rent Spreadsheet show that:248 (a) Mr Rilston was a tenant for 69 weeks between December 2005 and April 2007; (b) rent for Mr Rilston was paid into Streamline 1 from 10 January 2006 to 5 April 2007; (c) in total Mr Rilston paid $7,158 in rent; and (d) his average rent was $104 per week. 290 The evidence in the Rent Transactions Schedule and Monthly Rent Spreadsheet largely accords with that of Ms Marr, but is, in my view, more accurate as it is based on the financial records. So I find in terms of it. As the cash rent received at the outset was immediately offset with the purchase of materials, it is neutral in the final analysis, so I simply leave it out of figures in [289]. 7.10 Tim Brown 291 The fourth tenant was Tim Brown. Mr Brown's tenancy was also arranged by Ms Marr. There was a written lease (which is not in evidence) in his name alone, but he had a partner. Ms Marr thought 243 Transcript 24.2.26, page 1207 (Scott). 244 DTB 3, page 4; transcript 24.2.6, page 1210 (Scott). 245 Transcript 17.2.26, pages 492 - 493 (Marr) 246 Transcript 19.2.26, pages 852 - 853 (Marr). 247 Transcript 24.2.6, pages 1210 - 1211; transcript 17.6.26, pages 1367, 1369 (Scott). 248 Exhibits 16 and 17. -- 89 of 253 -- [2026] WASC 301 GETHING J Page 90 that the lease started at the end of May 2007 at $160 per week. She did not know exactly when he vacated.249 292 There is in evidence some letters which Mr Scott says he sent or gave to Mr Brown dealing with rent.250 Ms Marr asserts that they are fabricated.251 Mr Scott identified one as a draft that was not sent.252 It is not necessary for me to consider those letters in order to determine the issues in dispute. 293 Mr Scott only found out that Mr Brown had left by going around to the house to see if he could catch up on outstanding rent, only to find the house empty. He said that Mr Brown left with rent outstanding.253 Mr Scott said he discussed rent increases and problems he was having with Mr Brown with Ms Marr at the time.254 294 Ms Marr asserted that Mr Scott obtained other payments from Mr Brown that he did not account for.255 Mr Scott denied this.256 As Ms Marr did not adduce any evidence to back up her assertion, I accept Mr Scott's evidence that he did not receive any payment over and above those he accounted for in the Rent Transactions Schedule. 295 In closing submissions, counsel for Mr Scott submitted that Ms Marr had received two weeks rent and a bond from Mr Brown which she had not accounted for.257 However, there is no evidence to this effect, so I do not allow the amount. 296 The Rent Transactions Schedule and Monthly Rent Spreadsheet show that:258 (a) Mr Brown was a tenant for 61 weeks between May 2007 and July 2008; (b) rent for Mr Brown was paid into Streamline 1 from 28 May 2007 to 13 June 2008; (c) in total Mr Brown paid $11,800 in rent; and 249 Transcript 17.2.26, pages 482 - 484 (Marr). 250 DTB 3, pages 6, 10. 251 Transcript 17.2.26, page 486 (Marr). 252 Transcript 17.6.26, pages 1356 - 1459 (Scott). 253 Transcript 24.2.26, page 1207 (Scott). 254 Transcript 17.6.26, page 1362 (Scott). 255 Transcript 19.2.26, pages 852 - 853 (Marr). 256 Transcript 24.2.6, pages 1210 - 121; transcript 17.6.26, pages 1367, 1369 (Scott). 257 Defendant’s Closing Submissions, Annexure A, page 2. 258 Exhibits 16 and 17. -- 90 of 253 -- [2026] WASC 301 GETHING J Page 91 (d) his average rent was $193 per week. 297 Ms Marr had two issues with the Rent Transactions Schedule. The first relates to an amount of $1,500 which was transferred into Streamline 1 as a phone transfer on 21 May 2008. Ms Marr's evidence was that she paid this in at the request of Mr Scott.259 In cross- examination, Mr Scott did not dispute that this might be the case.260 So I find in terms of Ms Marr's evidence. This amount is appropriately characterised as a contribution by Ms Marr. 298 The second is the last payment of $500 which was paid into Streamline 1 by phone transfer on 13 June 2008. Ms Marr put to Mr Scott in cross-examination that this was an amount paid in by Kevin. Mr Scott disagreed. 261 In section 7.12 I find that it is correctly characterised as rent paid in by Mr Brown. 299 With the exception of the point in [297], the evidence in the Rent Transactions Schedule and Monthly Rent Spreadsheet largely accords with that of Ms Marr, but is, in my view, more accurate as it is based on the financial records. So I find in terms of it. Taking into account the point in [297], I find that: (a) Mr Brown was a tenant for 61 weeks between May 2007 and July 2008; (b) rent for Mr Brown was paid into Streamline 1 from 28 May 2007 to 13 June 2008; (c) in total Mr Brown paid $10,300 ($11,800 - $1,500) in rent; and (d) his average rent was $169 per week. 300 In closing submissions, counsel for Mr Scott submitted that the correct amount of rent for Mr Brown was $11,300.262 The reason for this is not apparent, though it could be some confusion regarding the figures at [297] and [298]. On my review of the evidence, the amount at [299(c)] is the correct amount. 259 Transcript 19.02.26, page 864 (Marr). 260 Transcript 17.6.26, page 1370 (Scott). 261 Transcript 17.6.26, page 1371 (Scott). 262 Defendant’s Closing Submissions, Annexure B, Part D. -- 91 of 253 -- [2026] WASC 301 GETHING J Page 92 7.11 Streamline 2 301 On 9 June 2009, Mr Scott open another account with the CBA, this time in his name alone. This has been referred to as Streamline 2. There is in evidence an almost complete set of the bank accounts for Streamline 2.263 302 Mr Scott opened Streamline 2 so that when he made a deposit, it would remain there until the bank withdrew it. He said that Ms Marr had been removing money from Streamline 1 without his agreement.264 7.12 Kevin Scott 303 The fifth tenant was Kevin, Mr Scott's brother. 304 Ms Marr 'absolutely went ballistic' when Kevin moved in.265 She was concerned that the rent being paid by Kevin was below market, a concern she raised with Mr Scott a number of times.266 305 Later on, following a conversation with her accountant, Ms Marr became concerned that the tenancy was not being conducted on an arms-length basis, which may have tax implications for her.267 Ms Marr requested Mr Scott to provide her with information about the rent and expenses for Links Road so she could prepare her tax returns. She received some information, 'grudgingly and incomplete'.268 306 Kevin lived at Links Road between 2008 and 2011 with his son and daughter. There was no written lease and he did not pay a bond. The initial rent was in the ballpark of $200 per week. This suited Kevin given that the property was very old and in disrepair. He said he was not very stringent on paying the rent on a weekly basis and sometimes paid it three weeks in arrears. 307 Kevin did not give evidence as to the precise date he commenced his tenancy. In the Rent Transactions Schedule, Mr Scott says that Kevin's tenancy was from 4 August 2008. The evidence of Kevin generally accorded with that of Mr Scott and not that of Ms Marr. For this reason, I prefer find Mr Scott's recollection on the specifics to that of Ms Marr. I accept Mr Scott's evidence that that Kevin's tenancy was 263 PTB D. 264 Transcript 17.6.26, pages 1448, 1450 (Scott). 265 Transcript 17.2.26, pages 488, 508 (Marr). 266 Transcript 17.2.26, page 505 (Marr); PTB E, pages 153 - 154. 267 Transcript 17.2.26, pages 509 -511 (Marr). 268 Transcript 17.2.26, pages 511 - 512 (Marr). -- 92 of 253 -- [2026] WASC 301 GETHING J Page 93 from 4 August 2008. This means the amount referred to in [298] is properly rent for Mr Brown. However, whether the rent was for Mr Brown or Kevin is not material to the final analysis: what is material is that it is correctly characterised as rent. 308 The Rent Transactions Schedule and the Monthly Rent Spreadsheet show, and I find, that:269 (a) Kevin was a tenant for 160 weeks between 4 August 2008 and 11 September 2011; (b) between August 2008 and May 2009, payments were made into Streamline 1, totalling $9,865; (c) from June 2009 to September 2011, payments were made into Streamline 2, totalling $19,050; (d) in total Kevin paid $28,915 in rent; and (e) his average rent was $181 per week. 309 There was an agreement between Kevin and Mr Scott to the effect that he would pay less than market rent in return for doing work on the property. Kevin explained that he was in the building industry. The house needed a few things done. He was to carry out works to the house to bring it up to a reasonable standard. Kevin was not charging for his labour, but Mr Scott paid for any materials required. On one occasion (24 February 2011), Kevin's rent was reduced from $800 to $710 to offset the fact that Kevin had spent $90 on road base for the hard stand car parking at the front of the house.270 310 In examination in chief, Ms Marr took Kevin to a list of works which Mr Scott had itemised in an email to her dated 14 February 2011.271 The works were: • Filled and levelled the front yard ● Retained the northern edge of the front yard ● Filled the backyard (neighbour's screen wall/retaining wall footings were exposed piles) 269 Exhibits 16 and 17. 270 Transcript 24.6.26, pages 1209 - 1210 (Scott). 271 Exhibit 1. -- 93 of 253 -- [2026] WASC 301 GETHING J Page 94 ● Retained the rear screen wall with an additional raised limestone garden bed (neighbour's screen wall was rotating onto our property prior to this) ● Paved lower service area to side of house ● Built steps down to lower service area ● Twinside retaining wall to rear back corner ● Garden shed and pavers under to rear back corner ● Kitchen renovation - cupboards, benches, new sink etc, ● Fireplace re-cladding and replace kerosene heater with a gas heater ● Removed Sunroom walls (corrugated iron covered timber window frames and totally busted and broken rear sliding door) and replaced with modern sliding door frames - not yet complete as glass is yet to be installed ● Hardstand to parking area ● Second hand stainless steel 900 mm stove/oven and range hood. The old oven had one hinge door when Tim left ● Stud and gyprock infill to dining room arch to allow it to be used as a third bedroom This he did off his own back) 311 Kevin confirmed that he did all this work, noting: (a) in relation to dot point 3 (filling in the background), he built a limestone retaining wall in front of it; (b) in relation to dot point 7 (twinside retaining wall), this was inside the fence line of Links Road, not on the adjoining lot; (c) in relation to dot point 9 (kitchen renovation), he sourced a kitchen that was being removed from another house that was approximately the right dimensions, pulled it apart, modified it and built it into Links Road; (d) in relation to dot point 10 (gas heater), he could not recall whether the gas heater was connected; and (e) in relation to dot point 14 (infill to dining room), by blocking up the archway with a stud wall and gyprock, he could use the former dining room space as a bedroom for one of his children. -- 94 of 253 -- [2026] WASC 301 GETHING J Page 95 312 Mr Scott gave evidence to the same effect.272 I find that Kevin did all the work set out in [310] and [311]. 313 Kevin did not consult Ms Marr in relation to any other work. He was not aware of any future plans for the property. 314 Kevin could not recall having any problems with the gas and hot water systems before he moved out. 315 Around 2011 Mr Scott had a conversation with Kevin about the rent being increased. Kevin was not prepared to pay what was being asked as he did not feel that the house was at that value. He found another rental property in the area and moved into that. 316 For about seven years Kevin did work for Scott & Associates as a subcontractor. This commenced about a year or two prior to when he lived at Links Road. Specifically, he undertook compaction tests for ground stabilisation. He was paid for that work by Scott & Associates. The rent did not come out of what he was being paid by Scott & Associates. There is no basis in the evidence for Ms Marr's assertion that there was a 'contra' deal whereby the rent was reduced from $300 to $200 in return for Kevin undertaking work for Mr Scott.273 317 Kevin knew that Mr Scott and Ms Marr both had shares in Links Road. He did not meet Ms Marr until he had moved into the property. 318 In terms of matters in dispute, when asked whether he had ever attended any meeting with Ms Marr and Mr Matthews, Kevin gave evidence that he did not know who Mr Matthews was. He recalled meeting Ms Marr twice in the three years he was at the property, but did not recall her being there with anyone else. He could not recall Ms Marr ever having told him that she thought the rent was too low. 7.13 September 2011 meeting 319 It is not in issue that in September 2011 there was a meeting at Links Road attended by at least Ms Marr, Mr Matthews and Mr Scott. 272 Transcript 23.2.26, pages 1175 - 1176 (Scott) ff. 273 Transcript 19.2.26, page 868 (Marr). -- 95 of 253 -- [2026] WASC 301 GETHING J Page 96 Ms Marr's evidence 320 Ms Marr gave evidence that in addition to her, Mr Matthews and Mr Scott, Mr Scott had brought along two of his friends, Eric and Sarah Kingsmill. As to what was said:274 GETHING J: What did you say, and what did he say? MARR, MS: I said, 'This ouster has got to stop.' 'No. I've moved in.' I went, 'No. No, you haven't.' And - - - GETHING J: Now, did you know that you said the word 'ouster'? MARR, MS: Yes, I did. GETHING J: Did you have any understanding as to the word 'ouster' in 2011? MARR, MS: Yes. Because I started reading law books. I started reading about property - - - GETHING J: So you used that word? MARR, MS: Yes, I actually used that word. I definitely did. GETHING J: Okay. So tell me about the conversation, what you said, what Mr Scott said. MARR, MS: Well, Mr Scott said, 'I had expired all my equity in the property, and I'm taking control. I have paid - I have paid - I have paid $100,000 in the last 10 years. I have paid everything off.' … … He said he had had a really painful breakup with Ms Caruana, and it - they - that he had moved in. 321 Ms Marr described the conversation as 'really heated'. She continued:275 MARR, MS: And it's - Phil says he has moved in. GETHING J: Yes. 274 Transcript 17.2.26, pages 524 - 525 (Marr). 275 Transcript 17.2.26, pages 526 - 532 (Marr). -- 96 of 253 -- [2026] WASC 301 GETHING J Page 97 MARR, MS: He hadn't moved in. He was pretending he had moved. I said, 'I will take over. I will get this show back on the road. It is going to go to commercial. It is not going to be used' - and all of this time, I am writing to him, for the whole three years of the ouster with Kevin. Kevin is a placeholder. Kevin is there to keep me out. … MARR, MS: He said, you haven't contributed …. MARR, MS: I said, yes, I have contributed. I have contributed 50 per cent of a fair market rent, arm's length rent, for the whole of the duration. It has been leased 100 per cent of the time. I have contributed that. Just because you shrank the rent, I don't care if Kevin paid $200 a week. I want half the fair market rent, and that is 390. Therefore, I will have 195, and you can keep the other five dollars. That is how I contributed. And then, I said, you didn't pay the mortgage. You stopped paying the mortgage unbeknown to me. … GETHING J: So what are you saying at the meeting, and what is he saying? MARR, MS: Okay. So what he is saying is, I have moved in. I am in a really messy relationship breakdown with Jacinta. And he was in a messy relationship breakdown with Jacinta. … MARR, MS: I said, 'Give me a price to buy you out,' and he said, 'You have expired all your equity. You don't have any equity in this house.' I said 'all right', and Geoff Matthews, my housemate, was coming into his settlement, his property settlement, at about that time, and Geoff said, 'Well, how much for me to buy it out?', and he said, 'I've got a sworn valuation from Propell that says it's worth 660 grand or 590, but I' - - - GETHING J: So who said that? MARR, MS: Mr Scott. GETHING J: Mr Scott, yes. MARR, MS: He says he's got a sworn valuation, but he's so far in front of me that he will sell half to Mr Matthews for 330. Well, that valuation says 590, that particular one. We did find that one. So he's telling me I've got no equity; I've got no right; it's morally wrong for me to be in the property that I've funded and financed; that he's -- 97 of 253 -- [2026] WASC 301 GETHING J Page 98 completely in control; he's the property manager, and, 'It's my way or the highway. Suck it up, Buttercup,' pretty much. And I'm going, 'This is completely outrageous. If I go' - - - GETHING J: So how did the meeting end? MARR, MS: Geoff went outside to the back, and he just went, 'I can't believe this; you've all been to university, and I'm just a truck driver.' .. MARR, MS: He - then Phil follows him out, and Mr Matthews will tell you the offer Mr Scott made to him. He will tell you when he's in the box GETHING J: Yes. MARR, MS: And then I just go, 'I'm getting out of here, and it's a kangaroo court. This is an outrage. This is a travesty. You're only doing this to keep me out,' and he says, 'Well, I'm living here,' and of course, he wasn't living there. I would have moved in that day and taken control, and it would have been a done deal….. Mr Matthew's evidence 322 Mr Matthew's gave evidence that he has been friends with Ms Marr for more than 45 years. Around 2011, he was sharing a rental property with Ms Marr in Rossmoyne. 323 Mr Matthews gave evidence of on a number of occasions being in a room with Ms Marr when she was having a conversation with Mr Scott on speakerphone. As to what he heard:276 Okay. Could you - could you tell us the one that stands out most in your mind, and try and place it in terms of timing?---Well, the whole - not one that stands out in my mind, they all did. It was just - it was the same thing. Diana wanted half a fair market rent, and Phil was saying, I decide what the rent is going to be. And it just went backwards and forwards, the same thing, you know. So do I understand your evidence to be that this occurred over a number of conversations that you heard?---Quite a lot, quite a lot. So you're hearing, essentially, the same thing from Ms Marr, the same thing from Mr Scott?---Yes, yes, yes, yes, yes. … 276 Transcript 20.02.26, pages 987 - 988 (Matthews). -- 98 of 253 -- [2026] WASC 301 GETHING J Page 99 MARR, MS: Okay - - -?---And it was - I was - that's when I said to Diana, you've got to sort this out, you've got to get a meeting with Mr Scott and sort this out. 324 The first time he met Mr Scott was when he went around to Links Road with Ms Marr for a meeting. This occurred in September 2011. The purpose of the meeting was to 'try and sort out what was going on with the house, with the rental'.277 325 Mr Matthew's gave evidence that Ms Marr had told him that she had an interest in Links Road:278 Okay, and what did she tell you about her - what interest did she tell you that she had?---That she had bought this property, and Phil had bought into it, and it was going to be turned into a commercial venture as soon as they could. 326 Mr Matthews said that in addition to Ms Marr and Mr Scott, there were two other people present. They were friends of Mr Scott, a husband and wife. He recalled that the wife's name was Sarah, but could not recall the husband's name. The house was empty. They sat on four fold-up chairs in the lounge room, with Mr Scott sitting on a paint tin. 327 As to what occurred:279 Can you remember what Ms Marr was saying, what you were saying, what Mr Scott was saying?---Yes, I've got to be - I don't think I said a word. It was just - it was just - it wasn't a meeting; it was an ambush, where Phil and the other two, especially the lady - Sarah, I think her name was - just - it was just a screaming match. … I'm interested in what you heard people say and what you said?---'Diana's used up all her equity. She hasn't contributed into the house.' And when Diana - yes, but you know, like, the rental income - she's entitled to half of the rental income, but that didn't matter according to them. That wasn't a contribution, you know, and Phil was saying that, 'You only get rent for a two-bedroom house, and it's whatever I decide what the rental property - whatever the rent is going to be.' And I went, yes, okay, you can't say that, but I thought, well, that was part of it. 277 Transcript 20.2.26, page 981 (Matthews). 278 Transcript 20.2.26, page 982 (Matthews). 279 Transcript 20.2.26, pages 982 - 983 (Matthews). -- 99 of 253 -- [2026] WASC 301 GETHING J Page 100 And what else can you recall - so what I just want to do is try and exhaust your memory. Is there anything else you can call either Sarah saying or Phil saying?---It was just - - - MARR, MS: Who was living there?--- - - - 'You've used up all your equity.' GETHING J: Just hold it?---You know, that just stood out: 'You've used up all your equity.' Okay, you've got a strong recollection of that?---Yes. Yes, your Honour, sorry. Can you remember anything else that Ms Marr said?---I can remember Diana trying to say things and just got shouted down every time. She couldn't get a point across. It just got shouted down, and it was Phil saying it's whatever he reckoned would happen with the house. Diana had no say in it. And then he started on about the tenants that Diana had in the house, and I got upset with that. I didn't say anything… 328 And:280 Okay. So just thinking back, just take a moment, anything else you can recall about that meeting that - thinking about things you said, Diana said, Phil said, Sarah said, or do you think you've exhausted your memory?---Diana, I can remember her saying that she - she was entitled to half the rent, and it was half of a fair market rent. Yes?---And Phil was saying he can charge whatever he wants, and it really didn't matter what Diana thought. But she was always on about it, you know, you can subsidise your family, but it comes out of your side of the - the ledger, so to speak. 329 Mr Matthews ended up leaving the room to go to the toilet. Mr Scott then appeared and said to him: 'Give me 330, and I will walk away'. Mr Matthews said no.281 330 In cross-examination, it was put to Mr Matthews that Mr Scott did not say that he would decide what the rent would be. Mr Matthews did not accept this. It was also put that Mr Scott did not say that Ms Marr had used up all the equity. Again he disagreed. Rather, Mr Mathews' evidence was that they said that she never paid her share of the mortgage. In response, Ms Marr tried to explain that half a fair market rent is more than her part of the mortgage. 280 Transcript 20.2.26, page 984 (Matthews). 281 Transcript 20.2.26, page 984 (Matthews). -- 100 of 253 -- [2026] WASC 301 GETHING J Page 101 Mr Scott's evidence 331 Mr Scott described the meeting as being very informal, more that Mr Matthews accompanied Ms Marr to the premises. It was not a scheduled meeting. Kevin had just left the premises. Mr Scott had some sleeping gear there and some furniture. 332 As to what was said:282 And was there anything said about the mortgage at that time?---On that occasion, Ms Marr was making the comment that she still considered herself the majority owner of the property and believed she had made larger contributions than I, and was discussing - discussing that in a heated arrangement. So, that discussion was about the mortgage and who paid a - a portion of the mortgage, and - and whether they - we had matching portions of the mortgage. Or one party had paid more than another. And it was my opinion that I had paid more of the mortgage and made more of the contributions up to that date. And the books very definitely show that. And it was Ms Marr's opinion that she was ahead of me on the mortgage payments, and that was her opinion on the mortgage and our contributions to date, that she was way ahead. And can you recall any discussions, just about the rent?---The - the rent, at this point - we've already had a rent discussion some months earlier for Kevin Scott being present. He has just moved out at the time of this meeting. I did increase the - the rent in Kevin's days, and then Kevin decided in his - his - what turned out to be his last days, and Kevin decided that he would probably like to move on, and he did so. So, the rent. The rent was an issue with Diana and myself. A point of conflict. … Part of the discussion was Ms Marr believed the house, also, was now rated as a three bedroom house, not a two-bedroom house, because a dining room has now been used as a bedroom. That was - that was an issue she raised when Kevin was there and wanted Kevin to pay more rent because he had improved them, the situation, and put in a small wall and an archway, within an archway a lightweight stud wall, and lined it, and that became - the access point was no longer between the dining room and the living room, and it would be closed off. We had a difference of opinion on the two-bedroom, three-bedroom issue, and particularly as Kevin had undertaken this work, why should he have suffered and had his rent increased. The house was no larger, it was just the using of a dining room as a bedroom, which any tenant is entitled to do. 282 Transcript 24.2.26, pages 1196 - 1197 (Scott). -- 101 of 253 -- [2026] WASC 301 GETHING J Page 102 Findings 333 I generally consider Mr Matthews to have the most reliable recollection of this meeting. It was a standalone occasion for him for which he expressed having a strong recollection. This is in contrast to Ms Marr and Mr Scott for whom this meeting was one in a long series of interactions in which each raised similar concerns. However, the evidence of Ms Marr and Mr Scott does provide some context as to what Mr Matthews recalls being said, which I have added to my findings. On that basis I find the following facts: (a) the meeting on 11 September 2011 was attended by Ms Marr, Mr Matthews, Mr Scott and two friends of Mr Scott, a married couple; (b) the purpose of the meeting was to try and sort out what was going on with Links Road, in particular as regards rent; (c) the conversation was heated; (d) at one point Mr Scott said words to the effect that Ms Marr had used up all her equity as she had not contributed to the house; (e) in response Ms Marr said that she was entitled to half the fair market rent, which was more than her part of the mortgage; (f) Mr Scott said that he could set the rent at whatever he decided; (g) Ms Marr said that if Mr Scott wanted to subsidise his family, that would come out of his side of the ledger; (h) Mr Scott said that he had a valuation of Links Road for $660,000; and (i) Mr Scott made an offer to Ms Marr, through Mr Matthews, to sell his interest in Links Road to her for $330,000. 7.14 2011 Correspondence 334 Ms Marr's position at the time is set out in a letter which she sent to Mr Scott in 2010 or 2011 (her evidence was that if the version in evidence was a draft, the final was very similar):283 283 PTB E, page 152; Transcript 17.2.26, pages 533 - 534 (Marr). -- 102 of 253 -- [2026] WASC 301 GETHING J Page 103 Dear Phil I have had further legal advice and confirm that you are not legally entitled to exclude me from my property. As a tenant in common i am entitled to reside at my property and you can share it with me if you like but you may not exclude me from it. You are not a sole proprietor and Links Road is not a charity in favour of your family. I reiterate that your non-arms-length transactions with your family will not be subsidised by me and that the entire discount you see fit to provide to them is to be; since your receipt of written notice in 2008 and again in 2009; debited from your half share of a fair market rental. During the last 5 years you have given away or foregone from your share of the fair market rental about $25,000. The situation is intolerable and it will not persist. You have been in receipt of written notice from me that During our telephone conversation on Wed 17 April, you said that you were currently going through a "messy separation" with your ex-partner. Because she is entitled to a share of any property you acquired during your relationship, this will include any entitlement your ex-partner may have to your 50% share in the Links Rd property. Because I own 50% of the property; and there is now a third party with arguably a 50% claim over your 50% of the property; it is critically important that all financial matters be sorted out as soon as possible. After all we wouldn't want your ex to miss out on her fair share of your half of the property would we? You may soon be in a position to buy out my half share depending upon how you split the Central Ave property with your ex-partner. Right now is therefore the ideal time for us to come to an agreement re the Links Road property settlement. You advised that you wish to keep the Links Road property inter alia so that you can continue to subsidise your family members by providing a discounted rental in respect of your half of the property. Naturally your ex-partner's share of Links Rd is affected by your past largesse firstly to Kevin and more recently to your sons. Because I was not responsible for your retention of I reiterate that any rental discount you have agreed to provide is to be offset against your 50% share and not mine as has been repeatedly advised to you in writing. I estimate that over the last 5 years you have unilaterally provided your family with at least $20,000 in rental subsidies. You were unable or unwilling to tell me how much rent is being paid. This is an unacceptable state of affairs. The rent is way too low and you know this fact. There are several nearby properties for lease advertised on the net and which form a good comparison as to a fair market rental for Links Road. They include:- -- 103 of 253 -- [2026] WASC 301 GETHING J Page 104 130a Risely St 2x1 duplex with carport $380/week 3a Torridon St 2x1 duplex with carport $450/week 80 Reynolds Rd 2x1 house no carport $410/week It appears that there may well have been another page to this letter, but it is not in evidence. 335 Mr Scott's position is also set out in a letter from around this time, dated 14 September 2011. Ms Marr recalls receiving this letter.284 The letter reads:285 Dear Diana 1 LINKS ROAD, ARDROSS - MAINTENANCE REQUIREMENTS I confirm my advice to you, I have moved into 1 Links Road, Ardross. I will be occupying it and using if for for my own purposes for some period of time. This should be acceptable to you given you moved in and took sole occupancy yourself for a similar period shortly after settlement was made on the property. You paid no rent during that period. The property needs urgent repairs as follows: - 1. The brickwork mortar joints are fretting very badly on several areas of the two front piers and also on a number of external face brick areas around the house. This is a safety issue with respect to the two front piers; it must be done without further delay. One of the worst wall areas is exhibiting brick dislodgement due to fretting. If we do not correct this now we will be facing much greater repair costs. 2. The bottom of the bathroom door has rotted away; the whole door requires replacing. 3. The electric HWS is shutting off every couple of minutes when running; this requires checking by a plumber and either be repaired or be replaced. It is now approximately 8 years since it I originally replaced it. These repairs are required to halt further deterioration and for the residence to be in usable, safe and leasable condition. Other general maintenance is required in the following areas: - 284 Transcript 17.2.26, pages 535 - 537 (Marr). 285 PTB E, pages 156 - 158. -- 104 of 253 -- [2026] WASC 301 GETHING J Page 105 1. The kitchen floor vinyl tiles delaminated (two layers). This was removed by the last tenant. He has subsequently installed modern kitchen benches and sink after removing the adhesive and sanding the floor. This floor has not been sealed. I will arrange for it to be sealed before it becomes damaged with use and for cleanliness issues. 2. Half-way through the second last tenancy (T Brown) the freestanding stove had got to the point where the oven door was only connected with one hinge (the other fractured through) it would only remain closed with a permanent timber strut off the floor. In addition, two of the stove elements had failed. This has since been replaced with a purchased second-hand electric built- in oven, gas cooktop and S/S replaced with their modern equivalent as part of the renovation works provided by the last tenant. The gas cooktop stove requires gas connection though, so I will arrange this. We do require a working cooktop for a leasable residence. 3. The two shower cocks have reached the point where they are not completely shutting down. Their both require a plumber to replace their washers because they have seized components inside. 4. The basin hot water tap has a badly corroded body and could do with replacement with a similar tap. 5. The bathroom ceiling and walls have very bad peeling paint. These need scraping and repainting before the house can be leased again. The fan is no longer running and needs replacing. 6. An area of the kitchen ceiling was water damaged years ago and has peeling paint. The water leak occurred when the flue through the roof was dislodged during a storm, not as you have claimed due to a hole in the roof left by a previous contractor. The water leak was fixed long ago but the ceiling in this area requires scraping and repainting. 7. The rear Sunroom area has been stripped of the old and rusted glassless Louvre frames, jarrah stud exposed framing and asbestos cement cladding. The corrugated iron old roof sheeting that had been temporarily fixed over the window openings for six years was also removed. Some second-hand aluminium glazing and a sliding door have been installed. This work was undertaken by the last tenant, Kevin Scott. It requires the filling in of gaps over and alongside with new stud framed walls and to have glass cut and installed in the window framing. The last tenant did a considerable amount of work fitting the framing; however this area too requires finishing to bring it up to a leasable standard. -- 105 of 253 -- [2026] WASC 301 GETHING J Page 106 8. General touch-up painting is required to repair damaged wall paint areas from wear and tear from the five tenancies. We originally had an agreement to repair the damaged house and develop it for either 'home office occupancy' or 'full commercial' or 'medical usage'. You have only recently voiced (but not yet put in writing) that you no longer wish to do this as it will be 'bulldozed when rezoning comes through'. I am not sure if I agree with that but I am certain that rezoning is actually going to take a significant amount of time before it actually occurs (1-2 years?) In the meantime we still need to be able to let the property out at a reasonable rental that covers mortgage repayments and all running costs. I suggest we both do what we can to achieve this. Of the above list are there any items you are able to take responsibility for? Notwithstanding the above, I am certainly open to negotiation on either one of us buying the other out, or us jointly putting the property on the market. Yours faithfully 336 Ms Marr responded by letter dated 16 September 2011 in the following terms:286 Phil re: your bullsh!t claims about my property Again I confirm that you have no right at law to do what you have done re my property. You do not own more of it that me. You agreed to buy half and as yet you have significantly failed to account as required by law. You have no right whatsoever to exclude me from my property (which is ouster by force). Again I reiterate I do not accept my expenditure by you to 'improve' the property. No equity whatsoever resides in the building as you should know; if you were intelligently informed but it seems sadly are not. Again I repeat I am not liable for the allegedly stupid debts you may choose to continue to run up. I did not choose the stupid new granite and stainless steel kitchen; I did not choose to pay for a fake log fire gas heater for your brother or any of the rest of it. I did not chose the stupid earthworks and ill-conceived pathetic retaining and atrocious 'paving' which I say has seriously devalued my property. Stop defaming me and wake up to what it is you actually agreed to. Forget saying your belated payment over many years goes anywhere near my hugely greater initial contribution. A measly $100k over 13 286 PTB E, page 159; Transcript 17.2.26, pages 538 - 539 (Marr). -- 106 of 253 -- [2026] WASC 301 GETHING J Page 107 years does not begin to match my initial investment. Stop trying to sazy to all and sundry that it does. I demand immediate sale and settlement. You will make the property available to whomever I desire or else I will see you in court. I have begged you to mediate, I have written long and loud but you still foolishly think you know best. Think again! Fix this mess now or elect by your ongoing refusal to face facts to pay to fix it by the hideous legal route. Trust me it wont be cheap if you choose that stupid route. Get real, face facts, get legal advice or I will sue you very soon. Goodbye, till you see reason - perhaps if you wish that will be forever. You choice! Your ex friend and partner 337 Ms Marr then gave evidence that Mr Scott responded with a phone call saying that he had moved Reece, another of his sons, into the property. He was occupying the house with other students. The arrangement was that of a 'uni students' share home'. Ms Marr continued to voice her concerns to Mr Scott that Reece was not paying a market rent.287 338 I add that around this time, Ms Marr was receiving communications from the CBA to the effect that the mortgages over Links Road were not being paid (see section 15.2).288 7.15 Reece Scott and others 339 The sixth tenant was Reece Scott (another of Mr Scott's sons) together with a number of other people. These people rented rooms from time to time. This arrangement was in place between November 2011 and June 2014, for some 134 weeks. 340 The Rent Transactions Schedule and the Monthly Rent Spreadsheet show that:289 (a) over the period from 7 November 2011 to 26 June 2014, rent was deposited into Streamline 2 for nine people: 287 Transcript 17.2.26, pages 539 - 543 (Marr). 288 Transcript 18.2.26, pages 626 - 627 (Marr). 289 Exhibits 16 and 17. -- 107 of 253 -- [2026] WASC 301 GETHING J Page 108 Person Amount Reece Scott $13,790.00 Sean Scott $7,885.00 William Reni $4,950.00 Sara C $720.00 Cesar A $4,200.00 Catherine S $960.00 Jamie B $5,800.00 Crystal Y $1,170.00 Kirsten T $500.00 Total $39,975.00 (b) the average rent paid over the 134 weeks was $298.32 per week. 341 Ms Marr asserted that Reece and Sean had a 'contra' deal whereby the rent was reduced in return for them working for Scott & Associates.290 There is no basis for this assertion in the evidence, so I reject it. Ms Marr generally did not accept that Mr Scott's analysis of the amount paid in by the other tenants was accurate.291 However, she did not draw my attention to any evidence to the contrary. 342 The analysis in the Rent Transactions Schedule and the Monthly Rent Spreadsheet in [340] reflects the source documents, and I find in terms of it. 7.16 Boatshed meeting Common ground 343 It is not in issue that on 16 September 2013 there was a meeting at the Boatshed Café in South Perth attended by Ms Marr, Jennifer and Mr Scott. 344 Nor it is in issue that, prior to the meeting, Ms Marr prepared a document which she titled 'Proposed Agenda - topics to be addressed & documented today' (Agenda).292 It reads: Meeting: Phil Scott & Diana Marr re 1 Links Road Mon 16th Sept 2013 Proposed Agenda - topics to be addressed & documented today 290 Transcript 19.2.26, pages 870 - 871 (Marr). 291 Transcript 19.2.26, page 871 (Marr). 292 PTB E, page 166. -- 108 of 253 -- [2026] WASC 301 GETHING J Page 109 1. That the 2 x 50% tenants in common owners 'agree to agree' and to forthwith sort out and to record any agreements between us in writing and as a matter of urgency. 2. Current mortgage balances and current required repayment amounts - as per the Commonwealth Bank notices rec'd this morning (Monday 16th September 20130: a. Loan # 67340 1300 currently $92,769.48 (5.40%) - repayment due = $765/month b. Loan # 67905 8101 currently $23,602.56 (5.44%) - repayment due = $221/month c. Both mortgages total about $116,372 and are repayable at only $986/month and NOT $1415 per month as is being paid against instructions by 50% owner Diana. d. Commonwealth Bank forMs to be completed today and excess monies from rent are to be diverted to the underground power debt accruing interest at 11% per annum. Non-negotiable and this must be addressed immediately. 3. Who really paid for what and when? And how are we going to sort it now NOW? Has Phil (as he has claimed) 'paid over $100 grand' or was there something else going on? 4. Initial inputs into the purchase (Diana $42,000 plus all stamp duties vs Phil $6,500) and how did this actually alter over time? Eg for Phil to 'catch up' he would have had to pay down the head mortgage by $35,000 which never happened because the rent or fair market rent that should have been paid to both owners made or should have made the property cash-flow positive since about 2008 when Phil's family moved in. 5. The justification throughout 2008 and 2009 for the substantially subsidised rental for past tenant Kevin Scott was that he was to 'improve the property to increase its rental value'. Written notice was given in late 2009 that the rent was to be no less than $300 per week. How to address the shortfall (Diana's 50% of the fair rent being $150 per week and NOT $100/week which Diana has NEVER accepted as is recorded). 6. Calculation of the extent of the subsidy provided by Phil Scott to his family by way of his unilateral decision to charge a sub-par rental to those (his) unauthorised tenants despite repeated written & verbal notices from the other 50% property owner (DM). -- 109 of 253 -- [2026] WASC 301 GETHING J Page 110 7. Legal principles re Tenants in Common - right of occupancy of any co-owner, other owner MUST NOT exclude a registered proprietor from (her) own property despite his personal opinion. Need assurance that the current and legally unauthorised tenants will vacate - and the consequences of any failure by them to vacate the property by 23 October 2013 as required by 50% owner Diana - legal redress to her. 8. Arm's length transactions - any rent charged MUST be based on fair market rent; an arbitrary amount of less than 2 thirds of fair rent for a 3 bedroom house in not at all acceptable and ATO penalties may apply. 9. ATO notice to Diana - requirement to lodge tax returns, issues re joint tax problems. 345 Ms Marr gave a copy of this document to Jennifer prior to the meeting and to Mr Scott either before or at the meeting. Ms Marr's evidence 346 Ms Marr gave evidence that at the time this meeting took place she was homeless. She had to leave her prior rental accommodation as the property was being sold. By then she had been corresponding with Mr Scott for some time trying unsuccessfully to get the information she needed to complete her tax return. Following a meeting with her tax accountant, she became concerned about the tax position Mr Scott was taking in relation to Links Road. She had received what she described as a 'red letter' (what I understand was a 'please explain' letter) from the ATO. She called the meeting to try and sort out these issues.293 347 As to what was said:294 MARR, MS: So I am telling him how I feel … and thinking that he would have … empathy and understand. … But I was mistaken. And it actually gave him more power. So the - and he likes to see me upset and get emotional. GETHING J: Okay. So again, I - all I - - - MARR, MS: And we discussed that as well. GETHING J: Sorry. Yes. 293 Transcript 16.2.26, page 391; Transcript 17.2.26, pages 551 - 555 (Marr). 294 Transcript 16.2.26, page 391; Transcript 17.2.26, pages 555 - 561 (Marr). -- 110 of 253 -- [2026] WASC 301 GETHING J Page 111 MARR, MS: We discussed that at the meeting. GETHING J: Yes. Okay. MARR, MS: And I said, this is bullying, this is coercive, you have got to stop. GETHING J: Yes. MARR, MS: And he sort of smiles and everything. So we go - Jennifer says, look, let's bring this to - or, who put in what? And then, we start, Phil items, all his withdrawals from the joint accounts. He reckons that I did all the withdrawals, but I didn't. Then, he goes, car. And I go, yes, with the money from the equalisation loan, I bought a car. It is not a car loan. It's an equalisation loan. We are discussing this, and he is trying to put the spin that it is a car loan. Because if it's a car loan, that is not an equalisation loan, and we have got to change - we - and I am saying, I don't want you to rewrite history, and he is getting quite agitated. And we are talking about, we need the in costs for Diana and for Phil, and then, the settlement statement, and the vandalism of the house. So Phil says it was a rebate of $7,000. And I go, no it wasn't. It was 4,800. This is what Phil is saying, that the original purchase price was 170,000. Yes, it was. Because I took 170,000 to settlement. Phil got 50 per cent on that late change. He agreed then that we did the change in the - when we went to Anne Mulcahy's office…. in November. … That is when that contract was changed… and not before. He agreed. … MARR, MS: He agreed that we were splitting the - all - both the costs of both the settlements. The first one cost 6,600 according to Mr Scott. And he said that he had put in 6,500 plus 300. He says there are two stamp duties. And that is only one of the two pages. Then, we move on. And I am really upset about the underground power. This was done years earlier. And we have still got this invoice running. And I said, well, pay it. We need to pay it off. And then, we are talking about when, he says, that in 1998 it was vacant. It wasn't vacant. It had a tenant. And the tenant was Scott & Associates. And the archive boxes remained there until 2005. Then, Diana - he agrees, Diana - so I moved in, in Easter 99. And I stayed there for 10 months, about 40 weeks. And then, Byron, Byron is the next tenant. -- 111 of 253 -- [2026] WASC 301 GETHING J Page 112 So there is this lacuna. There is this gap in between Diana moving out in January 2000. So nothing happens, but I am the tenant even though I was staying in Bornholm. Then, he rents it out to Byron, but Byron is really already off home house because he is in a high school just a few hundred metres down the road. And he would come there and study. … And then, who was the next tenant? So he says, Dick and the boys and what rent they were paying. So that is my husband, and the boys … are my kids. And he says it was 2003. And he is referencing median rent and REIWA. And I said, yes, the median rent is about 150. 150 would be reasonable. But the back verandah is full of your archive boxes. I am not charging my ex-hubby to store your archive boxes. You are paying. And you know, then, there is Brian Rilston. And he says he was in arrears. And I was - I didn't believe that that was true. It wasn't true. They were - they were great tenants… Then, he is talking about Tim Brown, and Tim Brown did a runner. He was terrible, but the bank statements - anyway, I didn't have them then. And then, he says, Kevin Scott moved in, in August 2008. But we can actually see rent in June or July. And he was there until 2010. No, he wasn't. He was there until 2011. Then, there is Reece and the tenants. So there are three tenants in the three-bedroom house. He says that they are Reece, Sean and Caesar and that the total rent is $350 per week…. … GETHING J: So he - at the meeting, he is saying that there are three tenants, his son and one other man. And they are charging $350. That is what he said at the meeting. MARR, MS: Yes. He says it is 350. And I said, well, that is too low. You got a letter from Joseph Mansour. We - I had been to see a few real estate agents, but I couldn't get access. They wouldn't let me access into the house because of the ouster. And then, he confirms that the third bedroom, the wall was done in 2008, and that Kevin had done that off his own bat because he has a boy and a girl, and there is only - there were only two bedrooms in the - yes. And so he has explained that, and that a new kitchen went in. And I said, why would you put in a new kitchen into a commercial property? I didn't give you my permission. You didn't consult me. I am not interested in that. I am interested in developing it to the plan we agreed on. And then, he said he got a second-hand 130-litre Rheem gas storage hot water system. And I said why would you put - I am -- 112 of 253 -- [2026] WASC 301 GETHING J Page 113 questioning it. I am going, you would put an electric instantaneous or a gas instantaneous into a commercial premises. You don't need hot water for a family, and you know - I said these are - these are inappropriate. And then, he says - he raised a whole bunch of other things, like this burning log, a Rinnai faux log gas heater that sort of glows. And I am going, why would you - that is inconsistent with commercial. And, well, it is not going to be commercial now. The city centre frame is going to be published in 2013. Then, it will go to council, and we won't get the approval until 2014. So we already had the city centre frame. We already knew it was R100. And I am desperately keen to get back into the property before that gets gazetted. I need control of it because otherwise, there is a capital gains tax issue. And I also want to fix up the mess… … … I am saying… my training and my natural… inclination… as a building design professional, an award-winning one, is, I want to put a property to its highest and best use. I want to return - maximise return on investment. I am explaining all of this - - - … MARR, MS: And he is just not interested in that. … MARR, MS: Because it is not about just the money and I got very upset and went outside and had a bit of a cry. And Jen was in there with him, and then I calmed down and came back inside, and we made arrangements. There's a lot more to get through, we haven't even — it's just the tip of the iceberg. So we made an agreement to meet again on the evening of Thursday, following Thursday, so the 19th. And - - - GETHING J: So was there any, aside from the agreement to meet again… was there any other agreement reached then? MARR, MS: Yes, the agreement was that I put in over 42, that we were always going to split the settlement costs. Of course, it was a job. It, basically, it was a — the whole thing was to get it to commercial. Because you get such a better level of — I'm very keen to maximise a building's power and potential, like to benefit its owners. And that's — okay, I was unable to understand what I was dealing with. I didn't understand that it was about something other than profit and money, it's about power and control. -- 113 of 253 -- [2026] WASC 301 GETHING J Page 114 348 Mr Scott's version of what occurred was put to Ms Marr in cross- examination, which she denied.295 Jennifer's evidence 349 Jennifer gave evidence that she went to the meeting to support Ms Marr in her attempts to get back into Links Road. She said that Ms Marr and Mr Scott were at a deadlock. She described herself as the 'moderator'.296 She took notes, which I will come back to at [353] - [354].297 350 Jennifer recalled:298 Well, as per - we were following the items on the agenda. Diana was technically homeless, and looking to get back into the property. I asked Phil directly if he had a lease on the property, and asked to see that lease, and then he said - well, apparently, he said he had a fixed-term lease. When I asked to see the lease, he said it was a verbal lease, and I questioned that, because I thought it was very interesting that you could have a fixed-term lease that was verbal. So I asked him to please provide that next time we met. Okay?---We went through the figures of the property, Diana's initial purchase, her initial deposit of $42,000. We went through Phil's contributions of 6000, and the fact that there was a deed of agreement, because Phil needed to make up the difference because Diana had put in a significantly larger amount of capital. We went through - we broke down the purchase price, 85,000 on Phil's side on a $170,000 property deal that Diana did, the second deal with Phil. We specifically discussed Phil having his sons stay at the property at a very low rent, and I asked Phil when Diana would be able to move in, and his response was, well, Diana could move in towards the end of November or early December of that year, because Sean would have finished his exams, his medical exams. … Okay. So you're saying - so you've told us what Mr Scott said. What else can you recall?---Diana did get a little bit upset, so she left. She went off to have a cigarette, and so I stayed with Phil, and just covered off on the situation. We were sitting there discussing things. We were at a round table, so we were very close proximity. I was taking notes, because we were going through the agenda items, and I confirmed as I wrote things down that this is what Phil agreed to. 295 Transcript 19.2.26, pages 824 - 832 (Marr). 296 Transcript 20.2.26, page 1002 (J Marr). 297 Exhibit 6; PTB E, page 167. 298Transcript 20.2.26, pages 1002 - 1004 (J Marr). -- 114 of 253 -- [2026] WASC 301 GETHING J Page 115 Do you remember anything else about the meeting?---Apart from it getting heated, Diana came back. We were looking to get towards resolution. And it was a - it was the sets of figures we covered off on the vandalism issue. We covered off on the two sets of stamp duty, payable. We covered off on the fact that, as I said, Phil was charging under-market rent for his sons, so - which didn't seem fair, and the fact that Diana had an agreed lease in place to take over the property with her friend Kerry Donovan. They were going to take possession because Phil agreed to vacate the property in late November, early December. And we just covered - I suppose we just covered off on the items on the agenda. They are the ones - they are the key things that I remember. Phil - I remember that Phil was quite amenable at the meeting, and I was quite surprised he had agreed to things. He agreed to what Diana had laid out and was very calm, and happily agreed that his sons would move out. And how did the meeting end?---We were going to have a follow-up meeting, I believe, that week, just to - to, you know, tidy things up. And that was cancelled at short notice on the day by Phil, and we were to meet again. And unfortunately, after that point, Phil was uncontactable. 351 Jennifer also recalled that there was an agreement for Mr Scott to 'catch up by contributing cashflow'.299 And:300 GETHING J: So is there anything else - so really, we are around that. Is there any other, anything else, you can recall about that?---Me? About - yes, Jennifer, about the - so in terms of anything you can recall about the arrangements made for Phil to catch up?---Yes. It was a professional - it was a professional arrangement. Diana and - and Phil met each other, professionally. And there was a deed of agreement that was to be signed to - to govern this particular arrangement because of the - you know, the nature of this agreement. … GETHING J: Okay. Well, okay. Maybe I will ask this open-ended question. Was there any discussion of the deed of agreement at the Boatshed meeting?---That's a very good question. I think so?---Yes. Yes. There was a - there was the discussion because it's the - by Phil agreeing that Diana had definitely put in the lion's share of the finance, that the deed of agreement would govern the nature of the - how they were going to conduct this property. Because it was a business purchase. They - it was, you know - - - 299 Transcript 20.2.26, page 1010 (J Marr). 300 Transcript 20.2.26, pages 1011 - 1012 (J Marr). -- 115 of 253 -- [2026] WASC 301 GETHING J Page 116 So can you recall - so that is, I guess, the - do you recall what Diana said about the deed of agreement and what, if anything, Phil said about the deed of agreement?---Well, Diana was very upset because the deed of agreement wasn't signed by Phil, even though it was agreed to. So Diana said that the deed of agreement was there to protect the conduct of how this arrangement would go. I don't recall Phil saying much about the deed of agreement. The deed of agreement, Diana is - Diana was a property developer at the time, and she had done countless - she had done numbers of deals. Well, I don't - and again, I am not - I am sort of just constraining you to this particular meeting in terms of - - -?---All right. Yes. Yes. So… do I understand what you are saying, that Diana is talking about the deed of agreement?---Yes. And - okay. Yes?---Yes. Because Phil has - Phil has agreed that Diana has already put in the lion's share, so how else was he to make up the difference? 352 Jennifer also recalled that Ms Marr and Mr Scott had different recollections as to what happened in relation to the vandalism claim. She thought that this might have been the point in time at which Ms Marr left the table. 353 Referring to her notes, Jennifer added that Mr Scott accepted:301 (a) that the original purchase price was $170,000, and that each had a 50% share worth $85,000; (b) that Ms Marr put in a $42,000 deposit; (c) stamp duty was $6,600, being for the two sales; (d) he was liable for an amount of $6,500 and another amount of $300; and (e) there was a rebate of $7,000 for the vandalism (though, looking back, Jennifer was not now sure how this was to be brought to account). 354 Jennifer recorded that there was discussion about:302 (a) a request by the council in relation to underground power; 301 Transcript 20.2.26, pages 1007 - 1008 (J Marr). 302 Transcript 20.2.26, pages 1008 - 1010 (J Marr). -- 116 of 253 -- [2026] WASC 301 GETHING J Page 117 (b) withdrawals from the joint account; (c) a 'car'; (d) the various tenancies and amounts said to be outstanding; and (e) some renovations to Links Road, in particular a third bedroom wall and a new kitchen. 355 Jennifer gave evidence that Mr Scott agreed that he and his sons would vacate Links Road by December 2013 so that Ms Marr and her friend, Kerry Donovan, could move into the property. I observe that this agreement is not recorded in Jennifer's notes. In cross- examination, Jennifer added that a second meeting was planned to complete the items which had not been discussed and for Mr Scott to sign an agreement to vacate.303 356 In cross-examination, Jennifer accepted that there was no reference to a deed of agreement in her notes. It was put to her that Mr Scott in fact said that Ms Marr did not put in $42,000. Jennifer disagreed. It was put to her that Mr Scott never said that his boys or his sons were going to vacate the property. Again, Jennifer disagreed.304 Mr Scott's evidence 357 Mr Scott's recollection was:305 At the Boatshed meeting I went to meet with Diana, and she was accompanied by her sister Jennifer, and the agreement was that we would meet, and we would try and talk out and resolve these issues, and perhaps negotiate if there was room there for going forward with one of us buying each other out, or something like that. So we went and met at the Boatshed, and there was only myself and Jennifer, Diana, and they had a well- written agenda, and you saw that presented to the court earlier. 358 Mr Scott recalled receiving a copy of the Agenda, but could not recall whether he received it at or after the meeting. 359 And:306 And can you recall Jennifer Marr taking notes?---I recall Jennifer Marr taking notes. With respect to the meeting, I found that it was very much 303 Transcript 20.2.26, pages 1018 - 1019 (J Marr). 304 Transcript 20.2.26, page 1019 (J Marr). 305 Transcript 24.2.26, pages 1197 - 1198 (Scott). 306 Transcript 24.2.26, pages 1198 - 1199 (Scott). -- 117 of 253 -- [2026] WASC 301 GETHING J Page 118 a one-sided meeting, where I was getting told stuff rather than there being a quiet discussion and an attempt to be a meeting of minds. I would characterise the meeting as it was an attempt to railroad me and get me to agree to these items that are presented in the meeting, such as - there it is. Item 4, Diana's 42,000 plus stamp duty and 6500. The date of this meeting, 13 December - - - Well, at the top it says 16 September 2013?... ---16 December - sorry, 16 September 2013. Now, that's during the period when actually Reece and the boys are present - sorry, not - and Kevin has left. So at this point, I'm trying to explain to them that this is the highest level of rent we've achieved, and we're actually getting a very good rental income out of the presence of Bruce Scott and the others. And it is a continual occupation of the house, and they're all paying the rent without failure. And it's adding up to a significant contribution. It's of the order of $300 a week, as it turned out over the entire rental period. $300 a week average, and that was 50 per cent more than Tim Brown and Kevin Scott, and definitely 300 per cent more than Brian Rilston, basically, and Dick Biesiekierski. I was attempting to explain to Diana that Kevin was a good tenant and had done maintenance repair work, which was beneficial to us. The house had cleaned up a fair bit. And that recent - the students were paying a good rent. We're talking about a house with no glass in the back sunroom wall. I'm not sure Kevin actually said that yesterday, but the glass was never in the sunroom. The framing on the entire western face had been installed by Kevin, just framing and no glass. And the panes of glass that were eventually provided and installed there were done by myself and Mr Dadich in early 2020. So this - and I draw that point, we had a house, although Kevin has cleaned it up - well, in the landscaping department and the installation of new kitchen benchtops and recycled cupboards and laundry, similar. We still have a substandard house. This is not an average house or a median house in the Ardross area. This is a lower quartile house. And the rent that we are getting is the appropriate level of rent for it. … That is my - there's rental discussion there, yes. And a calculation again, Diana, since - has said from the early days that she contributed an initial deposit of 42,000, but that did not happen. I contest that that happened and it's a much lower figure. 360 Mr Scott added that he thought Ms Marr may have raised the issue of her having some tax returns to lodge. He said that at that time he was a little behind in his tax returns. He said that he gave Ms Marr the information she was seeking not long afterwards. -- 118 of 253 -- [2026] WASC 301 GETHING J Page 119 361 As to how the meeting ended:307 The meeting ended up with these items discussed. Basically, the history of the house and the rental history and whatever other items we can see there pretty well got covered. On occasions, Diana became agitated and left to go and have a break or a - a cigarette and - and Jennifer continued those discussions with me on those occasions. One of the things was that Diana had said that she wanted to move into the house at that stage, and I explained we already had tenants and they were paying a good rent there. And Diana - I did explain that she hadn't been making much in the way of contributions and where was the mortgage going to come from if she moved in. There was no answer to that; that wasn't recorded in the agenda, in the handwritten notes. However, also not recorded in the agenda was a later claim that I had agreed that the boys would move out by the end of the year, the academic year. Now, it's straight up, I did not agree to that. Diana and Jennifer wanted me to agree to that. And Diana - sometimes she believes that if she says it enough it gets real. GETHING J: Well, again, I'm not concerned about your opinion. I'm just concerned about what was said and what wasn't?---Okay. So I was - this was more a meeting of being told, 'Move out by the end of the academic year,' and I did not agree to that… ... MARTINO, MS: So what you can recollect about that point, and you've said that you didn't agree for the boys to move out?---That's correct. And was any agreement reached at that meeting?---No, not really, but it was good to discuss it all. 362 Mr Scott maintained this position under cross-examination.308 Findings 363 The agenda prepared by Ms Marr is significant as it records Ms Marr's recollection of the original agreements between her and Mr Scott. What is significant is what it does not record. Ms Marr was not in 2013 asserting that Mr Scott agreed that she would have an equitable interest in Links Road in excess of her 50% legal interest. Nor does it record that Mr Scott entered into a personal loan with her, 307 Transcript 24.2.26, page 1200 (Scott). 308 Transcript 18.6.26, pages 1608 - 1610 (Scott). -- 119 of 253 -- [2026] WASC 301 GETHING J Page 120 parallel to Home Loan 1, by which he would pay for the difference in the initial inputs. 364 There is a large measure of consensus as to the topics discussed at the Boatshed meeting (being the matters I have noted at [353] - [354]). The differences mostly turn on whether Jennifer's note recorded what Ms Marr said or what Mr Scott agreed to. On this issue, I consider that Mr Scott has the more reliable recollection. It is inherently improbable that in this meeting Mr Scott would have agreed to matters (such as the amount of Ms Marr's initial contribution) which have otherwise been in dispute for the whole of the 25 plus years since Links Road was purchased. I find that the matters Jennifer made a note of were matters that were discussed, but not matters that were agreed to by Mr Scott. Rather, each of Ms Marr and Mr Scott was reiterating long held positions on the issues going to their initial contributions. 365 In particular, I do not consider that it is more likely that not that Mr Scott agreed that he would move out at the end of the year. If he had made such an agreement, Jennifer would most certainly have written it down in her notes. The fact that she did not makes it inherently improbable that it was agreed. However, I do find that this is what Ms Marr wanted to happen and expressed this to Mr Scott in firm terms. 366 For completeness sake, I add that no meeting took place the following Thursday. 7.17 2014 Application to the Magistrates Court. 367 Thinking that she would finally be getting exclusive possession, Ms Marr had intended to lease Links Road to a friend, Mr Donovan, and then live in the house with him. Mr Donovan had signed a lease. She had planned to renovate the house to allow it at least be used for a permissible commercial purpose. However, at the end of 2013, Mr Scott told her that he was staying in possession. That was the catalyst for her to commence proceedings in the Magistrates Court seeking exclusive possession of Links Road.309 368 The proceedings in the Magistrates Court were commenced by Ms Marr in early 2014. The defendants were the then tenants. Mr Scott was later added as an interested party. The application was heard on 21 and 22 May 2014 by Magistrate Atkins. The Magistrate 309 Transcript 17.2.26, pages 567 - 570 (Marr). -- 120 of 253 -- [2026] WASC 301 GETHING J Page 121 gave reasons for decision on 6 June 2014, the transcript of which is in evidence, finding that:310 (a) Ms Marr had standing, as a one of two tenants in common, was a lessor for the purposes of the Residential Tenancy Act 1987 (WA) (RTA) and had standing to bring the application; (b) the arrangement between Mr Scott, Reece, Sean and others amounted to a residential tenancy agreement, regulated by the RTA; (c) the tenancy was a periodic one not a fixed term one; (d) the claim by Ms Marr of an illegal purpose (based on tax issues, failure to disclose documentation by Mr Scott and a failure to obtain a full market rental) was not made out; (e) the claim by Ms Marr that the tenants had intentionally or recklessly injured her was not established and was dismissed; (f) the claim by Ms Marr for restitution from the tenants for the costs of alternative accommodation and for storage of household items during what she asserts to be an unlawful exclusion was dismissed; (g) the notice of termination which Ms Marr served was valid; (h) Ms Marr filed her application for repossession a day earlier than permitted, so it fails; (i) however, in the circumstances, she was entitled to have the lease terminated on the ground of undue hardship; (j) the appropriate date for termination would be 14 days from the date of the decision; and (k) the orders made did not purport to have any impact upon the tenancy in common of Ms Marr and Mr Scott. 369 There is no suggestion in the reasons for decision that Mr Scott was denying that Ms Marr was a tenant in common. 310 PTB E, pages 185 - 196. -- 121 of 253 -- [2026] WASC 301 GETHING J Page 122 7.18 Occupation by Ms Marr and Mr Scott 370 It is not in issue that on 20 June 2014, Ms Marr moved back into Links Road, however, so did Mr Scott and Reece. It is sufficient for me to find that this living arrangement was very difficult for Ms Marr. 371 At some point, Mr Matthews came to Links Road to drop off a small television for Ms Marr. Mr Scott was at the house, but not his son. Mr Matthews and Ms Marr tried to get the television working, but couldn't. So he left. He said that there was no drama with Mr Scott on that occasion. He described the state of the house as being 'a bit messy', and that it has a 'really well … lived in look'.311 372 Jennifer also visited Ms Marr at Links Road when she was living there with Mr Scott. She described it as being 'in a very unkempt state' and that the toilet 'was like something out of a public latrine'.312 373 Ms Marr went back to the Magistrates Court seeking exclusive possession of Links Road. Ms Marr recalled this as an application for a misconduct restraining order.313 Mr Scott could not recall the precise nature of the application but said that Magistrate Atkins 'wasn't prepared to hand exclusive access or possession to Diana Marr' and said words to the effect of 'I have already dealt with this.'314 374 This application was heard on 5 September 2014 and was dismissed. The same day, Ms Marr moved out of Links Road, leaving in what Mr Scott described as an agitated state. I accept Mr Scott's evidence that he treated Ms Marr with appropriate courtesy during this period.315 However, I also accept that, from Ms Marr's perspective, her experience was different and that the events leading up to Ms Marr leaving Links Road had a significant impact on her mental health.316 7.19 Occupation by Mr Scott 375 It is not in issue that after 5 September 2014, Mr Scott occupied Links Road. 376 Ms Marr said she was telling Mr Scott that he should be paying 50% of a fair market rent. She gave evidence of being ignored by him. 311 Transcript 20.2.26, page 990 (Matthews). 312 Transcript 20.2.26, page 1014 (J Marr). 313 Transcript 19.2.26, page 833 (Marr). 314 Transcript 24.2.26, page 1201 (Scott). 315 Transcript 19,6.26, pages 1729 - 1739 (Scott). 316 See for example: Transcript 17.2.26, pages 581 - 582 (Marr). -- 122 of 253 -- [2026] WASC 301 GETHING J Page 123 377 Ms Marr had stored a significant quantity of her possessions in the bedroom she was occupying. She removed these possessions in November 2015. 378 During 2017 to 2019, Ms Marr and Mr Matthews were sharing a rental property in Lesmurdie. Mr Matthews was very sick. Ms Marr became his carer for two to three years, which became the primary focus of her attention. 7.20 Tenancy agreement with Mr Pearce and Ms Butler 379 The last tenants in Links Road were Cheyne Pearce and Susan Butler, who resided there with their then infant son. Their tenancy went from 22 February 2020 to 3 June 2023. They became aware that Links Road might be available to rent as Ms Butler worked with Mr Scott's partner. Mr Pearce and Ms Butler signed a written tenancy agreement. Initially it was two year tenancy, which was extended on a month to month basis. At that time, the State was still in a COVID emergency, and they wanted to remain in the house. They vacated the property when they purchased a house. 380 When Mr Pearce and Ms Butler commenced their tenancy, the house was, in Mr Pearce's view, clean, but old:317 MARTINO, MS: Just in terms of the state of the house, Mr Pearce, when you entered the tenancy, what was - what was the general state of the house?---It was clean. It was old. There was some nice things, like it was high - ceilinged, wooden floorboards, big rooms. There was also termite bait in the lounge room for six months because there was termites. It was hot. I didn't think there was any insulation. There was only - there was an aircon that fed the spare room and study and kitchen, so it didn't really do anything for the rest of the house. It was cold in winter because it sat over a decent crawl space. The gardens were pretty overgrown. There was a fence in the backyard that was, like, just shade cloth, so people would walk past and look in, and they could look in. The hot water system had to be replaced once. The paint was bubbling. It was coming off in my son's room because of the leaking bathroom. The oven didn't really work properly. That was eventually replaced. There was an outside toilet that was sort of enclosed in this sun-room. It was rat-infested, periodically, in the walls, in the ceiling, in the backyard, in the shed, but it was - we also made it our home. We painted a wall in the kitchen into a chalkboard and yes, it was - it was a bigger place than where we were in, but it was - it was, it came with the fact that it was a - not a new home. Yes. 317 Transcript 20.2.26, pages 946 - 947 (Pearce). -- 123 of 253 -- [2026] WASC 301 GETHING J Page 124 381 At the start, the rent was $325 per week, and there was a $650 bond. At some point, the rent increased to $400 per week. 382 Mr Pearce made it clear that there was never any deal for him to do work at Links Road for reduced rent. He voluntarily did some work in the garden and inside the house. I would describe the work done as the usual sort of work a tenant would do in a rental property. 383 At some point, Ms Marr became aware that there was a new tenant at Links Road and Mr Pearce became aware that Ms Marr was a co-owner of Links Road. Mr Pearce first met Ms Marr when she came and knocked on his front door. He described feeling intimidated by the interaction, in particular the language used. Ms Marr came to the house on around eight other occasions after that, including to take photos and drop off paperwork. At some point, Mr Pearce also became aware that Ms Marr had lodged a caveat over Links Road. I got the sense from Mr Pearce's evidence that he and Ms Butler were trying to stay out of the evident dispute between Ms Marr and Mr Scott. However, he was required to give evidence at two court hearings relating to their dispute during his tenancy. 384 The Rent Transactions Schedule and the Monthly Rent Spreadsheet show that:318 (a) Mr Pearce and Ms Butler were tenants for 168 weeks between February 2020 and May 2023; (b) between 21 February 2020 and 26 May 2023, payments were made into Streamline 1, totalling $60,658; and (c) their average rent was $361 per week. 385 This amount received was gross, that is, without any deduction of real estate's commission and fees. 386 Ms Marr again asserted that there may be a 'contra deal' with Scott & Associates which she did not know about.319 However, there is no evidence of this. 387 Ms Marr cross-examined Mr Scott to the effect that some of the rent which he received from Ms Butler and Mr Pearce was in cash 318 Exhibits 16 and 17. 319 Transcript 19.2.26, page 872 (Marr). -- 124 of 253 -- [2026] WASC 301 GETHING J Page 125 which he did not account for. He denied this.320 As Ms Marr did not adduce any evidence that what she alleged in fact occurred, I accept Mr Scott's evidence. 388 The analysis in the Rent Transactions Schedule and the Monthly Rent Spreadsheet in [384] reflects the source documents, and I find in terms of it. 7.21 Repayment of Home Loan 2 389 On 10 August 2020, Ms Marr paid an amount of $12,100 into Home Loan 2 which almost reduced the loan balance to zero. 390 In cross-examination, Ms Marr suggested to Mr Scott that they had agreed that the amount would be paid off Home Loan 2 on condition that Links Road would be immediately put to its highest and best use. Mr Scott disagreed, saying that there were no conditions attached.321 Ms Marr did not give evidence in terms of her question. So the only evidence on this issue is Mr Scott's denial. I find in terms of his evidence. 7.22 Commencement of the present action 391 The present action was commenced by Ms Marr on 9 October 2020. The catalyst for doing so was Ms Marr getting another 'red letter' from the tax department requiring her to provide tax returns relating to Links Road. She had for some time being lodging tax returns which left out the matters relating to Links Road, with an explanation that these matters would be determined later. This culminated in a telephone call from someone in the ATO fraud investigation team, asking questions about Links Road. Also, around this time, she had received calls and emails from the CBA hardship line to the effect that a request had been made by the other owner of Links Road to stop paying the mortgage and capitalise the interest. Ms Marr was not able to contact Mr Scott to speak about this. 392 I deal with the sale of Links Road pursuant to an order of the court in Part 8. 7.23 Application to the Magistrates Court 393 Around 2022, Mr Matthews entered into a tenancy agreement with Ms Marr. The intent was that when the fixed term tenancy with 320 Transcript 18.6.26, page 1489 (Scott). 321 Transcript 18.6.26, pages 1594 - 1595 (Scott). -- 125 of 253 -- [2026] WASC 301 GETHING J Page 126 Mr Pearce and Ms Butler was finished, he was going to rent Links Road from Ms Marr. The rent was $450 per week. They had planned to do some work together to get the property up to a commercial standard. This included putting a ramp in at the front and wheelchair access to the toilet at the rear. However, as Mr Pearce and Ms Butler did not move out, and Ms Marr was not able to obtain sole possession from the Magistrates Court, his tenancy did not go ahead. This was the only tenancy agreement he recalled entering into with Ms Marr.322 I accept his evidence. 394 On 22 February 2022, Ms Marr applied to the Magistrates Court for orders under the RTA seeking to recover possession of Links Road. The defendants were Mr Pearce and Ms Butler, with Mr Scott added as a third party. On 1 July 2022 Magistrate Darge dismissed the application on the basis that:323 (a) it was an abuse of the court's process to bring further actions to seek orders already the substance of existing litigation (being the present Supreme Court action); and (b) the Magistrate lacked jurisdiction to make residential tenancy orders or restraining orders in a possession of land action. The Magistrate concluded that '[t]hese proceedings are an attempt to effectively short cut the existing Supreme Court action.' The Magistrate noted that there had been a similar application in 2021324 and that earlier in 2022 Ms Marr had unsuccessfully applied for a restraining order against Mr Scott.325 395 There is no suggestion from the materials in evidence from this application in the Magistrates Court that Mr Scott was denying that Ms Marr was a tenant in common. 8. The sale of Links Road 396 At the time Ms Marr commenced the action on 9 October 2020, Ms Butler and Mr Pearce were in in occupation of the Property. 397 In his counterclaim filed 6 August 2021, Mr Scott sought an order pursuant to Property Law Act 1969 (WA) (PLA) s 126(1) that the Property be sold. PLA s 126(1) provides: 322 ts 988 (Matthews). 323 PTB E, pages 264 - 288. 324 Discussed at PTB E, pages 270 - 271. 325 Discussed at PTB E, page 271. -- 126 of 253 -- [2026] WASC 301 GETHING J Page 127 Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly. 398 On 16 August 2022, Mr Scott made an application for summary judgment on this part of his counterclaim. Master Sanderson granted the order on 8 November 2022. The orders provided for Mr Scott to have the conduct of the sale of Links Road. The net proceeds of the sale were to be paid into court. 399 Links Road was sold and settlement of the sale was completed on 9 June 2023. An amount of $865,639.86 was paid into court. In an affidavit filed on 30 June 2023, Mr Scott certified the following amounts in relation to the sale: SALE PRICE $930,000.00 LESS COMMONWEALTH BANK OF AUSTRALIA LOAN PAYMENT $38,179.98 LESS WBP GROUP (VALUER) FEE $1,100.00 LESS ROSS & GALLOWAY (AGENT) COMMISSION $20,640.00 LESS LEGAL FEES (PA MARTINO) FOR SETTLEMENT $3,442.47 LESS PEXA TRANSFER FEE $123.97 LESS PEXA WITHDRAWAL OF CAVEAT FEE $33.55 LESS LANDGATE DISCHARGE OF MORTGAGE FEE $187.60 LESS LANDGATE WITHDRAWAL OF CAVEAT FEE $187.60 LESS WATER AND SHIRE RATES ADJUSTMENTS $464.97 NET SALE PROCEEDS $865,639.86 -- 127 of 253 -- [2026] WASC 301 GETHING J Page 128 400 When giving evidence, Ms Marr expressed concern at the purchase price accepted by Mr Scott. Her evidence was to the effect that with modest renovations Links Road could have been made suitable to have been let commercially. This would have significantly increased the rental value and thus the sale price.326 However, as Links Road was sold pursuant to a process sanctioned by the court, there is no basis for Ms Marr to challenge the adequacy of the sale price ultimately received by this process. 401 Pursuant to the order of Justice Forrester made 24 October 2023, a sum of $70,000.00 was released to each of Ms Marr and Mr Scott, leaving a balance of $725,639.86 ($865,639.86 - $140,000.00). 402 On 1 August 2025 I made orders to the effect that the parties could each engage a legal services provider to prepare trial bundles on the basis that, once invoices were provided, I would order an amount of money sufficient to pay each invoice would be paid out of the money in court. I granted liberty to the parties to apply as to the final attribution of this cost. Pursuant to this arrangement, on 16 September 2025 I ordered that the sum of $1,531.75 be paid out to Mr Scott in respect of his trial bundles. 403 On 18 February 2026 I ordered that the sum of $809.34 be paid out to Ms Marr in respect of her trial bundles. I also ordered that the sum of $1894.36 be paid out to Mr Scott in respect of his trial bundles. 404 On 18 February 2026 I made similar orders in relation to the costs of transcripts for the trial. I ordered that a sum of $2,760.50 be paid to Ms Marr on account of anticipated transcript expenses. I ordered that a sum of $2,760.50 be paid out to Mr Scott for transcript expenses already incurred. 405 On 5 March 2026 I ordered that a further sum of $1,271.80 be paid out to Ms Marr and that a further sum of $10,749.70 be paid out to Mr Scott. 406 The entitlements of the parties pursuant to orders made by myself for payment out of court on account of what I will refer to as Trial Expenses from September 2025 to March 2026 inclusive are as follows: 326 Transcript 18.2.26, pages 638 - 641 (Marr). -- 128 of 253 -- [2026] WASC 301 GETHING J Page 129 Order Made For Payment Out of Court Marr Scott 16 September 2025 (order 1) $1,531.75 18 February 2026 (order 1) $809.34 18 February 2026 (order 2) $2,760.50 18 February 2026 (order 3) $1,894.36 18 February 2026 (order 4) $2,760.50 5 March 2026 (order 1) $1,271.80 5 March 2026 (order 2) $10,749.70 Total Ordered to be Paid Out $4,841.64 $16,936.31 407 All of the amounts allocated to Mr Scott have been paid out. However, none of the amounts allocated to Mr Marr have been paid out. I will deal with the issue of how these expenses should be brought to account in section 19.4. 408 As at the date of judgment, the balance remaining in the Supreme Court is $708,703.55. 9. What was the initial agreement or agreements between Ms Marr and Mr Scott? 9.1 Legal principles 409 There are two written contracts between the parties, being the Initial Marr Scott Sale Contact and the Final Marr Scott Sale Contract. It is not in issue that each were legally enforceable contracts between the parties. 410 The principles by which a court construes a contract were recently summarised by the Court of Appeal in Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd:327 There was no issue between the parties concerning the applicable principles of contractual construction. There have been many recent decisions in this court outlining the general principles for the construction of commercial instruments … often by reference to Electricity Generation Corporation v Woodside Energy Ltd… and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd…. Nothing useful would be gained by yet another exposition of those 327 Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [2025] WASCA 82 at [114] - [116] (judgment of the court) (Mirabela). Referring to: Electricity Generation Corporation trading as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan and Kiefel JJ); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [46] - [52] (French CJ, Nettle and Gordan JJ). -- 129 of 253 -- [2026] WASC 301 GETHING J Page 130 principles. It suffices to adopt what has been stated in those recent decisions. In summary: 1. The construction of a contractual clause involves an objective determination of the meaning of the words of the contract by reference to text, context (the entire text of the contract) and purpose. 2. The starting point for the proper construction of a contractual clause is the language used in the clause - one must identify the possible meanings that the words chosen by the parties can bear. 3. In determining the meaning of the terms of a commercial contract it is necessary to ask what a reasonable business person would have understood the terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. The instrument must be read as a whole. 4. Absent a contrary intention in the contract, the court approaches the task of giving a commercial contract an interpretation on the assumption that the parties intended to produce a commercial result - one that makes commercial sense. This requires that the construction be consistent with the commercial object of the agreement. Similarly, a commercial contract should be construed so as to avoid it making commercial nonsense or working commercial inconvenience. However, it must be recognised that business common sense is a topic on which reasonable minds may differ. 5. If the words used are unambiguous the court must give effect to them. The court has no power to remake or amend a contract for the purpose of avoiding a result that is considered to be inconvenient or unjust. Finally, a contract should be construed practically so as to give better effect to its commercial purpose. The law seeks to uphold commercial contractual obligations and the expectations that derive from them. The court should not adopt a narrow or pedantic approach to construction, particularly in the case of commercial arrangements… 411 What is in issue is whether there were any further legally enforceable contracts. These contracts are alleged to be wholly oral. The specific issue is whether, in the conversations in which the contract is said to arise, Ms Marr and Mr Scott in fact reached a bilateral agreement and had the necessary intention to immediately create a -- 130 of 253 -- [2026] WASC 301 GETHING J Page 131 legally binding contractual relationship.328 The court's task is to ascertain from the parties' actions and dealings whether they intended to make a concluded bargain.329 This must be determined objectively having regard to all relevant circumstances.330 'Intention' is used to describe 'what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened'.331 That intention is tested objectively by reference to what a reasonable observer would have concluded.332 It is 'not a search for the uncommunicated subjective motives or intentions of the parties'.333 Rather, the subjective intentions and beliefs of the parties are irrelevant.334 Likewise, direct expressions of intent by a party, made after the contract was arrived at, are not admissible.335 412 The relevant circumstances may include prior negotiations, surrounding circumstances and post contractual conduct.336 There is a difference in approach difference between where a contract is wholly in writing and where it is not. This was explained by Campbell JA said in Lym International Pty Ltd v Marcolongo:337 The admissibility of evidence for interpreting a wholly written contract is decided by reference to whether it is able to assist in ascertaining the meaning that the bystander who knows all the relevant surrounding circumstances would understand from the parties using those words. Save in the case of post-contractual events providing retrospectant evidence of a surrounding circumstance that was known to the parties at the time of contracting, the view favoured in this court is that post-contractual conduct cannot assist in that task, and thus is not admissible, or if admitted cannot legitimately be used in that task … By contrast, the task in ascertaining what are the terms of a contract that is not wholly in writing is quite different - the task is finding as a fact 328 Mirabela [114] - [116]; La Mela v Franklexis Pty Ltd [2020] WASCA 83 [83] (judgment of the court) (La Mela). 329 Mirabela [192], [194]; La Mela [84]. 330 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 105 - 106 (Gaudron, McHugh, Hayne & Callinan JJ) (Ermogenous); La Mela [84]. 331 Ermogenous 105 - 106; La Mela [83]; Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101 [25] - [26] (Ipages J with whom Pidgeon J agreed) (Anaconda). 332 Mirabela [194]; La Mela [84]. 333 Ermogenous 105 - 106; La Mela [83]; Anaconda [25] - [26]. 334 Mirabella [192]. 335 Anaconda [25] - [26]. 336 Doherty v Sampey (as Administrator of the Estate of Addison) [2023] WASC 10 [262] (Allanson J) (Doherty); Chou v AWAPAGE SGT 26 Investment Ltd [No 3] [2018] WASC 383 [133] - [135] (Allanson J) (Chou). 337 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 [142] - [143] (Campbell JA, with whom Basten JA agreed at [1] and Sackar J agreed at [272]). -- 131 of 253 -- [2026] WASC 301 GETHING J Page 132 what the parties have agreed. A range of post-contractual conduct could be relevant to ascertaining what the parties have agreed. For example, their conduct in carrying out the contract could itself be objective evidence of what they had agreed, an admission of one of the parties could assist in ascertaining what they have agreed, and business records created to record or report on the contract rather than carry it out could also assist in that task. These observations were quoted with approval by Allanson J in Doherty.338 413 Where the agreement is said to have been made entirely orally, the following observations of Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd instructively summarise the principles:339 Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. … 414 This quote was adopted by Allanson J in Chou.340 His Honour also observed that the party who alleges that the oral agreement was made 'bears the onus of proving, and the court must be satisfied that there is sufficient evidence to support a positive finding that the agreement it alleges was made'.341 And that it 'is trite law that for the court to find the agreement was made, the court "must feel an actual persuasion of its occurrence or existence''.'342 415 Relevant to the present action, Allanson J also observed that:343 338 Doherty [262]. 339 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 [94] (Hammerschlag J) (John Holland); MBPAGE Properties Pty Ltd (AC N 073 623 640) v Barnes [2026] WASC 276 [278] (Seaward J). 340 Chou [133]. 341 Chou [132]. See also: Nguyen v Nguyen Huynh (WA) Pty Ltd [2022] WASC 218 [384] (Hill J). 342 Chou [132], citing Briginshaw (361); Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 712 (Dixon, Evatt & McTiernan JJ). 343 Chou [134] - [135], [138] citing R v Adams [2016] NSWSC 1798 [65] - [66] (other references omitted). -- 132 of 253 -- [2026] WASC 301 GETHING J Page 133 The court can have regard to the commercial context, and to both pre-contractual … and post-contractual conduct … as relevant to determining whether an agreement has come into existence between the parties. Subsequent conduct may also be admissible as evidence where the terms of an oral contract are in issue. As Sakar J said in King v Adams: 'Ascertaining the existence and terms of an oral contract is a question of fact … Consideration of surrounding circumstances and post contractual conduct is permissible when the existence or terms of an oral contract are in issue …' In having regard to conduct after the date of the alleged agreement, the court must of course consider the possibility that a party may regret and seek to walk away from its earlier agreement. … To enable an objective determination of whether there was a mutual intention to contract the terms [as] alleged …, it is necessary to consider the evidence of pre and post contract conduct. 416 The passage quoted from the decision of Hammerschlag J in John Holland was also adopted by Hill J in Lanskey Constructions Pty Ltd v Westrac Pty Ltd.344 Her Honour also observed that:345 ….in determining the terms of an oral agreement in the absence of a contemporaneous record or other corroboration, the court must be alive to the reality that words that are spoken are capable of bearing different and potentially opposed meanings depending on the nuance and emphasis that is given to particular words. A person's appreciation of the significance of these matters must necessarily be considerably diminished if there is a significant delay between the date when the conversation took place and when evidence of the conversation is given… Her Honour's observations as to the impact of delay are of particular relevance to the present case where more than 25 years has elapsed between when the conversations are said to have occurred and when each of Ms Marr and Mr Scott gave evidence. 417 Once the court has determined that the requisite intention is present, it is then necessary to go on to consider whether the terms of the bargain, or at least its essential and critical terms, have been agreed 344 Lanskey Constructions Pty Ltd v Westrac Pty Ltd [2022] WASC 90 [49] (Hill J) (Lanskey). 345 Lanskey [49]. -- 133 of 253 -- [2026] WASC 301 GETHING J Page 134 upon or whether the intended contract is so incomplete or uncertain as to be void.346 9.2 Ms Marr's position 418 In the Claim, Ms Marr refers to the terms of what I have defined as the Initial Marr Scott Sale Contract, which I have set out in section 3.5, including the Conditions. 419 Ms Marr then pleads that as a result of various discussions between her and Mr Scott between about 17 and 24 September 1998 and by virtue of entry into the Initial Marr Scott Sale Contract on the conditions it contained, the parties agreed to enter into a joint relationship or endeavour (Joint Endeavour). The Joint Endeavour was to ('Property' referring to Links Road):347 (i) Jointly acquire the Property on the basis that: a. The plaintiff would acquire the Property solely; b. The plaintiff would then sell half of her interest in the Property to the defendant for $88,500; c. The defendant would contribute an aggregate $6,000 toward the $88,500 that would be payable to the plaintiff; d. In order to obtain funding for remainder of the $88,500 amount payable to the plaintiff, the plaintiff would obtain funding from CBA by way of a $136,000 loan to be secured by mortgage over the Property; e. The defendant would assume liability on the above- mentioned loan in proportion with the value of the purchase price owed to the plaintiff, plus any settlement or other costs, disbursements and/or charges that would be incurred in connection with the O&A and more broadly with the joint acquisition of the Property (as opposed to a sole purchase by the plaintiff only); (ii) Following joint acquisition of the Property, to: a. Re-zone it for exclusive commercial use; 346 Ermogenous 105; Alistair McDougall Nominees Pty Ltd atf McDougall Holdings Trust v Rural Bank (a division of Bendigo and Adelaide Bank Ltd (ACN 068 049 178) [No 2] [2025] WASC 326 [96] (Seaward J); Perpetual Trustee Co Ltd v Nikoloff [2020] WASC 389 [49] (Strk AM); City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249 [291] (Smith J); Anaconda [28]; Thorby v Goldberg (1964) 112 CLR 597, 607 (Menzies J). 347 Claim par 5 (i) - (ii). -- 134 of 253 -- [2026] WASC 301 GETHING J Page 135 b. Lease it to commercial tenants (following re-zoning) at fair market rental; c. Further or alternatively, redevelop it; and d. In the meantime, rent it out to 3rd party residential tenants at fair market rental. 420 The particulars for discussions in which the Joint Endeavour was agreed were:348 The various discussions between the plaintiff and the defendant occurred between around 17 to around early-October 1998 and in person at Scott & Associates' then-office location (situated at Suite 1, 16 Kearns Crescent, Ardross - S&A's Office), at the Property and/or at a café within the vicinity of the Applecross area; or via telephone discussions between the plaintiff and the defendant. 421 Ms Marr pleads that on or around 14 September 1998, she entered into a residential tenancy agreement with Mr Biesiekierski (Biesiekierski Tenancy Agreement). She says that she relied on this agreement to procure finance approval from CBA in respect of the Rancore Marr Sale Contract. She says that the Biesiekierski Tenancy Agreement was in writing and for a period of between 6 and 12 months at a rental rate of $120 per week.349 422 Ms Marr then pleads some matters in relation to the Vandalism, which I have referred to at [219]. Ms Marr pleads that, as a result of the Vandalism, she lost the opportunity of the Biesiekierski Tenancy Agreement.350 423 Ms Marr further pleads that the parties entered into a verbal agreement which she defines as the October Agreement (which definition I will adopt):351 The parties had verbal discussions around 31 October 1998 in respect of the Vandalism. By 11 November 1998, the parties verbally agreed: (i) That the plaintiff would discount the agreed purchase price in the O&A to $85,000 in exchange of the defendant indemnifying the plaintiff for 50% of the costs necessary to repair the Vandalism; and 348 Claim, par 5 (a). 349 Claim, par 2. 350 Claim, par 6. 351 Claim, par 7. -- 135 of 253 -- [2026] WASC 301 GETHING J Page 136 (ii) The entry into a lease agreement between themselves and the defendant's sole proprietor business known as Scott & Associates (S&A); (October Agreement) Particulars a) The October Agreement was partly verbal and partly written. b) To the extent that it is was writing, the October Agreement is referred to in the O&A (as amended by the parties around 10 November 1998). c) To the extent that it was verbal, the October Agreement occurred by way of discussions between the parties at the Property, S&A's Office or via telephone. 424 Ms Marr then pleads that she undertook certain works shortly after settlement of the acquisition of Links Road, which I have quoted at [219], which she defined as 'Works' (which definition I will adopt). 425 Ms Marr then says that the Works and her organisation and supervision of the Works were commonly intended to be part of the Joint Endeavour.352 426 Ms Marr then pleads that around 5 to 11 November 1998, she and Mr Scott made a further agreement which she defines as the Indemnity:353 Notwithstanding the Legal Interests, the parties verbally agreed around 5 to 11 November 1998 that the defendant would indemnify the plaintiff for a 12.4% proportion of the debt that was otherwise jointly owed by the parties to CBA at the time (Indemnity). Particulars a) On or around November 1998, the parties verbally discussed and agreed to reassess and/or revise the Joint Endeavour following contributions toward their acquisition and ownership of the Property, the physical condition of the Property and the discount with which Rancore had provided the plaintiff with. b) The said discussions occurred at the Property, S&A's Office and via telephone. 352 Claim, par 13. 353 Claim, pars 14 and 15. -- 136 of 253 -- [2026] WASC 301 GETHING J Page 137 c) The revised agreement with the plaintiff was to the effect that the parties would: (i) Equally share part of the losses occasioned by the Vandalism, in recognition that the Rancore-Marr Sale Contract would have settled before the said Vandalism, had the defendant supplied documentation to CBA (to be approved as a co-borrower with the plaintiff) in a timely manner; (ii) Recognise a discount of $9,600.00 that Rancore stated around 5 November 1998 that it would give the plaintiff at settlement of the Marr-Rancore Sale Contract (Rancore Discount); Accordingly, the defendant provided the Indemnity in recognition of: (i) the plaintiff's financial contribution to the defendant's acquisition of his legal interest in the Property (through provision of vendor finance); (ii) the plaintiff's financial and non-financial contributions in funding and performing the Works; (iii) The Rancore Discount; and (iv) Financial and non-financial contributions that the Plaintiff made by 12 November 1998 and in relation to re-zoning of the Property (such as planning applications, planned building works and payment of document fees). 427 There is then a plea that by virtue of the matters which I have referred to in [419] to [426] and 'as a matter of law', the plaintiff acquired an aggregate 62.4% beneficial interest in the Property by about 11 November 1998. I deal with this claim in section 9.8 and Part 18. 428 In summary, Ms Marr says that there were three agreements between the parties: (a) the Joint Endeavour; (b) the October Agreement; and (c) the Indemnity. -- 137 of 253 -- [2026] WASC 301 GETHING J Page 138 9.3 Mr Scott's position 429 Mr Scott pleads that the parties entered into the Initial Marr Scott Sale Agreement. In relation to the this, Mr Scott pleads that despite special condition 6 referring to an agreement, there was no signed agreement between the parties.354 430 Mr Scott further pleads that it was an implied term of the Initial Marr Scott Sale Contract that any proposed rezoning would be achieved within a reasonable period following settlement of the Marr-Scott Sale Contract.355 431 Mr Scott denies that the parties entered into what Ms Marr describes as the Joint Endeavour. Rather, he says that at all material times, he and Ms Marr have been co-owners of Links Road.356 432 Mr Scott then pleads that there was a verbal agreement in or about October or November 1998 that:357 (a) Home Loan 1 (to use my definition) would be used: (i) in part by Mr Scott for completing the Marr-Scott Sale Contract; and (ii) in part by Ms Marr for completing the Rancore Marr Sale Contract; and (b) each would be responsible for the Joint CBA Loan to the extent of: (i) $79,000 by Mr Scott to Ms Marr in completion of the Marr-Scott Sale Contract; and (ii) $59,000 by Ms Marr towards completion of the Rancore-Marr Sale Contract and payment of her settlement fees and disbursements. I will refer to this agreement as the Scott Loan Agreement. 354 Defence, par 3.6. 355 Defence, par 3.7. 356 Defence, par 4. 357 Defence, pars 7.2, 7.4(d). -- 138 of 253 -- [2026] WASC 301 GETHING J Page 139 433 Mr Scott denies that Ms Marr incurred the expenses in relation to the Vandalism she pleads or that, if incurred, any money paid was intended to be part of the Joint Endeavour (which he denies exists).358 434 Mr Scott denies that he and Ms Marr entered into the Indemnity and says even if there is an Indemnity, which is denied, the claim is a contract claim and is statute barred pursuant to Limitation Act 2005 (WA) (LA) sections 13, 26 and 27. He further says that:359 (a) at all material times, he and Ms Marr have been co-owners of Links Road; (b) at no time did he agree to indemnify Ms Marr; and (c) the two of them did not obtain the City of Melville's approval to the rezoning of Links Road to 'commercial' within a reasonable time following settlement on 12 November 1998 or at any time the two of them held Links Road as co-owners. 435 Mr Scott accepts that the Vandalism occurred. He says that the cost to repair the damage caused to the house by the Vandalism was in the vicinity of $6,000. He goes on to say that as at 31 October 1998, Ms Marr was in default of the Rancore Marr Sale Contract for delay in completing settlement and penalty interest was applicable. Sometime between 5 November 1998 and 11 November 1998, Rancore and Ms Marr agreed to settle their respective claims or the Vandalism and penalty interest on terms that resulted in Rancore allowing to Ms Marr a discount on the purchase price under the Rancore-Marr Sale Contract of about $4,800 (Rancore Discount (Scott)).360 436 Mr Scott then says that was the common understanding and assumption of he and Ms Marr that the savings to Ms Marr under the Rancore Marr Sale Contract by the Rancore Discount (Scott) was joint money of the two of them and would be used towards the repair of the house at Links Road. Alternatively, he believed and assumed that the savings to Ms Marr by the Rancore Discount (Scott) was joint money of the two of them and would be used towards the repair and improvement of the house at Links Road. These assumptions are said to have been caused or induced by the conduct of Ms Marr in:361 358 Defence, par 8. 359 Defence, par 9. 360 Defence, pars 5.1 - 5.4. 361 Defence, pars 5.5 - 5.7. -- 139 of 253 -- [2026] WASC 301 GETHING J Page 140 (a) keeping Mr Scott informed of her negotiations with Rancore in relation to the Vandalism; (b) representing to Mr Scott that the savings from the Rancore Discount was joint money of the two of them and would be used towards repairing the house, a representation that was made verbally during discussions between the two of them in or about November 1998; and (c) at the settlement of the Marr Scott Sale Contract, not passing to Mr Scott any part or benefit of the Rancore Discount (Scott). 437 Mr Scott denies the October Agreement and reiterates that what is set out at [432].362 438 In summary, Mr Scott's position is that there were two agreements: (a) the Marr Scott Sale Contract, without distinguishing between the versions over time; and (b) the Scott Loan Agreement. Otherwise, the rights and obligations of each party were those which flowed from their ownership of Links Road as tenants in common in equal shares.363 9.4 Approach to the determination of the issues 439 The evidence given at trial by Ms Marr presents a different factual narrative from that in the pleadings. Mr Scott's evidence was largely consistent with his pleaded case. In order to determine the issues which arise on the pleadings, I begin with an analysis of the facts which can be drawn from the evidence and the legal consequences of those findings. I then return to consider whether either party has proven their pleaded case. 440 In their pleadings, neither party really engaged with the issue that the Marr Scott Sale Contract was varied. For the purposes of determining the legally enforceable agreements between the parties, it is necessary for me to do so. Hence, I consider the Initial Marr Scott Sale Contract and the Final Marr Scott Sale Contract separately. 362 Defence, par 6. 363 See generally: Defendant’s Opening Submissions, pars 41 - 50. -- 140 of 253 -- [2026] WASC 301 GETHING J Page 141 9.5 The Initial Marr Scott Sale Contract 441 I have set out the salient terms of the Initial Marr-Scott Sale Contract in section 3.5. On its face, the Initial Marr-Scott Sale Contract created a legally binding contractual relationship on its terms, and I so find. The core terms were: (a) Mr Scott would purchase a 50% interest in Links Road for $88,500, with a $6,000 deposit; (b) settlement was to occur, in practical terms, on confirmation that Links Road had been rezoned to commercial; (c) the parties were to use their best endeavours to expediate the proposed rezoning; (d) Ms Marr could use the $6,000 towards the costs of settlement for the Rancore Marr Sale Contract; and (e) if the parties were unable to achieve rezoning to commercial, the agreement would come to an end and the deposit would be refunded with interest. So there was a legally enforceable contract between Ms Marr and Mr Scott as at 24 September 1998 to this effect. 442 As to whether there was any wider agreement at this time, there is consensus between the evidence of Ms Marr (see for example [48]) and Mr Scott (see for example [57]) that the initial plan was for each of them to take some space in Links Road from which to operate their respective businesses. Hence the need for the rezoning to commercial. 443 The parties were prepared to enter into the Initial Marr Scott Sale Contract on the basis of the plan in [442]. However, the plan was at that stage still too vague for me to find that a reasonable observer would have concluded that the parties intended to create an immediately binding legal relationship. 444 There is also a measure of consensus in the evidence of Ms Marr (see for example [53], [204]) and Mr Scott (see for example [57], [59], [208]) that the plan was for the two of them to equally share the costs of acquiring, holding and developing Links Road. 445 From the terms of the Initial Marr Scott Sale Contract, I find that the parties intended to enter into a separate deed of agreement. The -- 141 of 253 -- [2026] WASC 301 GETHING J Page 142 proposed deed of agreement was to cover at least the refund of the deposit. Common sense would also suggest that the deed of agreement would also formalise the arrangements at [442] and [444]. However, it is common ground that no such deed was ever entered into. 9.6 The Final Marr Scott Sale Contract 446 The Final Marr Scott Sale Contract created a legally binding contractual relationship on its terms, supplanting the Initial Marr Scott Sale Contract. I do not need to make any findings as to the sequence of the various amendments. It is sufficient to find that the Final Marr Scott Sale Contract was in terms of the original which is part of Exhibit 13. The core terms were: (a) Mr Scott was to purchase a 50% interest in Links Road for $85,000; (b) settlement was to occur simultaneously with the Rancore Marr Contract; and (c) the parties were to use their best endeavours to expediate the proposed re-zoning to commercial. So there was a legally enforceable contract between Ms Marr and Mr Scott to this effect. 447 The fact that settlement of the Final Marr Scott Sale Contract to occur simultaneously with the settlement of the Rancore Marr Sale Contract impacts on clause 6 (dealing with the refund and quoted at [67]). In assessment, a reasonable business person looking at the Final Marr Scott Sale Contract would view the amendment of cl (iv) relating to settlement, to also constitute a waiver of clause 6: clause 6 must fall away if there is simultaneous settlement, regardless of whether Links Road has been rezoned to commercial. I am fortified in this view by the fact that this is what occurred. Both contracts were settled simultaneously at a time when zoning to commercial had not then been obtained. 9.7 Were there any other agreements? 448 The question then becomes whether there was a wider agreement or agreements. -- 142 of 253 -- [2026] WASC 301 GETHING J Page 143 Home Loan 1 449 I begin with Home Loan 1. It is not in issue that Home Loan 1 was a standard joint and several loan with both parties being equally liable. 450 In the passages of his evidence which I have quoted at [208] and [209], Mr Scott explains how he arrives at the figures of $79,000 and $59,000 (as pleaded [432]), as follows: (a) the cost of Links Road was $170,000; (b) Home Loan 1 was for $136,000, so the parties had to find another $34,000; (c) he put in the deposit of $6,000; (d) Ms Marr put in the balance of $28,000; (e) his share of the loan is half of the purchase price ($85,000) less his deposit ($6,000), being $79,000; and (f) Ms Marr's share of the loan is half of the purchase price ($85,000) less her contribution ($28,000), being $57,000. In other words, Mr Scott had to pay an additional $11,000 over and above half of Home Loan 1 ($68,000) to reflect his unequal contribution. 451 It is thus apparent that the pleaded position of both parties in relation to Home Loan 1 is substantively the same. Ms Marr pleads that it was agreed that Mr Scott would assume liability on Home Loan 1 'in proportion with the value of the purchase price owed to the plaintiff, plus any settlement or other costs, disbursements and/or charges that would be incurred in connection with the O&A and more broadly with the joint acquisition of the Property (as opposed to a sole purchase by the plaintiff only)' (quoted at [419]). Mr Scott now quantifies the proportionate liability he would assume as an additional $21,775 over and above the otherwise $68,000 equal contribution (see [469]) (though I find that this amount is overstated). 452 However, Ms Marr did not give evidence in terms of her pleaded position. Rather, her evidence (set out at [75])) is that Mr Scott entered into a personal loan with her by which he was to repay the difference -- 143 of 253 -- [2026] WASC 301 GETHING J Page 144 between what he contributed to the purchase price and what Ms Marr contributed to the purchase price. This personal loan is not pleaded. 453 So while it is common ground between the parties that Mr Scott was to address the imbalance in the initial contributions with the effect that, over time, they were going to be equally responsible for the mortgage payments on Home Loan 1, there is a difference in how the imbalance was to be addressed: (a) Ms Marr now says that the additional contributions were to be addressed by Mr Scott repaying the amount as a personal loan to her; whereas (b) Mr Scott says it was to be addressed by him over time by contributing more to the loan repayments. 454 Looking at the conduct of the parties subsequent to settlement, there is no evidence of Mr Scott making any payment directly to Ms Marr at all, certainly nothing is described as a loan repayment. Rather, Mr Scott was making regular payments into Streamline 1 (as was Ms Marr) which were used to make the mortgage repayments on Home Loan 1. 455 As to expenses, both Ms Marr (for example [53]) and Mr Scott (for example [59]) gave evidence that all expenses, including settlement expenses, were to be shared equally. I accept Mr Scott's evidence that (quoted in context at [208]):364 And the arrangement we have between us is that we have purchased this house together, 50 per cent each, and we are going to proceed through and make various contributions to achieve our aim, perhaps if we can, of turning it into commercial premises. But we each will own 50 per cent and be responsible for 50 per cent of the costs. We may pay more here, more here, there. One person organises something, pays it. Another person organises something, pays it. Or money comes in, pays into the account. But it will all be sorted out in the wash to be 50-50 in the end. … So am I right, then, in understanding your evidence to be that the intent was that the expenses would be shared equally, in the wash-up?---Yes, your Honour. So that was the agreement at the time, that there's an unequal contribution to the loan, which will be addressed over time, and the 364 Transcript 23.2.2026, pages 1152 - 1153 (Scott). -- 144 of 253 -- [2026] WASC 301 GETHING J Page 145 expenses will be shared equally, and come out in the wash?---Yes, your Honour. So there was no more sophisticated agreement than that at the time?---No, your Honour. No more sophisticated agreement than that. 456 In summary, I find that the initial agreement between Ms Marr and Mr Scott was: (a) the unequal contributions to the loan were to be addressed over time by Mr Scott by contributing more to the loan repayments; (b) once addressed, the parties would be equally responsible for loan repayments; (c) otherwise, all expenses would be shared equally, with the parties each paying for particular expenses from time to time; and (d) there would be a final accounting of expenses at some point, with the intent that they be equalised. 457 As to what would occur if they received income from the renting Links Road from time to time, it is not in issue that the income in fact received is to be divided equally. This is the ordinary application of co-ownership principles (see [541]). Neither party gave evidence that this issue was discussed in their initial conversations. It is sufficient for me to find that there was no agreement to depart from or adjust that the ordinary application of co-ownership principles as regards income. 458 I come to the same conclusion about how the profit on sale would be shared. There was no agreement to depart from, or adjust, the ordinary application of co-ownership principles which would see the net profit being shared in accordance the proportion of ownership. 459 I consider that the agreement in [456] is the one which I can determine objectively having regard to all relevant circumstances. It is what a reasonable observer would have concluded. There is ample evidence to support a positive finding that an agreement in these terms was made. Moreover, the agreement in [456] reflects the conduct of the parties over the following 25 years. On the other hand, there is insufficient evidence for me to 'feel an actual persuasion' for the existence of any different or more sophisticated agreement. -- 145 of 253 -- [2026] WASC 301 GETHING J Page 146 460 Rather, I find that there was a plan, but not a legally enforceable contract: (a) to rezone Links Road to for commercial use; (b) to undertake renovation works to Links Road to enable it to be used for commercial purposes; and (c) for both Ms Marr and Mr Scott to conduct their businesses from Links Road. The last point is evident from the fact the plans used to support the rezoning application contemplated Ms Marr and Mr Scott conducting their businesses from Links Road. However, the plan was still too vague for me to find that a reasonable observer would have concluded that the parties intended to create an immediately binding legal relationship in terms of the plan. Settlement Expenses 461 As to the settlement expenses, both Ms Marr ([53]) and Mr Scott ([59], [115]) gave evidence that these were to be shared equally. As set out at [186], the total settlement expenses for both properties were $7,703.50 ($7,704 rounded), so $3,852 each ($7,704 x 50%). Vandalism expenses 462 In section 6.2 I found that Ms Marr expended $4,384 in November and December 1998 on repairing the Vandalism damage. 463 Also set out section 6.2, Ms Marr claims a total of $3,000 for her supervision of the repair works, and $600 of her time spent preparing the schedule of costs. As mentioned, I accept Ms Marr's evidence that she spent a considerable amount of her own time and effort in organising the repairs and carrying out some of the work. However, I am not satisfied that there is a legal basis for her to claim an amount in respect of this work. There is no principle allowing a co-owner to make a claim to be compensated for personal exertion in relation to repairs to a co-owned property. Nor am I persuaded that there was a legally enforceable agreement between Ms Marr and Mr Scott pursuant to which he agreed to recompense her for this amount. Rather, the scope of the legally enforceable agreement is as I have set out at [456]. Ms Marr has not proven an entitlement to the $3,600 claimed. -- 146 of 253 -- [2026] WASC 301 GETHING J Page 147 464 I have accepted Ms Marr's evidence that by way of compensation for the Vandalism damage, at settlement of the Rancore Marr Sale Contract she received $9,600 comprising: (a) a rebate off the purchase price of $4,800; and (b) a bank cheque to her in the amount of $4,800. However, she did not account for either amount to Mr Scott. As to the former, his sale price was still $85,000, being half of $170,000, whereas she only paid $165,200 at settlement. As to the latter, there is no record of the $4,800 cheque being deposited into Streamline 1. 465 I add here that Mr Scott has claimed expenses in relation to Vandalism repairs as part of his claim for co-ownership expenses, being for the security system. I will deal with these expenses in Part 16. 466 The net result is that Ms Marr received $9,600 in respect of repairs arising from the Vandalism, has proven that she spent $4,384 and is not entitled to be compensated for her personal exertion. The appropriate way to bring to account the Vandalism expenses is to offset them against the $4,800 received by Ms Marr. The discount on the purchase price needs to be brought to account separately (see [473]). The amount of Mr Scott's initial unequal contribution 467 I turn then to assessing the amount of Mr Scott's unequal contribution. 468 As set out at [189], Ms Marr claims that her initial contribution was $48,979.50. In section 4.5, I have not allowed any expense over and above the costs of settlement (which I have deal with at [461]). The issue I did not deal with in section 4.5 was Ms Marr's claim for $38,100 being 'Loan balance from Brentwood to bring LVR about 80/20'.365 As to this, from the settlement statement in [172], the balance required to complete the Rancore Marr Sale Contract was $164,227. This accords with the bank records.366 Home Loan 1 was $136,000, leaving a balance of $28,227. According to the bank records, this was in fact the amount paid. So this is the amount of equity which I find that Ms Marr in fact contributed from the Brentwood Property. 365 Exhibit 27. 366 PTB E, page 34. -- 147 of 253 -- [2026] WASC 301 GETHING J Page 148 469 In the Defence Closing Submissions, Mr Scott accepts that the amount which Ms Marr contributed from the Brentwood Property needs to be brought to account. He also brings to account the reduction in the purchase price as a result of the Vandalism. His analysis was:367 The difference is an amount of $21,775 ($29,541 - $7,766). 470 However, Mr Scott's analysis conflates two issues. The first is the measure of Mr Scott's initial unequal contribution. The second is the entitlement of each party to claim their initial cash contributions from the proceeds of the sale. 471 Analytically, the first question is answered by asking how Mr Scott paid the $85,000 due to Ms Marr under the Final Marr Scott Sale Contract. This is in essence Mr Scott's pleaded case (see [432]). This had been reduced from $88,500 to take out the costs of settlement. 367 Defence Closing Submissions, Annexure A, page 1. -- 148 of 253 -- [2026] WASC 301 GETHING J Page 149 They agreed to each pay 50% of settlement costs of $3,852 ([461]). This amount should be added by way of a contribution to the costs of settlement. The purchase price is $85,000 as there was no agreement to reduce this amount to reflect any Vandalism discount (though this is still brought to account - see [473]). This can be seen to leave a difference of $13,650: Item Amount Purchase price $85,000 Settlement costs $3,852 Sub total $88,852 Less deposit $6,000 Less 50% of Home Loan 1 $68,000 Less stamp duty paid $1,702 Balance $13,150 472 Thus, I find that the measure of Mr Scott's unequal contribution was $13,150. 473 As to the second question, each party is entitled to claim out of the sale price their initial cash contributions. Ms Marr's contribution was $28,227. Based on the settlement statement in [172], it is apparent that this amount reflects the reduced purchase price of $165,200. Put differently, but to the same effect, had the purchase price not been reduced, Ms Marr would have been required to contribute $33,027 ($28,227 + $4,800) in order for a settlement to occur for a purchase price of $170,000. However, what does need to be deducted is the $1,527 paid to Ms Marr by way of refund ([187]). This leaves $34,014: Item Amount Equity from the Brentwood Property $28,227 Deposit Rancore Marr Sale Contract $2,500 Stamp duty and registration fee $4,814 Sub total $35,541 Less refund $ 1,527 Balance $34,014 474 Mr Scott's initial cash contribution was $7,702.50: Item Amount Deposit Marr Scott Sale Contract $6,000 Stamp duty $1,702 Balance $7,702 -- 149 of 253 -- [2026] WASC 301 GETHING J Page 150 9.8 Common intention constructive trust 475 As mentioned [427], Ms Marr claims that by virtue of the factual matters she identifies and 'as a matter of law', she acquired an aggregate 62.4% beneficial interest in the Property by about 11 November 1998. The factual matters identified are:368 (a) the Marr-Scott Sale Agreement; (b) the Joint Endeavour; (c) her initial contributions; (d) the Indemnity; and (e) the Rancore Discount. 476 There are two potential bases for this claim. The first is that, as at September to November 1998, a constructive trust arose by virtue of the common intention of the parties. The second basis is that there is a remedial resulting or constructive trust. The former creates substantive rights from when it is made; the latter is an equitable remedy which comes into existence when a court makes a declaration to that effect.369 I deal the first basis at this point, and return to the second in Part 18. 477 To establish a common intention constructive trust, two matters must be established: first, the existence of a common intention that the relevant parties should have a beneficial interest; and second, that the claimant acted to his or her detriment on the basis of that common intention. The common intention must be actual, and cannot be imputed by operation of law.370 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 issue.371 478 On the evidence which I have set out in Parts 3 to 5, I am not satisfied that Ms Marr and Mr Scott in fact agreed that Ms Marr would have a beneficial interest in excess of her 50% interest as an owner common in equal shares. Ms Marr's evidence that there was an agreement in these terms was in the context of the draft deed which she said Mr Dispain drafted and provided to the parties. However, this 368 Claim, par 16. 369 Trajkoski v State of Western Australia [2017] WASC 273 [28] (Le Miere J) (Trajkoski). 370 Coster v Coster [2024] NSWSC 1104 [156] (Hmelnitsky J). 371 Trajkoski [27]; Astill v State of Western Australia [2020] WASC 119 [40] (Hill J). -- 150 of 253 -- [2026] WASC 301 GETHING J Page 151 deed was never signed. Nor is there any other evidence that Mr Scott agreed to its terms. And Mr Dispain did not give evidence to this effect (see also [95]). Nor did Ms Marr mention this in her agenda for the Boatshed meeting ([363]) or in her letter of 2010 or 2011 ([334]). Ms Marr has not established the existence of a constructive trust on this basis. 9.9 Home Loan 2 479 What occurred when Home Loan 2 was entered into is not in issue ([257]). 480 Ms Marr characterised Home Loan 2 as the 'equalisation loan'. Its purpose was 'equalisation' ([258]). She wanted to 'cut a deal' to equalise contribution to the joint endeavour ([263]). 481 Mr Scott's evidence was that with the car transaction of $17,900 'we have gone past equal' ([264]). 482 It is common ground that the $36,000 had to be paid off by the parties jointly. In this way, Mr Scott is paying off money part of which went to Ms Marr personally (and for which she does not need to account in the final analysis). The proper characterisation of what occurred is that the balance of the $18,100 paid into Streamline 1 is that it was a further joint contribution to Links Road. 483 I find that effect of what occurred in relation to Home Loan 2 was that the initial agreement that the unequal contributions to the loan were to be addressed over time by Mr Scott had been met. I find that this was what the parties agreed; in Ms Marr's words, a deal was cut and Mr Scott equalised. Ms Marr received $17,900 out of the funds of the joint endeavour and, in effect, agreed not to pursue Mr Scott further for the initial unequal contribution. This means that, in the final accounting, Mr Scott's unequal contribution of $13,150 does not have to be dealt with. 484 It follows that I don't accept the argument made by Ms Marr in closing submissions that Mr Scott has not caught up on the shortfall of $11,000 from his initial contribution to the purchase price.372 However, in the same submissions Ms Marr goes on to say that Home Loan 2 'was structured to equalise the parties' contributions'. This is what I have found. 372 Plaintiff’s Closing Submissions, Schedule. -- 151 of 253 -- [2026] WASC 301 GETHING J Page 152 485 I add that, if the initial agreement had been that Mr Scott would repay the unequal contribution to Ms Marr by way of a personal loan, the effect of the Home Loan 2 transaction would have been to have discharged this liability. 486 The effect on the mortgage payments in the final analysis is that the expenses comprising payments of interest and capital are to be shared equally in accordance with the agreement in [456]. 487 Ms Marr claims an amount of $4,549.60, being 62.4% of the $12,100 balance of Home Loan 2 paid into Streamline 1.373 The basis of this claim is not apparent. In my assessment, this amount was a joint contribution to what I later describe as the common business enterprise. Ms Marr accepts this in her closing submissions, describing it as a 'joint float'. 9.10 Pleaded agreements 488 Based on my conclusions in this Part, the agreement which I have found proven is substantially in accordance with the pleaded Joint Endeavour ([419]), though I have found that the matters post settlement were a plan rather that a contract (and, as I will explain in Part 17, a plan that gave rise to a fiduciary relationship). I accept that the relationship between the parties was purely commercial. Ms Marr has not persuaded me that there was a contract in terms of the October Agreement. 489 As to the Indemnity, Ms Marr did not give evidence in terms of what is pleaded as at [426]. So she has not proven it on the balance of probabilities. More specifically, she has not proven that there was an agreement to the effect that she was entitled to an aggregate 62.4% beneficial interest in Links Road. 490 On the other hand, Mr Scott has proven the Scott Loan Agreement on the balance of probabilities, though at figures reflecting the evidence at trial. The agreement set out at [456] is consistent with his position that the rights and obligations of the parties were those which flowed from their ownership of Links Road as tenants in common in equal shares. 491 The net effect is that there is no agreement which modifies the usual principles which apply to an accounting of initial contributions, 373 Plaintiff’s Closing Submissions, Schedule. -- 152 of 253 -- [2026] WASC 301 GETHING J Page 153 income, expenditure and distribution of sale proceed between co- owners of a property. 10. What are the legal principles relating to co-ownership of land? 10.1 The partition power 492 I have quoted PLA s 126(1) at [397]. 493 The power to distribute the proceeds of sale in PLA s 126(1) is a statutory discretion.374 That statutory discretion is to be exercised on the same basis as the statutory discretion relating to the power to sell, that is, it must be exercised judicially. It must be exercised having regard to the objects of the PLA, specifically those evident in PLA s 126. It must not be exercised arbitrarily, capriciously or so as to frustrate the legislative intent.375 494 The common law and equitable principles relating to common ownership of land provide an appropriate basis to exercise a statutory power of sale and distribution of proceeds.376 It is to those principles I now turn. 495 Before doing so, it is instructive to set out the nature of the interest of co-owners. This is summarised in the judgment of Brennan J in Nullagine Investments Pty Ltd v Western Australian Club Inc:377 The share or interest which a tenant in common has in land is an 'undivided' share, that is to say, 'a distinct share in property which has not yet been divided among the co-tenants'… A division of the property is repugnant to the nature of a tenancy in common… for it is an essential characteristic of a tenancy in common that each of the tenants has the right to occupy the whole of the property in common with the others. Like joint tenants, tenants in common have a unity of possession; unlike joint tenants, they need not have a unity of interest, nor a unity of title, nor need there be a unity in the time when the interests of the co-owners vest. Each tenant in common has a separate and individual title to the property, limited according to the estate or term granted to or acquired by the tenant…Thus one tenant in common may be seised of an estate in fee simple, another seised of an estate for life, while a third may be a tenant for a term of years, each of their 374 MBPAGE Properties [269] (Seaward J); Warren v Lawton [No 3] [2016] WASC 285 [213] - [214] (Le Miere J); Forgeard v Shanahan (1994) 35 NSWLR 206, 219 (Mahoney JA agreed) (Forgeard). 375 See generally: Meagher as trustee in Bankruptcy of Stein v Stein [2025] WASC 235 [38] (Forrester J); Gray v Gray [2023] WASC 70 [37] - [38] (Strk J); Bombara v Bombara [2010] WASC 314 [79] - [81] (Allanson J). 376 Forgeard 219 - 220 (Mahoney JA). 377 Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635, 643 - 645 (Brennan J) (references omitted). -- 153 of 253 -- [2026] WASC 301 GETHING J Page 154 interests being separately acquired at different times. There is no right of survivorship among tenants in common… And thus, at common law, a tenant in common who wished to sell his interest in land was constrained to sell subject to the right of any co-tenant to remain in possession of the whole of the land… The shares of tenants in common are not carved out of, or engrafted onto, some notional tenure of an estate in fee simple in the land amenable to sale by, or on the application of, one tenant. Nor are tenants in common equitable owners of land capable of compelling a sale of the legal title by a bare legal owner. The rights of ownership are exhausted by the shares of two tenants in common, each seised of and holding on his own behalf an estate in fee simple in a one half share in a parcel of land… If tenants in common concur in a sale of a parcel of land to a third party, each must convey his own share to the purchaser who takes a single estate in fee simple in the whole of the land… Or one tenant in common may take a conveyance of the shares of the other co-tenants and acquire sole ownership of the land. But, if tenants in common do not concur in one or other of these courses, the only way in which one of them can secure a sale of the land is by applying for an order for sale under statute — in Western Australia under [Property Law Act 1969 (WA)]… s 126(1).. 10.2 Forgeard v Shanahan 496 The law in relation to the rights of co-owners was comprehensively summarised by Meagher JA (with whom Mahoney JA agreed) in Forgeard:378 1. Since both joint tenants and tenants in common have joint possession of the land in which they have the estate, it was a settled rule of law that the possession of any one of them was the possession of the other of them, so as (for example) to prevent the statutes of limitation from affecting them; nor did the bare receipt of all the rents and profits by one operate as an ouster of the other… 2. It follows that, where one co-owner is in occupation and the other not, but there has been no actual ouster or exclusion by the former of the latter, the law treats the latter simply as someone who has chosen not to exercise his legal right to occupy the land. 3. It also follows that a co-owner not in occupation was normally virtually without remedy. He could not sue in trespass unless there was an ouster… In the case of personalty, he could not bring trover, absent ouster…, and even the secret removal of chattels by one co-owner for the purpose of selling them and 378 Forgeard 221 - 222 (Meagher JA with whom Mahoney JA relevantly agreed). -- 154 of 253 -- [2026] WASC 301 GETHING J Page 155 applying them to his own use, did not amount to a conversion or confer any right on a co-tenant to sue in trover… A co-owner out of occupation could not even recover his share of rents and profits if the co-owner in occupation appropriated them to himself: no action of account lay either at law or in equity… 4. Apart from statute, a co-owner out of occupation had remedies at law in two situations, and no more. If he had been ousted, he could bring ejectment and mesne profits… If, on the other hand, his co-owner were in occupation by agreement that co-owner became an agent or bailiff and rendered himself liable in a common law action of account. In either case (that is, of ouster or occupation by agreement) he would be liable for rents actually received and possibly also for an occupation fee. 5. Apart from statute, in equity the plight of a co-owner not in occupation was little better. There did not seem to be any action which would render a co-owner in occupation liable to refund any rents received, much less liable for an occupation fee… 6. In 1705 things improved a bit with a Statute of Anne. That statute is properly cited as 4 & 5 Anne c 3 s 27, although — curiously — often referred to as 4 Anne c 16 s 27. In so far as it is here relevant it provides: And… from and after the said first day of Trinity term, … shall and may be brought…by one joynt tenant, and tenant in common, his executors and administrators, against the other, as bailiff for receiving more than comes to his just share or proportion, and against the executor and administrator of such joynt tenant, or tenant in common (sic)…' Thereafter, as far as rents actually received were concerned, a non-occupying co-owner had a statutory right of action both at law and in equity, which caused the courts no problem subject to occasional disputation about what constituted an accountable 'rent'…: 7. In New South Wales the Statute of Anne although formerly available, as repealed by the Imperial Acts Application Act 1969, a piece of legislation recommended by a Law Reform Commission. It is a neat illustration of the havoc which can be wrought by high-minded but ignorant people, putting litigants in New South Wales back into the position they would have been in before 1705 in England. 8. So much for rents actually received. Turning to the liability of a co-owner in occupation to pay an occupation fee, the position at law is fairly clear. He was not liable unless he excluded his co- -- 155 of 253 -- [2026] WASC 301 GETHING J Page 156 owner, in which case he rendered himself liable in ejectment and for mesne profits, or if he constituted himself a bailiff, in which event he would be liable in an action of account, like any other bailiff… Indeed, the whole bias of the law against making a co- owner in occupation liable to account is precisely based on the rationale that if such a liability were to exist a co-owner could, by abstaining from entering into occupation, turn his co-owner into an involuntary bailiff. As far as equity is concerned, an occupation fee will be exacted in at least two circumstances: first, in a partition suit (or related litigation): if there has been an exclusion, the tenant in occupation will be charged with an occupation fee…; this is an example of equity following the law; and secondly, if the owner in occupation claims an allowance in respect of improvements effected by him, equity will permit such an allowance only on terms that he is accountable for an occupation fee — this is an example of he who comes to equity having to do equity… 9. In Halsbury's Laws of England, 1st ed, vol 21, par 1594, it is stated: 'Where one party has been in exclusive occupation, the court, if desired, will order that he shall be charged an occupation rent'. Three cases are cited as authority for the proposition, but none of them really supports a proposition so wide. There is, of course, ample authority that an occupying party may be charged with an occupation rent if he has ousted the other party or if he is seeking an allowance for improvements; but there is no authority which goes beyond that. On the other hand, there is much authority against the proposition… Indeed, if the law were as Halsbury stated, the rule of public policy referred to in par 8 above would be infringed. 10. If a co-owner in occupation effects improvements on the co- owned property he may claim an allowance for any improvements in value effected by him. Such an allowance may be claimed in an action for partition. The allowance is not a reimbursement of the amount expended, but an allowance in respect of the amount by which the value of the property has been increased, not exceeding the amount expended, the 'value' to be ascertained at the commencement of the action… Thus, in summary, a tenant who effects repairs, is entitled to an allowance for the lesser of the value of the enhancement of the property and the cost of effecting the repairs. 11. There is authority that no allowance for improvements will be allowed in favour of the occupying owner unless the non- occupying owner seeks to charge him with an occupation fee, so that the two rights are truly mutual: one cannot claim one without suffering the other…; but it is not difficult to point to -- 156 of 253 -- [2026] WASC 301 GETHING J Page 157 cases where improvements have been allowed although no occupation fee was charged…. 12. A variation on these themes is supplied by the Federal Court of Australia's decision in Squire v Rogers. This case decides that where the co-owner in occupation has been in receipt of rents and profits from the property and used them to finance improvements, if his other co-owner seeks an allowance equal to a proportion of the rent and profits he must make the occupying co-owner an allowance in respect of all moneys spent, not simply so much of them as results in an advancement of the value of the land. 13. What is meant by [improvements] is something more than mere repairs and maintenance, for which no allowance can be made… 14. If the non-occupying co-owner seeks an allowance for rents and profits not accounted for, or semble for an occupation fee, there is authority for the proposition that such an allowance is limited by the extent of the occupying co-owner's claim for improvements… Mr Harris, for the appellant, is, I think, correct in saying that there is nothing in authority to justify this limitation. It is not justified by the only authority Griffith CJ cites for it, Teasdale v Sanderson. It is not part of the ratio of Brickwood v Young. 15. All the above principles are applied in partition actions, and cannot be relied on elsewhere…except in administration actions… and in other cases where there is a fund in court, for example, because of a resumption: Brickwood v Young. They should also be applied, as Mr Harris argued, in cases where the Court decrees sale under s 66G of the Conveyancing Act 1919. Sale and partition are true alternatives, and should, mutatis mutandis, be governed by the same principles. 16. Apart from questions of improvements and occupation fees, which arise from the relationship of co-owners, it will also often happen that co-owners are joint debtors (for example, on a mortgage, or because rates are levied on the property). If one co- owner pays such a debt in full he is entitled to require the other co-owner to contribute a rateable amount; at least that is the prima facie position. In this regard the parties' rights arise from the equitable doctrine of contribution, not from the law of property… that is, they would apply in the case of all joint debts even if the debtors owned no property. 497 The facts of Forgeard illustrate the application of these principles. The appellant, Mr Forgeard, and the respondent, Ms Shanahan, became registered proprietors as joint tenants of a property in suburban Sydney. -- 157 of 253 -- [2026] WASC 301 GETHING J Page 158 The property was financed $6,100 from the parties' joint savings and $30,000 by way of loan secured by mortgage over the property. The relationship broke down and Mr Forgeard left in October 1981, leaving Ms Shanahan in occupation of the property. The trial judge could not find that Mr Forgeard was relevantly excluded from the property. The plaintiff sought an order for the sale of the property under Conveyancing Act 1919 (NSW) s 66G (the NSW equivalent to PLA s 126(1)). 498 The real issue in dispute in the appeal was how the proceeds of the sale of the property should be divided between the parties. It had been agreed that: (a) between October 1981 and November 1990 Ms Shanahan made payments totalling $45,906 in respect of mortgage repayments ($36,100), water rates ($3,440), council rates ($4,300), insurance ($1,542) and pest control ($524); (b) if the property had been leased between those dates the rent which could have been derived would have been $68,290; (c) in October 1981 the market value of the property was $187,500; and (d) in October 1981, the amount required to discharge the mortgage was $12,338. Further, the trial judge found that Mr Forgeard had paid off the mortgage to the extent of $3,159. 499 In the application for sale, Mr Forgeard sought to make Ms Shanahan accountable for an occupation fee and Ms Shanahan sought an allowance in her favour for the expenditure incurred by her. Meagher JA agreed with the trial judge's assessment in relation to expenses:379 His Honour, in effect, allowed the defendant a sum representing one- half of the first three amounts. I do not see how there can be any quarrel with that. They were payments made by one of two debtors of a debt jointly owed by them both. He also made a deduction, as he should, of one-half of the mortgage payments of $3,159 made by the plaintiff. He made no direct allowance for either the insurance or the pest control; and, again, I do not see why he should. They cannot be classified either as payments for improvements or payments of debts jointly owing. At 379 Forgeard 225. -- 158 of 253 -- [2026] WASC 301 GETHING J Page 159 most they are payments towards the maintenance of the property, and as such no allowance should be made in respect of them. 500 In relation to the claim for occupation fees, pursuant to points 8 and 9, Meagher J held that no such allowance should be made except in reply to the other party's claim for improvements.380 The trial judge, Rolfe J, viewed the claim for mortgage payments as, in effect, a claim for improvements, and required Ms Shanahan to account for rents and profits. Meagher JA disagreed. Specifically:381 In the case where one party is claiming an allowance for improvements and the other is seeking to charge an occupation fee, both claims can arise in partition actions (and related actions), and only in such actions. Each claim is a potential incident of a partition action. In this context, 'no rent if no improvements' makes good sense. The discharging of joint debts stands in a different position. An adjustment occasioned by such a discharge is not necessarily made in a partition action: it could be made in an action for contribution, which could be brought quite independently of a partition action (or its equivalent). In the present case, for example, the defendant could have brought an action for contribution before or after the s 66G case. In these circumstances to equate a claim for contribution with a claim for an allowance for improvements does not seem to me to carry much conviction. This finding was at odds with the decision of the trial judge, but as there was no cross-appeal, the first instance decision stood. Meagher JA also reiterated the proposition that no claim for an occupation fee should be allowed in excess of the value of the improvements.382 501 Mahoney JA agreed with the application for the law by Meagher JA. His Honour was of the view that the common law and equitable principles relating to common ownership of land provide an appropriate basis to exercise a statutory power of sale and distribution of proceeds:383 The real issue in this proceeding has been how the proceeds of the sale of the property should be divided between them. Rolfe J examined the principles which had been involved in partition cases when the power to order partition and the like derived essentially from the equitable jurisdiction of the Court. It is those principles which have been the subject of examination in this appeal. 380 Forgeard 225. 381 Forgeard 225. 382 Forgeard 226. 383 Forgeard 219 - 220 (Mahoney JA). -- 159 of 253 -- [2026] WASC 301 GETHING J Page 160 Those principles do not, as such, apply in the exercise of the power to order statutory sale under s 66G. In this the Court exercises a statutory power and, considered formally, the way in which the statutory discretion is to be exercised must be derived, in the ordinary process of statutory interpretation, from the terms of the statute. However, it is proper that, in formulating the principles to be applied in the exercise of the statutory power, the court should have regard to what has been decided in the analogous partition and similar cases. This is what ordinarily courts do. It is proper that it be done. Each new area of the law must be dealt with in its own way and, no doubt, each judge must, as counsel's argument inferred, form his own conclusions. But the law has developed by, inter alia, the use of analogies. The judicial process has, as Holmes, Cardozo and others have observed, seen this as a legitimate technique for dealing with new problems. It is a technique which contributes to the certainty of the law: lawyers may expect that the principles developed in one case will be applied to solve the problem posed by an analogous case. It is proper that, with proper exceptions, that be done in this case. The principles which have been evolved in this area of the law derive, in the first instance, from the incidents which the law long ago attached to common ownership of land. I see no reason to depart from them. To do so would be merely to substitute one set of judgments as to what is just for another, without there being a compelling reason for the one or the other. The principles, for example, to be applied to or to be derived from the right to occupy commonly owned land are, I think, of this nature. 502 As to those principles:384 As with many principles, minds may differ as to the result of the application of them to particular fact situations. But, in my opinion, there is in most of the decisions a commonsense accommodation of competing claims. Thus, one common owner occupying the land may have an interest in effecting improvements which will make his occupation more comfortable; in a sense, it may be unjust if, having effected them, he receives no compensation for the increase in the land value resulting from them. On the other hand, the non-occupying owner may legitimately wish not being required to pay for, or for a share of, improvements which he does not desire to have effected. But if the benefit of the improvements be realised by sale of the land, there is justice in affording to the co-owner who has effected the improvements some benefit from them when the proceeds of disposal are divided. And, on one view, there is justice in setting off against such an allowance for improvements a notional occupation fee payable by the one who during his occupation of the land has effected them. 384 Forgeard 220. -- 160 of 253 -- [2026] WASC 301 GETHING J Page 161 503 For present purposes, it is not necessary to consider the dissenting judgment of Kirby J. 10.3 Biviano v Natoli 504 The principles set out by Meagher JA in Forgeard in relation to occupation fees were quoted with approval by Beazley JA (with whom Powell and Stein JJA agreed) in Biviano v Natoli.385 Her Honour stated the general principle in the following terms:386 A tenant in common is entitled to exercise acts of ownership over the whole of the common property without liability to be called upon to account in respect thereof: Luke v Luke (1936) 36 SR (NSW) 310; 53 WN (NSW) 101. This general rule will be displaced, however, where a tenant in common has wrongfully excluded a co-tenant from exercising the right to occupation. At common law a co-tenant so excluded could sue for ejectment and for mesne profits: Goodtitle v Tombs (1770) 3 Wils KB 118; 95 ER 965, and could also bring a partition suit to charge the occupying co-tenant with an occupation rent: Pascoe v Swan (1859) 27 Beav 508; 54 ER 201. Long Innes CJ in Equity in Luke v Luke said (at 314; 102): '… by excluding [a] co-owner from the exercise of his legal rights the tenant in common who so excluded his co-owner had committed a legal wrong.' 505 As to what constitutes an ouster:387 The true nature of ouster is that it constitutes a trespass by one co-tenant of another co-tenant's rights in respect of the property. 'An express denial of the title and right to possession of fellow tenants, brought home to the latter openly and unequivocally' would clearly amount to an ouster: see 20 Am Jur 2d, Cotenancy and Joint Ownership, par 51, citing Williams v Sinclair Refining Co Inc 39 NM 388; 47 P 2d 910 (1935) and Howell v Bradford 570 So 2d 643 (1990): see also Doe v Bird (1809) 11 East 49; 103 ER 922. On the other hand, a temporary disturbance to an access way to the property would not: see, eg, Ferguson v Miller [1978] 1 NZLR 819. 506 On the facts, Beazley JA held that the removal of a person otherwise entitled to occupy property, or the continuance of that removal, pursuant to an apprehended violence order under Pt 15A of the Crimes Act 1900 (NSW) did not itself constitute a legal wrong, and the actions in obtaining the order do not constitute an ouster.388 However, the appellant did deny the respondent's interest in the 385 Biviano v Natoli (1998) 43 NSWLR 695, 700 (Beazley JA, with whom Powell and Stein JJA agreed) (Biviano). 386 Biviano 700. 387 Biviano 700 - 701. 388 Biviano 703. -- 161 of 253 -- [2026] WASC 301 GETHING J Page 162 property during the proceedings. Her Honour held that this amounted to an express denial of his rights as co-tenant and constituted an ouster. The appellant was thus liable to pay an occupation fee from the date of the filing of the defence.389 As to the way in which the occupation fee was to be calculated, her Honour stated:390 In my opinion, the starting point for the determination of the question is first, the principle that a co-tenant is entitled to the use and occupation of the whole of the premises and secondly, that the entitlement of the ousted tenant is to an occupation fee. The occupation fee is in fact mesne profits arising from the occupying co-tenant's wrongful ouster. Mesne profits are not rent: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 39. They are calculated on the open market value of the premises: see Rock Bottom B Fashion Market Pty Ltd (In Liq) v HR & CE Griffiths Pty Ltd (Court of Appeal, Queensland, 6 March 1998, unreported) at 10-12, per Dowsett J. 'The measure … is a reasonable sum in the nature of rent': see Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 at 252, per Somervell LJ. This is often proved in fact by relying on the amount of rental payable under an existing lease: see Atkin's Encyclopaedia of Court Forms in Civil Proceedings, 2nd ed, vol 24, par 22; Halsbury's Laws of England, 4th ed, vol 27, par 255; Rock Bottom Fashion Market Pty Ltd (In Liq) v HR & CE Griffiths Pty Ltd. Notwithstanding that a co-tenant has a right to occupy the whole property, I do not consider that it is appropriate to merely take the rental value for the whole of the property. It would be inequitable to do so because an actual letting of the property where there is already a co- tenant in occupation would not attract a market rental based on full occupation. It may not even attract 50 per cent of the market rental. The onus of establishing the quantum of the occupation fee falls upon the party claiming it — namely, the ousted co-tenant. The respondent proved the rental value of the property based on there being no other person already in occupation. He did not prove the rental value on the basis that the appellant and her daughter also occupied the property, as they were entitled to do. Notwithstanding that, I am of the opinion that as the appellant did not seek to assert any lesser figure than 50 per cent, that is the appropriate percentage to apply. 10.4 Silvester v Sands 507 The principles identified by Meagher JA in Forgeard have been applied in five first instance decisions in this court. It is instructive to review each of these decisions in detail in order to determine the application of the principles to the facts presently in dispute. 389 Biviano 703. 390 Biviano 704. -- 162 of 253 -- [2026] WASC 301 GETHING J Page 163 508 The first decision was that of E M Heenan J in Silvester v Sands.391 In that case the defendant, Ms Sands, was the sole registered proprietor of a property in Wembley, and became so registered on 3 December 1986. The plaintiff, Mr Silvester, alleged that he and Ms Sands were in a de facto relationship from about 1982 to 1993. It was not in issue that Ms Sands contributed about half the purchase price and that the balance was financed by a loan in the names of both parties and Ms Sands' mother. Mr Silvester further alleged that there was a verbal agreement that the property should be registered in Ms Sands' name, but that he would acquire an equal interest in the property. His case was that from the date of purchase until 1993 he and Ms Sands lived together at the house and equally shared the mortgage loan repayments and all ancillary expenses. He said that in 1998 he paid some $30,000 off the mortgage after having received a gift from his parents. He claimed that he was beneficially entitled to a half share in the house due to either the express agreement or resulting trust based on his contributions. On the basis of that interest, he sought an order for the sale of the property pursuant to PLA s 126 as well as orders in relation to the distribution of the proceeds of sale. Ms Sands denied that there was a de facto relationship or an agreement in relation to the property or that Mr Silvester had any beneficial interest in the property. 509 For present purposes, it is not necessary to consider the reasoning of E M Heenan J as to the beneficial ownership of the property. This was a detailed analysis of the multitude of payments and financial transactions over a period of many years. Rather, it is sufficient to note that his Honour found that the net proceeds of the sale of the property, after a notional amount to discharge the outstanding balance of the joint loan, should be allocated between the parties on the basis that the beneficial interests held by the parties were in the order of: Mr Silvester 46%, Ms Sands 49% and Ms Sands' mother 5%.392 510 The relevant issue for present purposes was that there then needed to be an accounting between the parties for what occurred after their final separation in May 1995. Ms Sands continued to reside at the property for some time but later moved to other premises occasionally returning to the property for periods which were never precisely established. E M Heenan J found that since June 1994 Ms Sands had met all the mortgage repayments and other recurrent expenditure for rates, water use, electricity and so on in respect of the premises. The 391 Silvester v Sands [2004] WASC 266 [141] (E M Heenan J) (Silvester). 392 Silvester [128] (E M Heenan J). His Honour calculated the shares based the notional contributions to the purchase price, but for ease of reference for the present case, I have converted these to percentages. -- 163 of 253 -- [2026] WASC 301 GETHING J Page 164 property was never leased or rented. She derived no income in any other way arising from the use of the property over that time. She had the benefit of the sole occupation of the home for those periods during which she lived there and she had and retained the option of living there during periods when the property was vacant. His Honour observed that that on an accounting between the co-owners of the beneficial interests there may be an adjustment necessary to recognise that Ms Sands (and her mother) paid greater shares of the home loan repayments and other expenses associated with the maintenance and use of the property than their proportions of the beneficial interests in the property.393 The onus was on Ms Sands to establish that she paid a disproportionate share of the expenses.394 511 E M Heenan J stated the principles in the following terms:395 In an instance where the beneficial ownership of a property is shared between two people, either husband or wife, co-habitees or others, and one leaves, with the remaining co-owner continuing or taking over mortgage repayments and the responsibility for repairs and improvements, there can be an account taken in equity between those parties. For the paying party to recover an allowance for any appreciation in the value of the capital asset because of these outgoings it is necessary to prove that the expenditure has, in fact, produced an ascertainable increase in the capital value as, for example, in the case of a renovation which has enhanced the market value of a house or, in relation to the repayments of a mortgage where the repayments have effected an ascertainable reduction in the principal previously owing under the mortgage. In the absence of proof of an increase in capital value so caused, no recovery because of unrelated appreciation in value will be possible and the parties are left to hold the property, or share the proceeds of any sale, on the basis of their established beneficial interests, usually, but not always, arising from the extent of their contributions towards the costs of its acquisition. Such a claim, where it exists, will only be available in certain designated proceedings which, include a partition suit or a claim for a compulsory sale or in other proceedings which involve a termination of the proprietary interests of the co-owners whether those interests be legal or beneficial. Then there is the category of payments which do not directly enhance the capital value of the asset such as for the interest component under a mortgage or other outgoings necessary for the preservation of the property such as repairs, minor improvements and the payments of rates, taxes and other expenses deriving directly from ownership. Often there will be a situation where one of the co-beneficial owners vacates 393 Silvester [134]. 394 Silvester [137]. 395 Silvester [140] - [141]. -- 164 of 253 -- [2026] WASC 301 GETHING J Page 165 the premises and leaves the other in occupation who, staying on, through choice or necessity continues to meet the mortgage repayments, rates, taxes and other like expenditure. In that situation a remaining co-owner or co-beneficial owner may be entitled to recover a contribution, proportionate to the departed co-owner's beneficial interest in the property, to the mortgage repayments, rates, taxes and like expenditure but, in such cases, the person claiming a contribution or an account will be chargeable with an occupation rent in respect of the period in which he or she continued to enjoy sole possession of the premises - In Re Pavlou (a Bankrupt) [[1993] 1 WLR 10460] at 1049 - 1050. In some cases a court may simply set-off the payment of expenditure by the continuing occupant against the occupation rent as a matter of convenience but a strict accounting can be demanded by the parties - In Re Gorman (a Bankrupt) [1990] 1 WLR 616 at 626. In this regard, Hodgson JA said in Ryan v Dries [[2003] ANZ Con R 47] at [61]: "There seems little question about the broad principle applicable in this situation: a co-owner of property who has exercised the right to occupy the property is not liable to be charged with an occupation rent unless he or she (1) has excluded the other co-owner from occupation or (2) is claiming an allowance for expenditure in respect of the property: see Luke v Luke (1936) 36 SR(NSW) 310. If an allowance for expenditure is claimed, then, by reason of the maxim requiring the seeker of equity to do equity, the claimant can be charged with an occupation rent up to a limit of the amount allowed for the claim for expenditure: see Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476; Brickwood v Young (1905) 2 CLR 387." 512 In relation to the first class, E M Heenan J found that the subsequent mortgage payments made by Ms Sands were applied very largely in reduction of advances obtained by and used solely for her benefit. She could only show a prima facie claim for an allowance for a reduction in the principal of the home loan between June 1994 and October 1995 in the order of just over $1,000. Ms Sands claimed certain other maintenance expenses claimed, but offered no proof, so his Honour rejected them. Nor was there any evidence adduced or any submission to the effect that those items of expenditure effected any, or any ascertainable, appreciation in the capital value of the property.396 513 In relation to the second class, his Honour found that Ms Sands had an arguable claim for a contribution from Mr Silvester, 396 Silvester [142] - [146]. -- 165 of 253 -- [2026] WASC 301 GETHING J Page 166 proportional to his beneficial interest, for council rates and water rates incurred after June 1994.397 514 Then:398 Against this, however, the defendant remained in possession of Essex Street from June 1994 (during the separation), and then again after May 1995 for several years. She left the premises vacant for subsequent periods since then but has been in occupation at other times. For the whole of the period from May 1995 to the present she has been entitled to the possession of the premises. Because she seeks a contribution from the plaintiff to the expenses which I have identified in the preceding paragraph, I consider that she should be obliged to pay an occupation rent for some or all of that period after May 1995. 515 His Honour concluded that any claim for any balance due on an account would be extinguished by a charge against Ms Sands for an occupation rent:399 No claim in this respect was advanced by the plaintiff and there is no evidence upon which any acceptable estimate of a market rent for the premises could be based or upon which an assessment of mesne profits could be justified. However, the exclusive possession of the premises by the defendant has lasted for over nine years and any assessment of an occupation rent or mesne profits over that period, even at extremely modest rates, would very probably exceed the maximum which the defendant could advance as the balance due to her after an account for home loan repayments since June 1994 and for rates, taxes and insurance premiums paid on the premises. Therefore, in these particular circumstances, because of the absence of any formal claim, the extremely scant evidence available on the issues, and the high probability that a claim for any balance due on an account would be extinguished by a charge against the defendant for an occupation rent, I consider that I should follow the precedent of simply setting the defendant's payments in this regard off against an occupational rent and leave it at that which is what I have decided to do. There does not appear to me to be any significant prejudice to either party in adopting this course and there is much to be said for bringing this litigation to an end and avoiding the effort and expense of further proceedings or investigations which are most unlikely to lead to any significant measure of relief in favour of the defendant against the plaintiff or vice versa. 516 In the end, E M Heenan J took the view that unless Mr Silvester's claim could be satisfied by a money payment by Ms Sands, or 397 Silvester [145] - [146]. 398 Silvester [147] 399 Silvester [148]. -- 166 of 253 -- [2026] WASC 301 GETHING J Page 167 vice versa, the property will have to be sold and the proceeds of sale distributed in accordance with the declarations made about the extent of the equitable interests and the liability of the parties to discharge the loan secured by the mortgage.400 10.5 Fathers v Cook 517 The second decision as that of Simmonds J in Fathers v Cook.401 The parties were in a de facto relationship for a number of years. They purchased a property, referred to by the trial judge as the 'Koonawarra Close' property, as tenants in common in equal shares. The plaintiff, Ms Fathers, contributed more than 50% of the purchase price. There was a mortgage over the property in joint names. The trial judge found that there was a contractual agreement at the time the financing arrangements for Koonawarra Close were finalised that:402 (a) the defendant, Mr Cook, would pay Ms Fathers an equalising payment, with the effect that each would have contributed 50% of the purchase price; and (b) Mr Cook undertook responsibility to pay for the mortgage. Ms Fathers was entitled to relief to the effect that Mr Cook was liable from his share of the proceeds to discharge the mortgage on the Koonawarra Close property and to pay her an amount so as to equalise their contributions to the acquisition of the Koonwarra Close property.403 518 Ms Fathers moved out of the Koonawarra Close property on 9 June 2002. Mr Cook moved back into the property at the end of July 2002 where it appears he remained at the time of trial. Ms Fathers claimed occupation rent for this period. This was on the basis that, prior to moving back into the property, Mr Cook obtained a Misconduct Restraining Order (MRO) against Ms Fathers. The terms of the order referred only to where Mr Cook lived, and did not specify the address of the Koonawarra Close property. At this point in the analysis, Simmonds J referred to and followed the decision in Biviano. His Honour held that the conduct of Mr Cook in obtaining the MRO did not constitute an ouster. His Honour observed that it did not appear to have been suggested that Mr Cook continued to keep Ms Fathers out of, or 400 Silvester [150]. 401 Fathers v Cook [2006] WASC 129 [149], [156] (Simmonds J) (Fathers) 402 Fathers [140]. 403 Fathers [164]. -- 167 of 253 -- [2026] WASC 301 GETHING J Page 168 otherwise denied her the right to occupy, the property once the MRO and any extension or replacement of it had expired.404 519 Simmonds J considered a second basis for Ms Fathers' claim for occupation rent, again based on the principles stated by Meagher JA in Forgeard. This arose of out Mr Cook's claim for improvements to the Koonawarra Close property. His Honour stated that it 'is well established than a co-owner in occupation is accountable in equity for such a fee, up to the value of the improvements' citing Forgeard.405 Specifically:406 As to the net proceeds of the Koonwarra Close property, after allowance for the respondent's equalisation obligations as I have referred to them, which appear to me to be appropriately so allowed for, it also seems to me that [Mr Cook] has sufficiently called for the application of the equitable principles which provide for the possibility of an allowance to be made out of the proceeds of the sale under s 126 in respect of improvements and repairs which are capable of enhancing the value of the property. There is also the possibility under those principles, in this case, of an allowance proportionate to the other co-owner's (the plaintiff's) beneficial interest in the property for outgoings for the preservation of the property, such as payments of rates, taxes, insurance premiums, and other items, such as grounds and maintenance expenditures. 520 The amount for improvement could include an allowance for the labour of Mr Cook.407 521 Then:408 … in respect of allowances both for increases in the value of the property and the other expenditures I referred to, the person claiming the allowance is chargeable with an occupation rent in respect of the period in which the claimant enjoyed sole possession of the premises: Silvester (supra) at [141]. That period in this case runs from 31 July 2002 (the date at which I found the respondent entered possession of the property) to the date on which the assessment is to be made or the date possession ceased, whichever is the earlier. 522 His Honour observed that it seemed unlikely that the total of the renovations and other expenditure amounts, plus labour costs (some of which were disputed by Ms Fathers) would exceed the market rent for 404 Fathers [149]. 405 Fathers [156]. 406 Fathers [171]. 407 Fathers [175]. 408 Fathers [173]. -- 168 of 253 -- [2026] WASC 301 GETHING J Page 169 the period in which Mr Cook was in sole occupation of the property. Nonetheless, his Honour accepted the position of Mr Cook that there should be an enquiry and account.409 523 His Honour accepted that the Koonawarra Close property should be sold pursuant to PLA s 126 with each party having an initial entitlement to half the proceeds (after deducting sale costs). From Mr Cook's entitlement, Ms Fathers would receive the equalising amount. Mr Cook's share of the proceeds would also have to bear the costs of the discharge of the mortgage. The results of the enquiry and account would also need to reflected in the final orders made.410 10.6 Giacci v Giacci Holdings Pty Ltd 524 The third decision was another of E M Heenan J, this time in Giacci v Giacci Holdings Pty Ltd.411 The case was a claim for sale in lieu of partition. The plaintiff and the two defendants were tenants in common in equal shares of an estate in fee simple of about 39 hectares of partly-improved rural land south-east of Bunbury. The plaintiff and one of the defendants were brothers, with the corporate defendant being controlled by the defendant brother and another brother. The relationship between the plaintiff and his brothers had broken down. 525 It was not in issue that the ownership of the property must change. Nor was it in issue that the plaintiff should be able to realise and obtain one-third of the current market value of the land. The issue was how this should occur.412 The defendants sought an order compelling the plaintiff to sell his interest to them at a figure to be determined by the court on the basis of contested valuation evidence about the current market value of the entire property.413 E M Heenan J held that PLA s 126 does not a empower the court to make an order of this kind. Rather, plaintiff was entitled to insist that the sale be of the entire land, not merely of his undivided one-third share, and that it be at a sale which ensures the achievement of current market value.414 526 The plaintiff alleged that he had been unlawfully excluded from the property. He made a claim for a share of the rents and profits, 409 Fathers [178] - [179]. 410 Fathers [169]. 411 Giacci v Giacci Holdings Pty Ltd [2010] WASC 349 (Giacci). 412 Giacci [16]. 413 Giacci [17], [41]. 414 Giacci [42] - [44]. -- 169 of 253 -- [2026] WASC 301 GETHING J Page 170 allowances and/or mesne profits from the land. As to the plaintiff's claims, E M Heenan J observed:415 The poor relationship between the brothers, over recent years and at present, is such that the plaintiff claims he has been excluded from this land and that rents and other moneys paid by third persons for the first house, for the cottage, the stables and horse training facilities, as well as for occasional agistment of horses, has been received by one, or other, or both of the defendants without any accounting to him and without any share of those rents or profits being paid to him. 527 The defendants did not seek to make a claim for necessary expenditure which they incurred on the land. Rather, the issue was limited to whether there should be an inquiry and an account in relation to all rents, profits or other revenues derived by the defendants from the land over the period from April 1996 until date, and, if so, whether there should be an order that one-third of those receipts, profits or other revenues should be paid to the plaintiff.416 528 In terms of the issues arising at trial, E M Heenan J observed:417 By the commencement of the trial, however, the parties by their counsel had reached some degree of common ground about these claims. By then the plaintiff accepted that limitation issues would prevent him from seeking an account or recovering any moneys in respect of the sale to the first defendant of the first house or in respect of other improvements. The plaintiff also accepted that other limitation issues would prevent any claim for rents or profits or accounts in respect of them for more than 12 years prior to the issue of the writ, but that claims to a third of all such revenues for the period commencing 12 years before the issue of the writ to date could be pursued and were being pursued. The defendants' position, at the commencement of the trial, was to deny that there had been any rents or profits derived by either of them in respect of the land which had not been fully and appropriately shared with the plaintiff but if, despite that denial, it were proved that there were any such payments, then the defendants accepted that one-third of those gross payments would be payable to the plaintiff. 529 On the evidence at trial, E M Heenan J found that the plaintiff had not been excluded from his right to possession of the subject land but, 415 Giacci [12]. 416 Giacci [14]. 417 Giacci [58] - [59]. See also Giacci [13]. -- 170 of 253 -- [2026] WASC 301 GETHING J Page 171 rather, declined to exercise that while still maintaining his title to his one-third undivided share.418 530 His Honour adopted the analysis by Meagher JA with one adjustment for the Western Australian context. In paragraphs 6 and 7 quoted at [496], Meagher JA referred to the Statute of Anne (4&5 Anne c 3) which had the effect of giving a non-occupying co-owner a statutory right of action to recover their share of rents actually received. The Statute of Anne had been repealed in New South Wales. E M Heenan J held that the Statute of Anne continued to apply in Western Australia.419 I respectfully agree with his Honour's analysis, observing that there has been no change in the legislative regime in the intervening 15 years since Giacci was decided. For ease of reference I repeat that the relevant provision of the Statute of Anne, s 27 provides: And from and after the said first day of Trinity term,  shall and may be brought  by one joynt tenant, and tenant in common, his executors and administrators, against the other, as bailiff for receiving more than comes to his just share or proportion, and against the executor and administrator of such joynt tenant, or tenant in common … 531 E M Heenan J concluded:420 I have already concluded that the evidence does not support any finding that the defendants ousted the plaintiff from possession of this land but, rather, the position is that they exercised their rights of possession over the whole and discouraged the plaintiff from exercising his right of possession, a situation in which he acquiesced. From this position, they went on to receive rents, profits and other revenues derived from the use of the land and did not share those with the plaintiff or account to him for them. The result is that under the common law doctrines the defendants made themselves liable as bailiffs to account to the plaintiff for his share of those rents and profits. Also, they are liable to him under the Statute of Anne to the extent that their share in those rents and profits was disproportionate to their entitlement. Not having excluded the plaintiff from possession, neither defendant is liable for mesne profits. The liability to account is only for rents and profits actually received and not for what might have been received had the defendants better managed or exploited the subject land … 532 His Honour went on to consider whether or not, in addition to his right to an account of the rents and profits of the land and under the 418 Giacci [77]. 419 Giacci [86]. 420 Giacci [89] - [90] (reference omitted). -- 171 of 253 -- [2026] WASC 301 GETHING J Page 172 Statute of Anne, the plaintiff also has a right to an occupation fee. However, this claim was not pursued in the conduct of the trial so his Honour did not have to consider it further. However:421 If there had been a live claim for an occupation fee, it might have been necessary to consider any offsetting claims for enhancement in the value of the land effected by improvements made by either defendant or to bring to account payments such as rates, if any, met by the defendants. It seems, however, that the state of record-keeping by the parties, in particular by the defendants, is so poor that there is no vitality in any such possible effects, and it also seems that, in the way the action has developed and the trial unfolded, the plaintiff is content with his claim for an account at law, equity and under the Statute of Anne. 533 The final orders provided for the property to be sold, with the plaintiff having conduct of the sale. A suite of orders were made to facilitate the sale and the resolution of any disputes in the sale process. The plaintiff was then entitled to 'an inquiry and an account directed to the ascertainment of what rents, profits or other payments have been derived by the defendants arising from the letting of the first house, the cottage, the horse stables and associated horse training facilities and, upon ascertaining the extent of such receipts, an order that the defendants jointly and severally pay to the plaintiff one-third of the receipts so received plus interest'.422 The account was to be undertaken by a Registrar of the court. 10.7 Trajkoski v State of Western Australia 534 The fourth decision is the decision of Le Miere J in Trajkoski. That case concerned an objection to the confiscation of property pursuant to Criminal Property Confiscation Act 2000 (WA). The State sought a declaration that the interest of the plaintiff, Mr Trajkoski, as joint tenant in a property in Mirrabooka (Mirrabooka Property) had been confiscated to the State. This followed Mr Trajkoski being declared a drug trafficker following a drug conviction. The second plaintiff, Ms Janczak, was Mr Trajkoski's former wife, and the other joint tenant on the title to the Mirrabooka Property. She contended that the majority of the interest of Mr Trajkoski that the State claims was held on a constructive trust for her. Le Miere J was not persuaded that there was a constructive trust. 421 Giacci [92]. 422 Giacci [93]. -- 172 of 253 -- [2026] WASC 301 GETHING J Page 173 535 Almost as an aside, Le Miere J considered the issued of occupation rent:423 Finally, if I am mistaken, and the second plaintiff's alleged contributions did in fact create a constructive trust in her favour, giving her a beneficial interest in the Mirrabooka Property in excess of 50%, that interest would be set-off in equity against what she owes to the first plaintiff in occupation rent. There are two possible bases for the conclusion that the second plaintiff owes the first plaintiff occupation rent. The first is the breakdown of the plaintiffs' relationship. The breakdown of a domestic relationship has been recognised as a reason of the same nature as an ouster, and one that operates 'as an independent ground for charging the co-owner who remains with an occupation rent': Callow v Rupchev [2009] NSWCA 148 [46] (per curiam); see also McKay v McKay [2008] NSWSC 177 [51] (Brereton J). The parties separated in 'late 2007' and the second plaintiff remained at the Mirrabooka property living rent free until 'the middle of 2008'. The second plaintiff would be liable to pay occupation rent during this period. The second basis for finding that the second plaintiff owes the first plaintiff occupation rent is as follows: where a co-owner makes a claim in relation to mortgage or improvement expenses, they will be liable to their co-owner for occupation rent: Draper v Official Trustee in Bankruptcy (2006) 156 FCAFC 553 [163] (Besanko J; see also [102], [104], [114] (Rares J)). In this instance, occupation rent would be owed from August 2007, when the first plaintiff was incarcerated, and 'the middle of 2008', when the second plaintiff left the Mirrabooka Property. This is an application of the principle that a party 'who seeks equity must do equity': Ryan v Dries [2002] NSWCA 3 [71], [75] (Hodgson JA); Foregeard v Shanahan (1994) 35 NSWLR 206, 223 (Meagher JA). Therefore either because of the plaintiff's separation, or because of the second plaintiff's claim for mortgage expenses during the period of the first plaintiff's imprisonment, any mortgage repayments, rates, taxes, proven property improvements and like expenditure would be set off in equity against occupation rent in respect of the period that the second plaintiff had exclusive possession of the Mirrabooka Property: see eg Draper v Official Trustee in Bankruptcy [114] (Rares J); [163] (Besanko J); Callow v Rupchev [30], [59] - [60], [74] (per curiam); Calverley (253) (Gibbs CJ). 10.8 Stevens v Wright 536 The fifth and most recent decision if that of Acting Master Strk (as her Honour then was) in Stevens v Wright.424 As her Honour did, I will refer to the parties by their first names. The plaintiff, Simon, was the son of the late Margaret Helen Wright. Margaret died on 15 August 2012 and Simon was the executor of her estate. The defendant, 423 Trajkoski [38] (Le Meire J). 424 Stevens v Wright [2021] WASC 36 [82] - [83] (Stevens). -- 173 of 253 -- [2026] WASC 301 GETHING J Page 174 Raymond, was Margaret's second husband and together they resided at an address in Singleton (Property). Margaret and Raymond were the registered proprietors of the Property as tenants in common in equal shares. Raymond survived Margaret. Margaret's will provided that the residue of her estate was left to Simon and his brother, Margaret's other son, Grant. In earlier proceedings, Simon sought orders to compel the sale of the Property. Raymond was the defendant. By a deed of family arrangement dated 13 November 2014 (Deed), the proceeding was settled. It was not in issue that, by the Deed, Raymond was entitled to occupy the Property until the earlier of his death or 9 May 2019. The Deed provided for how the sale proceeds were to be dealt with. Around May 2019, Simon sought to engage with Raymond to sell the Property. The dispute was not able to be resolved so Simon commenced the second action. 537 In the second action, Simon sought orders that: the Property be sold free of encumbrances; that he be given conduct of the sale and for orders which would facilitate the same; that Raymond pay occupational rent for the Property from 10 May 2019 to date; and that Raymond be ejected from the Property. Strk Acting Master granted summary judgment based on admissions made by Raymond entitling Simon to sell the property free from encumbrances, with ancillary orders to facilitate the sale process. Her Honour declined to award summary judgment in relation to the plea of ouster and the claim for ejectment, observing that there remained real uncertainty as to Simon's right to judgment without further investigation of the facts. 538 Her Honour set out the principles relating to ouster in the following terms:425 In the context of co-ownership, ouster refers to a wrongful act of exclusion of one co-owner by another. An essential characteristic of a tenancy in common, where each party owns an undivided interest in the whole, is that each of the tenants has the right to occupy the whole of the property in common with the others…It has been long recognised that as all are equally entitled to occupation, one cannot claim rent from the other - compensation is not provided to co-owners who do not remain in possession of jointly owned property… However, ouster is one of the limited occasions where a court may allow compensation for sole occupation of co-owned property, as compensation for the interference with a proprietary right. 425 Stevens [79] - [83] (some references omitted and emphasis added). -- 174 of 253 -- [2026] WASC 301 GETHING J Page 175 Exclusive possession will not by itself establish ouster. There must be a wrongful act. A wrongful act may include the exclusion of a co-owner, or a refusal to allow the co-owner to exercise their right to possession. Ouster tends to arise in support of a claim for occupation rent, and the cases tend to concern the breakdown of the relationship as between co-owners… The plaintiff refers to the decision of Forgeard v Shanahan as authority which supports his entitlement to an order for ejectment. In the context of an application for sale, the decision of Forgeard v Shanahan concerns a plaintiff who sought to make a defendant accountable for an occupation fee and that defendant who sought an allowance in her favour for the expenditure incurred by her. Meagher JA at 221 observed that this raised the question of the rights one co-owner has against another, particularly when one has been in occupation and the other has not. The position is summarised by Meagher JA in sixteen points at 221 - 224 of his Honour's decision. Counsel for the plaintiff refers specifically to the observation made at point 8 on 223, as follows: … Turning to the liability of a co-owner in occupation to pay an occupation fee, the position at law is fairly clear. He is not liable unless he excluded his co-owner, in which case he rendered himself liable to ejectment and for mesne profits, or if he constituted himself a bailiff, in which event he would be liable in an action of account, like any other bailiff. 10.9 Summary of applicable principles 539 From this review of the authorities, it is apparent that there are some divergences in the way in which the principles are expressed and applied. However, looking at the case law as a whole, the authorities support nine principles which are relevant to the determination of the issues in dispute in this case. 540 First, the starting point is that the proceeds of the sale of the Property are to be divided between the co-owners in proportion to their interests in the property. 541 Second, (at least in Western Australia) a co-owner not in occupation has a statutory right pursuant to the Statute of Anne to receive a proportion of any rent actually received by the co-owner in occupation. The liability to account is only for rents and profits actually received and not for what might have been received had the co- owner in occupation better managed or exploited the property. In -- 175 of 253 -- [2026] WASC 301 GETHING J Page 176 Giacci, interest was payable from the date on which the funds were received by the co-owners in occupation.426 542 Third, where only one co-owner is in occupation, a key issue is whether that co-owner ousted the other co-owner or whether the other co-owner should be taken to have chosen not to exercise their legal right to occupy the land. Exclusive possession will not by itself establish ouster. Nor will the bare receipt of rent from the property. There must be a wrongful act. A wrongful act may include the exclusion of a co-owner, or a refusal to allow the co-owner to exercise their right to possession. Ordinarily it requires an express denial of the title and right to possession of the other co-owner, communicated to the other co-owner openly and unequivocally. For example, in Biviano, ouster was not established by the grant of the apprehended violence order but was established by an express denial of the respondent's interests in the property in the pleadings. 543 Fourth, where one co-owner has ousted the other, the co-owner in occupation is liable to pay an occupation fee to the other co-owner. The occupation fee is in the nature of mesne profits, that is damages for trespass, arising from the occupying co-owner's wrongful ouster. An occupation fee is assessed on the basis of the open market rental value of the property. The measure is a reasonable sum in the nature of rent. Where the other co-owner is in occupation, the value of the occupation fee may be reduced to reflect the fact that there is already a co-owner in occupation. The onus of establishing the quantum of the occupation fee is on the party claiming it. 544 Fifth, one co-owner may claim from another co-owner an allowance proportionate to the latter's interest in the property for improvements and repairs which enhanced the value of the property (Improvement Allowance). The enhanced value will usually arise from renovations. The Improvement Allowance is not a reimbursement for the amount expended. The onus is on the claiming co-owner to establish that the expenses paid produced an ascertainable increase in the capital value of the property. 545 Sixth, one co-owner may claim from another co-owner an allowance proportionate to the latter's interest in the property for outgoings for the preservation of the property (Preservation Expenses). This class of expenses includes council rates, water rates and insurance (each of which were allowed in Forgeard), Meagher JA 426 Giacci [93], [105]. -- 176 of 253 -- [2026] WASC 301 GETHING J Page 177 said that no allowance could be made for 'mere repairs and maintenance'. However, his Honour accepted a claim for pest control. In Trajkoski, Le Miere J referred to 'mortgage payments, rates, taxes, proven property improvements and like expenses'.427 E M Heenan J in Silvester uses the same language of 'mortgage repayments, rates, taxes and other like expenditure'.428 In my view, the dividing line is between expenses that would ordinarily be paid by an owner of property (which can be claimed as preservation expenses) and expenses that would ordinarily be paid by a tenant (which cannot). So expenses paid by a co-tenant in occupation that would ordinarily be paid by a tenant cannot be claimed against the other co-tenant. An example of an expense ordinarily paid by a tenant would be power expenses. The onus is on the claiming co-owner to establish that they paid a disproportionate share of the Preservation Expenses. 546 Seventh, where a co-owner makes a claim for either an Improvement Allowance or Preservation Expenses, the co-owner becomes liable to pay an occupation fee in respect of the period in which that co-owner was in sole occupation. A co-owner seeking equity must do equity. At least in this circumstance, the occupation fee is limited to the value of the Improvement Allowance and Preservation Expenses. The corollary also applies. Where a co-owner claims an occupation fee (which could only be as a result of an ouster) the claim is subject to payment of any Improvement Allowance and Preservation Expenses. 547 Eighth, money paid under a joint mortgage can be brought to account in the distribution process. Although in Forgeard Meagher JA opined that mortgage payments could not be brought to account (on his analysis as part of what I have termed the Improvement Allowance), the balance of authority is that they can. The statement of principles by E M Heenan J in Silvester at [511] refers to mortgage repayments when considering both the Improvement Allowance and Preservation Expenses. Le Meire J in Trajkoski makes no distinction, opining that any mortgage repayments could be set off in equity against a claim for occupation rent ([535]). 548 Ninth, the position of the parties in points one to eight may be varied by agreement between them. As was the case in Fathers, the contractual position can be brought to account in the orders made for the distribution of the proceeds of the sale of the property pursuant to 427 Trojkoski [38]. 428 Silvester [141]. -- 177 of 253 -- [2026] WASC 301 GETHING J Page 178 PLA s 126. However, as I have found in Part 9, in the present case, the only aspect in which the ordinary application of co-ownership principles was varied by agreement was that Mr Scott was to be responsible for the imbalance in initial contributions by contributing more to loan repayments. However, that imbalance was ultimately met with the arrangements around Home Loan 2 (section 9.9). 10.10 Issues arising for determination 549 Applying the principles set out in the preceding section, and adding in the other claims raised by Ms Marr, ten further issues arise for determination: • Did Mr Scott oust Ms Marr (Part 11)? • What rent did Mr Scott in fact receive (Part 12)? • Can Ms Marr claim any further occupation fee (Part 13)? • What other contributions did the parties make (Part 14)? • How should the mortgage payments be accounted for (Part 15)? • What other expenses are claimed in relation to Links Road (Part 16)? • Does Mr Scott owe any fiduciary obligations to Ms Marr (Part 17)? • Is Ms Marr entitled to a greater than 50% beneficial interest in Links Road (Part 18)? • How should the proceeds of the sale of Links Road held in court be distributed (Part 19)? • What final orders are appropriate (Part 20)? 11. Did Mr Scott oust Ms Marr? 11.1 Ms Marr's position 550 Ms Marr pleads that between about January 2000 and about June 2003, Mr Scott excluded her from occupying the Property by personally occupying it to benefit his firm, Scott & Associates. This is said to -- 178 of 253 -- [2026] WASC 301 GETHING J Page 179 entitle her to occupation rent equal to her proportional beneficial interest in Links Road during this period.429 551 Ms Marr then pleads that between about August 2008 and 9 June 2023, Mr Scott again excluded her from occupation of the Property. Three series of facts are identified in the particulars:430 a) Around August 2008, the defendant verbally informed the plaintiff that his brother Mr Kevin Scott had moved in to the Property and paid rent at $200 per week. Despite the plaintiff stating to the defendant that she was unhappy with that arrangement and words to the effect that the rate of rent charged by the defendant was significantly below market, the defendant continued with his arrangement with Mr Kevin Scott and either failed or refused to obtain the plaintiff's consent to that arrangement, or alternatively obtain rent from Mr Kevin Scott at an amount reflective of the current market rate for his period of occupation of the Property. b) On or around September 2011, the plaintiff, the defendant, Mr Jeff Matthews, Mr Eric Kingsmill and Ms Sarah Kingsmill met outside the Property. During that meeting, the defendant stated to the plaintiff that he had moved into the Property and words to the effect that the defendant 'expired all her equity by not contributing'. c) Between around early-2011 and late-2014, and again between early-2020 and early-2022, the defendant rented the Property out to various 3rd party tenants without informing the plaintiff or seeking her consent in respect of any proposed or actual arrangements in that regard. Namely, the defendant rented the Property to: (i) Mr Reece Scott; (ii) Ms Sara Chirichilli; (iii) Ms Catherine Skinner; (iv) Mr William Rennie; (v) Ms Kirsten Tyson; (vi) A Ms 'Crystal'; (vii) Mr Jamie Botting; 429 Claim, pars 18 and 19. 430 Claim, par 20. -- 179 of 253 -- [2026] WASC 301 GETHING J Page 180 (viii) Mr Sean Scott; (ix) Mr Cesar Alvarez; (x) Ms Susan Butler; and (xi) Mr Cheyne Pearce. 552 Ms Marr then plead that by reason of the matters I have referred to at [550] and [551], Mr Scott 'constructively ousted' her from her joint right of possession of Links Road between about January 2000 and about November 2003, and further or alternatively between about July 2008 and 9 June 2023.431 11.2 Mr Scott's position 553 Mr Scott denies the claims made by Ms Marr said to constitute a constructive ouster. He reiterates that he seeks an account as to the contributions of the parties as co-owners. Specifically, Mr Scott says that:432 (a) at all material times, his occupation of Links Road was in exercise of his right of possession of the land as a co-owner and not pursuant to an agreement with Ms Marr; (b) all material times, the receipt by him of the rents did not operate as an ouster; (c) at no time did he agree to pay Ms Marr occupation rent; (d) Ms Marr occupied Links Road from on or about 12 November 1998 to mid-2002 and 20 June 2014 to sometime in or about September 2014; (e) from time to time during the period alleged, he leased his interest in Links Road to third parties in exercise of his right as a co-owner; and (f) he has accounted to her for all rent that he received. 11.3 Did Mr Scott oust Ms Marr? 554 I have summarised the principles relating to ouster at [542]. In summary, ouster requires an express denial of the title and right to 431 Claim, par 21. 432 Defence , par 11. -- 180 of 253 -- [2026] WASC 301 GETHING J Page 181 possession of the other co-owner, communicated to the other co-owner openly and unequivocally. 555 Following the approach of E M Heenan J in Giacci (in the passage I have quoted at [531]), in this case, for an ouster to occur, something more is required than Mr Scott, as the owner in possession, exercising his right of possession over the whole and discouraging Ms Marr, the other owner, from exercising her rights, a situation in which she acquiesced. In my assessment, this characterises the period of Mr Scott's occupation from when Ms Marr moved out (January 2001) to when Mr Biesiekierski moved in (February 2004). There was no ouster. 556 I would make the same characterisation of the period in which Kevin occupied Links Road. Ms Marr's concerns focussed on ensuring that Kevin paid a fair market rent. 557 In cross-examination, Mr Scott accepted that he did not consult Ms Marr before letting Links Road to Kevin or Reece, only telling her afterwards. However, he added that, likewise, Ms Marr had not consulted with him prior to letting Links Road to the tenants she arranged, only letting him know afterwards.433 I do not consider Mr Scott's lack of consultation to be indicative of an ouster. 558 However, from the September 2011 meeting (section 7.13), Ms Marr can no longer be characterised as acquiescing to Mr Scott, or tenants arranged by him, having possession of the whole of Links Road. This conclusion is reinforced by the 2011 correspondence (section 7.14) where Ms Marr asserts her right to reside at Links Road in no uncertain terms. From this point on, Mr Scott ousted Ms Marr, essentially for the term of the lease to Reece Scott and others (November 2011 to June 2014). 559 It required an application to the Magistrates Court for Ms Marr to be able to occupy Links Road (section 7.17). The outcome was that, in June 2014, Ms Marr was able to reassert her right to occupy Links Road, so the ouster came to an end. 560 However, she moved out in September 2014. The position then reverted to Mr Scott exercising his right of possession over the whole and discouraging Ms Marr from exercising her rights, a situation in which she acquiesced. So there was no ouster. 433 Transcript 18.6.26, pages 1524 - 1527 (Scott). -- 181 of 253 -- [2026] WASC 301 GETHING J Page 182 561 This position continued until Ms Marr commenced this present action in October 2020. At this point it could no longer be said that she was acquiescing to Mr Scott being in sole possession. From that point on, there was a second ouster. 11.4 What, if any, occupation fee is payable? 562 As set out at [543], having found there to be an ouster, Mr Scott is liable to pay an occupation fee to Ms Marr. The onus of establishing the quantum of the occupation fee is on the party claiming it.434 563 The occupation fee is to be based on the market rental value of Links Road. 564 In each of the two time periods in which I have found an ouster, Links Road was occupied by a rent paying tenant. Mr Scott accepts that Ms Marr is entitled to 50% of the rent actually received. An occupation fee is based on fair market rent. So the amount of the occupancy fee would be 50% of the difference between fair market rent and actual rent (following the reasoning in Biviano quoted at [506]). 565 Mr Sanchez gave evidence that in 2016 the gross fair market rent for Links Road would have been around $300 per week.435 If let through an agent, around 10% would be deducted for the usual agents' commission and fees.436 So the fair market rent actually received by the owner would have been in the order of $270. The average rent paid by Reece and others was $298.32 per week ([340]). On this basis, Ms Marr has not established any entitlement to occupation rent over the above her proportion of the actual rent received. 566 As to Ms Butler and Mr Pearce, they paid an average of $361 per week across their tenancy. This was received gross, that is, without any deduction of real estate's commission and fees ([385]). Mr Sanchez gave evidence that in 2020 the gross fair market rent for Links Road would have been in the range of $300 to $500 per week.437 After deducting for the usual agents' commission and fees, this becomes $270 to $450.438 The rent initially paid by Ms Butler and Mr Peace was $325 per week rising to $400 per week in 2022. When asked by Mr Marr whether in February 2020 $325 per week was a fair market rent, 434 Biviano 704 quoted at [506]. 435 Transcript 19.6.26, pages 1660 and 1673 - 1676 (Sanchez). 436 Transcript 19.6.26, pages 1667 - 1668 (Sanchez). 437 Transcript 19.6.26, pages 1662 - 1663 (Sanchez). 438 Transcript 19.6.26, page 1668 (Sanchez). -- 182 of 253 -- [2026] WASC 301 GETHING J Page 183 Mr Sanchez said that average rents were between $300 to $600, with $600 being for the properties in better condition.439 When Ms Marr asked Mr Sanchez directly whether he considered $325 per week to be fair market rent, his answer was equivocal.440 The end result is that there is no evidence that the rent paid received from Ms Butler and Mr Pearce was not fair market rent. 567 In summary, while Ms Marr has proven that she was ousted for two periods, she has not proven an entitlement to any occupation fee over and above the 50% of actual rent received to which she was already entitled. 12. What rent did Mr Scott in fact receive? 12.1 Ms Marr's position 568 Ms Marr pleads that between about November 2003 and early- 2022, Mr Scott rented Links Road to one or more third parties and received rental income from those parties.441 She claims that Mr Scott has not properly accounted to her for this income. 569 In the end, Ms Marr only had two issues with the accuracy of the record of rent receipts in the Rent Transactions Schedule. Each relates to the rents said to have been received from Tim Brown, which I have dealt with the sections 7.10 and 7.12. The consequence of the finding at [297] is that the amount of $1,500 should be deducted from the total in the Rent Transactions Schedule. 570 Ms Marr also asserted that Mr Scott received some payments from Mr Rilston and Mr Brown which he did not account for. I have found that this was not the case ([288] and [294]). 12.2 Mr Scott's position 571 Mr Scott accepts that from time to time while the parties co-owned Links Road, he leased his interest to third parties in exercise of his right as a co-owner. However, he has accounted to Ms Marr for all rent that he received.442 572 Mr Scott accepts that as he and Ms Marr as are co-owners of Links Road, he is liable to account for the monies he actually received either 439 Transcript 19.6.26, page 1683 - 1684 (Sanchez). 440 Transcript 19.6.26, pages 1684 - 1685 (Sanchez). 441 Claim, par 22. 442 Defence, par 11.5. -- 183 of 253 -- [2026] WASC 301 GETHING J Page 184 as a bailiff for Ms Marr or under the Statute of Anne based on Ms Marr's 50% entitlement.443 However, he says that he has accounted to Ms Marr for all rent that he received.444 573 I have made findings in Part 7 as to who occupied Links Road, when and on what basis. 574 Mr Scott says that rent was received and paid into Streamline 1 and Streamline 2 and the total sum of rent received was $159,296.00: (a) Streamline 1 - $39,613 (b) Streamline 2 - $119,683 In most instances rental payments were referenced by the tenant's name.445 575 This rent included the payments made by the tenants arranged by Ms Marr, being Mr Biesiekierski, Mr Rilston and Mr Brown. As set out at [569], the rent allocated to Mr Brown needs to be reduced by $1,500. By tenant, the breakdown was (rounded to the nearest dollar): Tenant Amount Para Byron Scott $4,200 [275] Dick Biesiekierski $6,590 [281] Brian Rilston $7,158 [289] Tim Brown $10,300 [299] Kevin Scott $28,915 [308] Reece Scott $13,790 [340] Sean Scott $7,885 [340] Willian Reni $4,950 [340] Sara C $720 [340] Cesar A $4,200 [340] Catherine S $960 [340] Jamie B $5,800 [340] Crystal Y $1,170 [340] Kirsten T $500 [340] Cheyne Pearce and Susan Butler $60,658 [384] Total $157,796 576 Mr Scott's income tax returns are in evidence.446 He said he would claim 50% of the rental income and 50% of expenses. He gave 443 Defence, par 14.3. 444 Defence, par 11.6. 445 Defendant’s Opening Submissions, pars 25, 52. -- 184 of 253 -- [2026] WASC 301 GETHING J Page 185 evidence that the income claimed did not always match the rent he has calculated for the trial. This was because for trial purposes he identified additional rent which was either a net bank transfer or a cash deposit. He said that he never prepared a partnership or joint venture tax return with Ms Marr. Rather, on his accountant's advice, he claimed 50% as that was his ownership entitlement. 577 It is instructive for the analysis I am required to undertake to summarise what Mr Scott has claimed in relation to Links Road (the figures in italics were barely legible, so may be incorrect). Year Gross rent Interest deduction Other deductions 2009/2010447 $3,800 $4,316 $3,086 2010/2011448 $3,855 $6,862 $1,004 2011/2012449 $11,007 $4,669 $4,072 2012/2013450 $7,910 $3,758 $1,284 2013/2014451 $7,010 $2,831 $1144 2014/2015452 $0.00 $0.00 $0.00 2015/2016453 $0.00 N/A $0.00 2016/2017454 $0.00 N/A $0.00 2017/2018455 N/A N/A N/A 2018/2019456 N/A N/A N/A 2019/2020457 $3,250 $499 $1,170 2020/2021458 $0.00 N/A $0.00 2021/2022459 $0.00 N/A $0.00 2022/2023460 N/A N/A N/A 578 There is some earlier taxation information in evidence,461 however it does not advance the analysis to review them in detail. 446 DTB 4. See generally, Transcript 24.2.26, pages 1238 ff. 447 DTB 4, page 100. 448 DTB 4, page 104. 449 DTB 4, page 107. 450 DTB 4, page 114. 451 DTB 4, page 118. 452 DTB 4, page 126. 453 DTB 4, pages 129 - 130. 454 DTB 4, pages 132 - 133. 455 DTB 4, pages 137 - 139. 456 DTB 4, pages 140 - 142. 457 DTB 4, page 144. 458 DTB 4, page 147. 459 DTB 4, page 150. 460 DTB 4, pages 152 - 153. 461 DTB 4, pages 2 - 98. -- 185 of 253 -- [2026] WASC 301 GETHING J Page 186 579 Ms Marr is critical of Mr Scott for the discrepancies between his evidence and what he put in his tax returns.462 580 It is apparent that Mr Scott now identifies more rental income than he claimed in his tax returns. Ms Marr submits that this undermines the credibility of his evidence.463 However, rather than undermining his evidence, this supports its reliability: having accounted for it in these proceedings, he will now need to go back and amend his tax returns. Mr Scott explained that when he was declaring his income he had looked through the books and added up the rent but hadn't included the net bank transfers and bank deposits and perhaps the phone transfers.464 Moreover, of every additional dollar of rent he identifies, he accepts that 50% should go to Ms Marr. 12.3 Determination 581 There is an issue as to whether Scott & Associates were ever a tenant (see section 7.3). However, as Scott & Associates is no more than a business name for Mr Scott's business ([44]), it is not a separate legal entity capable of leasing Links Road from Mr Scott and Ms Marr. Rather, if there was occupancy by 'Scott & Associates', this is properly characterised as occupancy by Mr Scott personally. So the issue of whether Links Road was occupied by 'Scott & Associates' or Mr Scott personally is neutral to the final analysis. 582 Ms Marr has not been able to identify any rent payment that Mr Scott did not pay into either the Streamline 1 or Streamline 2 account. Accordingly, I am satisfied that Mr Scott accounted for all the rental income he received. 583 I am satisfied as to the accuracy of Mr Scott's analysis, save for the $1,500 which was allocated to Mr Brown as rent but which should be a contribution by Ms Marr. 584 I find that the total rent in fact received was $157,796, of which each of Ms Marr and Mr Scott is entitled to 50%, being $78,898. 462 Plaintiff’s Closing Submissions, par 87. 463 See for example: Transcript 18.6.26, page 1482. 464 Transcript 24.2.25, page 1240 (Scott). -- 186 of 253 -- [2026] WASC 301 GETHING J Page 187 13. Can Ms Marr claim any further occupation fee? 13.1 Ms Marr's position 585 Ms Marr makes a claim for what she describes as 'Occupation Rent',465 but what is properly characterised as an 'Occupation Fee' ([543]). 586 Ms Marr further pleads that between about 2006 and 2014, and again between 2020 and early-2022, Mr Scott rented Links Road to third parties at weekly rental rates which he knew or ought to have known were substantially less than the market value for the weekly rental rates receivable with respect to the property. 587 Ms Marr asserts that the tenancies arranged by Mr Scott (Bryon, Reece and others, Butler and Pearce) were not at market rent. She seeks the difference between the actual rent received and the market rent. 588 Ms Marr also asserts that Mr Scott was under an obligation to always seek the 'highest, best use' of Links Road. This obligation at least required him to do what was necessary for the premises to be leased for a complying commercial purpose within the initial zoning for example, a medical suite. 589 In Closing Submissions466 Ms Marr submits that Mr Scott is liable for the difference between actual rent received and market rent from 2009 to 2014 on the basis Links Road was a residential tenancy and 2014 to 2023 on the basis that it was a commercial tenancy. The shortfall is said to be $326,615.50, of which Ms Marr is entitled to 62.4% given her beneficial interest, giving $203.808.07. 13.2 Mr Scott's position 590 Mr Scott denies that the rent for Links Road was at any time less than the market rent. 13.3 Determination 591 As set out in section 10.9, there are two bases on which one co- owner may seek an occupation fee from another co-owner. The first is where there has been an ouster. As set out in Part 11, while Ms Marr was ousted from Links Road for two periods, she is not entitled to an 465 See also Claim, par 24. 466 Plaintiff’s Closing Submissions, Schedule. -- 187 of 253 -- [2026] WASC 301 GETHING J Page 188 occupation fee over and above her proportionate share of the rent actually received. 592 The second basis is where the co-owner in occupation makes a claim for what I have defined as an Improvement Allowance or Preservation Expenses.467 As Mr Scott has made a claim for Preservation Expenses, there must be set off against this claim a notional occupation fee at least for the period in which he was in sole occupation of Links Road. The rationale for this approach is set out in the passage from the decision of Mahoney JA in Forgeard which I have quoted at [502]. 593 I reiterate that the onus of establishing the quantum of the occupation fee is on the party claiming it.468 594 The first period in which Mr Scott was in sole occupation was between when Ms Marr left in January 2000 to March 2023 when Byron was a tenant (see sections 7.2 to 7.7). As to this period, Ms Marr has not persuaded me that Links Road was in a fit state to be let on the open market. I have described in the work undertaken up to the point at which Kevin left Links Road (see [309] to [312]). It is significant. Even once Kevin left, there was still a great deal of work to be done.469 I find that in the first period of Mr Scott's sole occupancy Links Road had no fair market rent. 595 The second period is from 6 September 2014 (the day after Ms Marr left) to 21 February 2020 (being the day before the commencement of the tenancy with Ms Butler and Mr Pearce) (section 7.19). 596 Using the same approach as Beazley JA in Biviano,470 I assess the occupation fee at 50% of market rental. 597 Mr Sanchez gave evidence that the fair market rental in 2016 was $300 per week.471 After deducting for the usual agents' commission and fees, this becomes $270.472 He opined that by 2021 the gross fair market rent for Links Road would have been in the range of $300 to $500 per week.473 After deducting for the usual agents' commission 467Silvester [140] - [141]; Fathers [173]; Giacci [9]; Trajkoski [38]. 468 Biviano 704 quoted at [506]. 469 As described by Mr Scott in the letter I have quoted at [335]. 470 Biviano 506. 471 Transcript 19.6.26, page 1660 (Sanchez). 472 Transcript 19.6.26, page 1667 (Sanchez). 473 Transcript 19.6.26, pages 1662 - 1663 (Sanchez). -- 188 of 253 -- [2026] WASC 301 GETHING J Page 189 and fees,474 this becomes $270 to $450. The median rental data contained in Mr Sanchez's report suggested that rents over this time went both up and down, and, in effect, stayed static.475 I find the fair market rent over the period from September 2014 to January 2020 to be $270 per week. Mr Scott was in sole occupation from 6 September 2014 to 21 February 2020. For reasons which become apparent in Part 17, I divide this into two periods. 598 The first is 6 September 2014 to 31 December 2017, being 172 weeks. The occupation fee becomes $46,440 (172 weeks x $270). Ms Marr is entitled to half, being $23,220. 599 The second is from 1 January 2018 to 21 February 2020, being 111 weeks. The occupation fee becomes $29,970 (111 weeks x $270). Ms Marr is entitled to half, being $14,985. 600 Ms Marr claims that after 2014 the market rent should be assessed on a commercial basis, not a residential basis. However, the law is as set out by E M Heenan J in Giacci:476 The liability to account is only for rents and profits actually received and not for what might have been received had the defendants better managed or exploited the subject land… So this aspect of Ms Marr's claim fails. I add that this principle makes it clear that the accounting that occurs under co-ownership principles is an account on a common basis, and not on a wilful basis (see [732] and [734]). I come back to Ms Marr's claim for rent on the basis of a commercial tenancy when considering the breach of fiduciary duty argument (section 17.7). 601 In summary, Ms Marr is entitled to an occupation fee of $38,205 ($23,220 + $14,985). 14. What other contributions did the parties make? 14. Mr Scott's position in evidence in chief 602 Given that Mr Scott has provided the more detailed information relating other contributions, it is instructive to consider his position and evidence first. 474 Transcript 19.6.26, page 1667 (Sanchez). 475 Exhibit 29. 476 Giacci [89] - [90] (reference omitted). -- 189 of 253 -- [2026] WASC 301 GETHING J Page 190 603 In the Defendant's Opening Submissions, Mr Scott says that he and Ms Marr made further contributions to Links Road during the ownership period. This was by payments predominantly to Streamline 1 and Streamline 2 and on one or two occasions direct to Home Loan 1 and Home Loan 2. 604 Mr Scott gave evidence as to how he used the CBA Visa Card ending in 6875 (CBA Visa):477 That is a Visa card I opened with the Commonwealth Bank, and it's what I use to pay for day-to-day expenses as well on Links Road. But I've also used that, I've had it established already, that wasn't the first statement for that account. And I collected and made note of the smaller payments and what-have-you that I did for Link Road. You know, if I was in Bunnings and I bought something for Links Road, it would usually be with my Commonwealth Visa card. But I've also used the Commonwealth Visa card — it's a personal account, essentially a personal account before and afterwards. I used it sometimes for balance transfers. I used it when I didn't have enough money to pay for the up- and-coming mortgage and I needed to move some money across. So I used that to transfer from into the Streamline to make sure there was enough money to pay for the mortgage on some months when there wasn't enough money in there. So I really consider this a personal account outside the two Diana Marr - Phil Scott accounts, Streamline 1 and Home loan 1/2, and my own account Streamline 2 that I established later on. Those are the four accounts used solely dedicated to Links Road. But this one here is my own personal Visa card that I had prior and continue to have now. And I used it for quick funding from time to time and I used it to pay for the small items as convenient. I didn't write a check in Bunnings for something small. 605 Mr Scott prepared and tendered an analysis of Streamline 1 (Streamline 1 Analysis).478 This was based on the bank statements for Streamline 1.479 Each transaction is itemised by date and amount. For the months where there was no statement, he interpolated the data from other sources. In summary, his analysis was: Withdrawals for expenses $ 18,496.98 Bank fees, charges or interest $ 2251.58 House insurance $ 1,252.50 Water Corp $ 862.10 Land tax $ 0.00 City of Melville $ 2,033 477 Transcript 23.2.26, pages 1171 - 1172 (Scott). 478 Exhibit 24. See generally: Transcript 24.2.26, pages 1231 ff (Scott). 479 PTB C. -- 190 of 253 -- [2026] WASC 301 GETHING J Page 191 Work maintenance repairs $ 12,097.80 Mortgage payments $128,318.74 Home loan 1 $110,846.38 Home loan 2 $ 22,133 Payments to Visa Card $ 10,330.07 Sub-total $157,145.79 Less Deposits $157,145.79 Rent $ 39,472.00 Net contribution - D Marr $ 16,688.05 Net contribution - P Scott $100,985.74 Balance $0.00 606 In a similar way, Mr Scott prepared and tendered an analysis of Streamline 2 (Streamline 2 Analysis).480 This was based on the bank statements for Streamline 2.481 Again, transaction is itemised by date and amount. In summary, his analysis was: Withdrawals for expenses $29,857.44 Bank fees, charges or interest $302.76 House insurance $1,188.00 Water Corp $8,227.78 Land tax $3,9212.30 City of Melville $ 6,252.00 Work maintenance repairs $9, 915.80 Mortgage payments $164,093.00 Home loan 1 $130,943.00 Home loan 2 $33,150.00 Payments to Visa Card $38,847.17 Sub-total $232,797.61 Less Deposits $232,797.61 Rent $119,683.00 Net contribution - D Marr $0.00 Net contributions - P Scott $113,114.61 480 Exhibit 25. See generally: Transcript 24.2.26, pages 1234 ff (Scott). 481 PTB D. -- 191 of 253 -- [2026] WASC 301 GETHING J Page 192 Balance $0.00 607 Mr Scott prepared and tendered a schedule entitled 'Summary of Contributions'.482 He gave evidence that he prepared this document by going through three sources to identify all the amounts which he says are contributions and withdraws in relation to Links Road, being:483 (a) Streamline 1; (b) Streamline 2; and (c) the CBA Visa. As mentioned, there is an almost complete set of the bank statements for Streamline 1484 and a complete set for Streamline 2.485 There is also an almost complete set of the accounts for the CBA Visa.486 608 Mr Scott summarises the contributions as follows:487 CONTRIBUTIONS DURING OWNERSHIP OF THE PROPERTY C1 Streamline 1 - Owner Contributions DM PS Deposits Withdrawals Add withdrawals (PS to reimburse Visa) $27,510.00 -10,321.96 $103,621.95 -2,636.05 -10,330.07 Net Deposits over Withdrawals $17,188.05 $90,655.83 C2 Streamline 2 - Owner Contributions DM PS Deposits Withdrawals Add withdrawals (PS to reimburse Visa) $153,355.35 -40,240.74 -38847.17 Net Deposits over Withdrawals - $74,267.44 C3 Commonwealth Visa Card - Owner Payments/Contributions DM PS Insurance Watercorp Land Tax $7,168.00 13,749.65 1,014.10 482 Exhibit 12. 483 See generally: Transcript 23.2.26, pages 1169 ff; 24.2.26, pages 1232 ff (Scott). 484 PTB C. 485 PTB D. 486 DTB 2. 487 Defence Closing Submissions, Annexure A, page 3. -- 192 of 253 -- [2026] WASC 301 GETHING J Page 193 City of Melville Work, maintenance, repairs 23,452.81 8,957.87 Contribution by direct payment from personal Visa Card $54,342.43 609 Mr Scott took out reimbursements to the CBA Visa as these amounts reflect amounts he claims as expenses (see Part 16). The net result ensures that he does not get the benefit of these payments twice.488 610 He then claims the amounts paid from his CBA Visa as expenses as contributions. In substance, he paid these expenses from his own funds. 611 In the Defence Closing Submissions, Annexure A, Part C, Mr Scott sets out the contributions he says each party made to Home Loan 1 and Home Loan 2. I deal with this in Part 15. 612 In the Defence Closing Submissions, Annexure B, Part C, Mr Scott sets out some other direct payments he says were made by each party. I deal with the Vandalism expenses paid by Ms Marr in section 9.7. Mr Scott is entitled to claim the early payments made from the Scott & Associates cheque account, as he paid these amounts from his own funds. An amount of $1,515.05 needs to be added to his contribution ($1,515 rounded to the nearest dollar) (see [650] to [651]). 14.2 Ms Marr's position and evidence 613 Ms Marr gave the following general evidence in relation to banking arrangements: (a) where there is a reference to a quick deposit or transfer or phone transfer that is not labelled, it is hers;489 (b) she would ordinarily round up deposits over the minimum required to cover fees;490 and (c) over the period to 2008, Ms Marr was paying money, in particular, off Home Loan 2.491 488 Transcript 24.2.26, pages 1232 - 1233 (Scott). 489 Transcript 17.2.26, page 439 (Marr). 490 Transcript 17.2.26, page 439 (Marr). 491 Transcript 17.2.26, page 487 (Marr). -- 193 of 253 -- [2026] WASC 301 GETHING J Page 194 614 As part of the pre-trial processes, Ms Marr filed a document in which she set out which amounts which she attributed to her and which she attributed to Mr Scott (Marr Transaction Analysis).492 615 In cross-examination, Ms Marr was taken through a number of transactions in the Streamline 1 Analysis which differed from the Marr Transaction Analysis. She disputed a number of transactions:493 (a) on 11 December 1998, there was a deposit of $900, which Mr Scott says was $450 each, but Ms Marr says was entirely from her; (b) on 10 September 1999, there was a deposit of $800, which Mr Scott said was $400 each, but Ms Marr says was entirely from her; (c) on 11 October 1999, there was a deposit of $800, which Mr Scott was $400 each, but Ms Marr said was entirely from her; (d) on 11 November 1999, there was a deposit of $800, which Mr Scott says included $200 from him, by Ms Marr said was entirely from her; (e) on 14 December 1999, there was a deposit of $860, which Mr Scott said included $430 from him, but Ms Marr said was entirely hers; (f) on 13 March 2000, there was a deposit of $900, which Ms Marr notes as being 'probably by Phil', but which Mr Scott says was $450 each; (g) on 22 January 2001, there was a deposit of $1,900 which Ms Marr says is all hers, but which Mr Scott says was him (though Mr Scott was not able to identify an entry from his bank records to support the transaction);494 (h) on 31 January 2001, there was a deposit of $450, which Ms Marr says is hers, but which Mr Scott says was him; and (i) on July 2001, there was a deposit of $1,100, which Ms Marr claimed, but agreed it could be from Mr Scott. 492 Exhibit 5. 493 Transcript 19.2.26, pages 799 - 809 (Marr). 494 Transcript 24.02.26, pages 1237 - 1241 (Scott). -- 194 of 253 -- [2026] WASC 301 GETHING J Page 195 616 In Closing Submissions, Ms Marr was critical of Mr Scott accounting in relation to the use of his CBA Visa to pay both personal expenses and expenses relating to Links Road.495 14.3 Determination 617 In my assessment, Mr Scott's analysis is comprehensive and accurately summarises and brings to account the source documents. It is more likely than not that the contributions made by each party were as summarised by Mr Scott. For all but one of the disputed transactions, Mr Scott was able to identify a source document in his own bank accounts which supported the conclusion reached. Ms Marr was not able to do so. For this reason, I prefer Mr Scott's evidence in relation to the disputed transactions and find in his favour. 618 One matter did arise in the course of Mr Scott's cross-examination. As set out at [297] an amount of $1,500 was characterised as rent from Mr Brown whereas it should have been a contribution from Ms Marr. This amount needs to be added to the amount for Streamline 1 identified by Mr Scott to give $18,688.05 ($17,188.05 + $1,500). 619 Mr Marr was critical of Mr Scott's practice of taking money out of Streamline 1 and Streamline 2 for personal purposes.496 I observe that Ms Marr did the same on occasion. Whilst the intermixing of personal funds and funds relation to the common business venture is not desirable, I accept that this was done because of Mr Scott's strained financial position at times. The important point is that in the analysis which Mr Scott has presented to this court, he has (and in my view accurately) accounted for the funds he withdrew from Streamline 1 and Streamline 2 for personal purposes. I also accept the accuracy of Mr Scott's accounting for his use of his CBA Visa, and that the amounts claimed relate only to Links Road. 620 In summary, I find that (rounded to the nearest dollar): (a) Ms Marr made net contributions through Streamline 1 of $18,688; (b) Mr Scott made net contributions through to Streamline 1 of $90,656; (c) Ms Marr made no net contributions through Streamline 2; 495 See generally: Closing Submissions, Schedule. 496 See generally: Closing Submissions, Schedule. -- 195 of 253 -- [2026] WASC 301 GETHING J Page 196 (d) Mr Scott made net contributions through Streamline 2 of $74,267; (e) Mr Scott made net contributions through his visa account of $54,342; and (f) Mr Scott made a further contribution of $1,515 by reason of the money paid out of the Scott & Associates cheque account. 15. How should the mortgages be accounted for? 15.1 Mr Scott's evidence in chief and final position 621 Most of the statements for Home Loan 1 for the period from 11 November 1998 to 14 June 2023 are in evidence.497 The opening balance was $136,000. The amount paid out to close this account as part of the sale of Links Road on 9 June 2023 was $38,179.98. 622 Mr Scott prepared a very detailed analysis for the statements for Home Loan 1.498 For three months where there was no statement, he interpolated the figures based on patterns in the months before and after and information from the other accounts. Every payment and receipt is itemised, along with the statement in which it appears and the date. 623 Mr Scott also prepared and tendered an analysis of the payments from Streamline 1 into Home Loan 1 and Home Loan 2499 and an analysis of the payments from Streamline 2 into Home Loan 1 and Home Loan 2.500 In both documents, each transaction is itemised by date and amount. 624 In summary, his analysis for Home Loan 1 was: Initial drawdown $136,000.00 Add Withdrawals $155,235.32 Interest $153,001.95 Bank fees $2,224.26 Federal Institution Duty $9.11 Sub total $291,235.32 Less Deposits $253,055.43 497 See generally PTB A. 498 Exhibit 20. See generally, Transcript 24.2.26, pages 1219 ff (Scott). 499 Exhibit 22. See generally, Transcript 24.2.26, pages 1224 ff (Scott). 500 Exhibit 23. See generally, Transcript 24.2.26, pages 1225 ff (Scott). -- 196 of 253 -- [2026] WASC 301 GETHING J Page 197 Mortgage payment - Streamline 1 $106,472.74 Mortgage payment - Streamline 2 $135,891 Additional deposit - D Marr $7,963.96 Additional deposit - P Scott $2,727.64 Settlement payout $38,179.98 Balance $(0.09) 625 The fact that Mr Scott was able to reconcile 25 years' worth of bank statements to within 9 cents gives me a high measure of confidence as to its accuracy, especially with some missing statements. 626 In the Defence Closing Submissions, Mr Scott adjusts these figures to reflect the evidence at trial:501 C4) Home Loan 1 - Direct payment Contributions by Owners Contribution by direct payment into Home Loan 1 DM PS 11 Oct 10 PS Repayment/payment Netbank $4,500.00 15 May 01 PS direct payment of arrears (cheque) deposit slip/letter on file 801.64 7 Sep 01 PS direct payment of arrears (cheque) letter on file 1,900.00 27 Aug 21 PS Repayment/Payment Cheque (insurance refund) 50% 26.00 12 Oct 10 DM Repayment/Payment Netbank $3,000.00 10 Aug 20 Direct deposit by DM 321.00 15 Aug 20 Direct deposit by DM 116.96 27 Aug 21 Repayment/Payment Cheque (insurance refund) 26.00 $3,463.96 $7,227.64 627 In both the table above and the table in [624], the aggregate direct contributions of the parties is $10,961.60; all that has changed is the allocation of payments. 501 Defence Closing Submissions, Annexure B, Part C, item C4. -- 197 of 253 -- [2026] WASC 301 GETHING J Page 198 628 There is in evidence a complete set of the statements for Home Loan 2 for the period from 27 May 2002 to 1 September 2020 when it was paid out.502 629 Mr Scott also prepared a detailed analysis of the statements for Home Loan 2.503 Again, every payment and receipt is itemised, along with the statement in which it appears and the date. 630 In summary, his analysis for Home Loan 2 was: Initial drawdown $36,000.00 Add Withdrawals $31,909.04 Interest $30,157.04 Bank fees $1,752.00 Sub total $67,909.04 Less Deposits $67,909.04 Mortgage payment - Streamline 1 $21,828.00 Mortgage payment - Streamline 2 $33,921.04 Additional deposit - D Marr $12,160.00 Additional deposit - P Scott $0.00 Balance $0.00 631 Again, the fact that Mr Scott was able to reconcile 18 years' worth of bank statements to zero out gives me a high measure of confidence as to its accuracy. 632 The analysis in [630] was confirmed in the Defence Closing Submissions.504 15.2 Cross-examination 633 Aside from the circumstances in which Home Loan 2 was entered into (which I have dealt with in section 7.4), the only other issue in relation to the mortgages was an event which occurred in mid-2010. The following entries appear in the bank statement for Home Loan 1 on 29 June 2010:505 502 PTB B. 503 Exhibit 21. See generally: Transcript 24.2.26, pages 1222 ff. 504 Defence Closing Submissions, Annexure B, Part C, item C5. 505 PTB A, page 75. -- 198 of 253 -- [2026] WASC 301 GETHING J Page 199 29 Jun We confirm the following changed to your repayment arrangements: Your direct debit has been cancelled. Please ensure you meet your repayment obligations by the monthly due date. 29 Jun We confirm the following changed to your repayment arrangements: Your elected Direct Debit Repayment Amount: $1110.00 per month commencing 11/07/2010. 29 Jun We confirm the following changed to your repayment arrangements: Your elected Direct Debit Repayment Amount: $1110.00 per month commencing 11/07/2010 will be debited from your account number XXXX XXXX. 29 Jun We confirm the following changed to your repayment arrangements: Your direct debit has been cancelled. Please ensure you meet your repayment obligations by the monthly due date. 634 Mr Scott said he had no idea what these entries were about.506 The effect of what was done was that no amount was paid off Home Loan 1 from this date to mid-October 2010.507 Mr Scott said that he received no notification from the bank that there was a problem.508 635 On 11 October 2010 $4,500 was paid in and on 12 October 2010 $3,000 was paid in.509 Mr Scott allocated both to Ms Marr.510 Ms Marr put to Mr Scott in cross-examination that he in fact paid the $4,500 and she paid the $3,000, which he accepted. Mr Scott made this adjustment in his final figures. 15.3 Determination 636 Nothing in the cross-examination of Mr Scott causes me to have any doubts as to the accuracy of the analysis which he undertook and which I have set out in section 15.1. 637 At [547], I concluded that money paid under a joint mortgage can be brought to account in the distribution process. Where the parties are jointly and severally liable, the appropriate basis is that they each contribute equally to the repayment of joint debt. This would be the position if, independently of the partition claim, one had sued the other relying on the doctrine of equitable contribution.511 The doctrine of 506 Transcript 17.6.25, pages 1436 - 1443 (Scott). 507 See Exhibit 20, page 11. 508 Transcript 17.6.25, page 1445 (Scott). 509 See Exhibit 20, page 11. 510 Exhibit 20, page 21; Transcript 24.2.26, pages 1221 - 1222. 511 Ventia Utility Services Pty Ltd (ACN 010 725 247) (formerly known as Thiess Services Limited) v Electricity Networks Corporation T/as Western Power [No 3] [2024] WASC 179 [39], [182] (Archer J). -- 199 of 253 -- [2026] WASC 301 GETHING J Page 200 equitable contribution is an equally appropriate analogical basis to exercise the power to distribute in PLA s 126(1). I add that my finding in section 9.7 means that there is no contractual basis to depart from an approach in which each party is required to contribute equally to the joint debt. 638 The result is that (rounded to the nearest dollar): (a) the total mortgage repayments made on Home Loan 1 was $242,364 ($106,472.74 + $135,891); (b) the total mortgage repayments made on Home Loan 2 were $55,749 ($21,828.00 + $33,921.04); (c) each of Ms Marr and Mr Scott is liable for half of the total amounts paid; (d) Ms Marr made direct contributions to Home Loan 1 of $3,464; (e) Ms Marr made direct contributions to Home 2 of $12,160; (f) Mr Scott made direct contributions to Home Loan 1 of $7,228; and (g) Mr Scott made no direct contributions to Home Loan 2. 16. What other expenses are claimed in relation to Links Road? 16.1 Ms Marr's position 639 The only expenses which Ms Marr incurred which she claims should be brought to account from the proceeds of the sale of Links Road are the expenses in relation to the Vandalism. I have dealt with these in sections 6.2 and 9.7. 16.2 Mr Scott's position and evidence 640 Mr Scott denies that Ms Marr made any later contributions towards the parties' ownership of Links Road. Specifically, he says that Ms Marr:512 512 Defence, par 10. -- 200 of 253 -- [2026] WASC 301 GETHING J Page 201 (a) made no payments to repay the mortgage since settlement on 12 November 1998, other than payments made by deposit of rent from tenants which were paid to the mortgage; and (b) made no payments to pay land tax, shire rates, water rates and building insurance since settlement 12 November 1998. 641 Mr Scott says that he has paid his contribution and Ms Marr's contribution either in full or to the extent the rent payments did not cover payments to the mortgage, land tax, shire rates, water rates and building insurance since settlement on 12 November 1998.513 642 Mr Scott reiterates that the parties held Links Road as tenants in common in equal shares, and calls for an accounting of the amounts paid and received in relation to the property.514 643 In the counterclaim, Mr Scott reiterates that he and Ms Marr are tenants in common in equal shares. Mr Scott pleads that he has contributed a greater amount to the retention and preservation of Links Road than Ms Marr. He says that he has paid his contribution and Ms Marr's contribution either in full or to the extent the rent payments did not cover payments to the mortgage, land tax, shire rates, water rates and building insurance since the settlement on 12 November 1998.515 644 Mr Scott seeks an account on a common basis.516 He then seeks an order that Ms Marr pay to him a sum equivalent to one-half of the sum of the greater expenditure outlaid as determined by the account, together with interest as and from the dates such account determines the greater expenditure was outlaid by him. 645 Mr Scott tendered a document headed 'Summary of Expenditures'.517 He gave evidence that he went through four sources to identify all the amounts which he says he paid for expenses relating to Links Road, being:518 (a) Streamline 1; (b) Streamline 2; 513 Defence, par 10.3 514 Defence, pars 10.5, 16 - 20. 515 Defence, pars 17 - 20. 516 Defence, par 21. 517 Exhibit 18. 518 See generally: Transcript 23.2.26, pages 1167 ff, pages 1213 ff. -- 201 of 253 -- [2026] WASC 301 GETHING J Page 202 (c) his CBA Visa; and (d) in some instances, the Scott & Associates cheque account. As mentioned, there is an almost complete set of the bank accounts for Streamline 1519 and Streamline 2.520 There is also an almost complete set of the accounts for the CBA Visa.521 Each of the individual payments is set out in the Summary of Expenditures, along with its source. He also tendered the source invoices where available.522 646 Mr Scott also gave evidence that each of the expenses in the Summary of Expenditures was actually incurred and was incurred in relation to Links Road and not any other property.523 He went through a sample of the invoices and primary material used to prepare the Summary of Expenditures.524 647 Mr Scott then categorised the payments as follows: Category Amount House insurance $ 9,832.50 Water Corporation $23,363.51 Land tax $ 4,935.40 Melville City Council $30,989.90 Repairs and general charges $32,265.90 Total $101,387.24 648 Within each expense type, the individual amount and date is itemised, along with the where the payment was made from. 649 Counsel for Mr Scott confirmed these amounts in closing submissions.525 650 Mr Scott gave evidence that he paid some of the initial expenses from the Scott & Associates cheque account. These are set out in the Summary of Expenditures as follows:526 Date Item Amount 12 Nov 99 Sesco Security - 1 Links Road $440.35 519 PTB C. 520 PTB D. 521 DTB 2. 522 DTB 3; exhibit 19. 523 Transcript 24.2.26, page 1215. 524 Transcript 24.2.26, pages 1216 ff. 525 Defendant’s Closing Submissions, Annexure B. 526 Exhibit 18 pages 2 and 8. -- 202 of 253 -- [2026] WASC 301 GETHING J Page 203 28 Mar 01 MCC - Home occupation application - 1 Links Road $150.00 30 May 01 Sesco Security - Oct - Dec 2000, Jan - Mar 2001 - Links Road, Ardross $200.20 30 Jun 01 Sesco Monitoring - 1/4/01 - 30/6/01 Invoice 380060 1 links Rd, Ardross $100.10 20 Sep 01 Sesco Monitoring - 1/4/01 - 30/6/01 Invoice 380060 1 links Rd, Ardross $100.10 18 Oct 01 Wesfarmers Federation Insurance - 1 Links Rd $224.00 27 Nov 01 Sesco Monitoring - 1/107/01 - 31/12/01 Invoice 42553 1 Links Road, Ardross $100.10 8 Feb 02 Sesco Security Monitoring - 1 Links Road (1/1/02 - 31/3/02) Inv. 1461/44484 $100.10 7 May 02 Sesco Security - 1 Links Rd - 1/4/02 - 30/6/02. Invoice No.46596 $100.10 651 These amounts total $1,515.05. They are characterised as 'Repairs and General Charges'. However, they are not included in the amount set out for this category in [647]. Rather, they are brought to account as a contribution ([612]). 652 I have reviewed the Summary of Expenditures and am satisfied that it accurately correlates to, and summarises, the relevant source material. As a general finding, I find that Mr Scott incurred each of the expenses set out in the Summary of Expenditure on the dates and in the amounts particularised. However, there were some individual expenses or categories of expense which Ms Marr challenged which I need to consider in detail. 16.3 Expenses that are in issue 653 Ms Marr challenges a number of the expenses incurred on three bases: (a) the expense did not relate to Links Road; (b) the expense is not one properly able to be claimed by a co- owner as an ownership expense; or (c) the expense is one which would not have been incurred had Links Road been let commercially. It is convenient to deal with the challenges under these headings. -- 203 of 253 -- [2026] WASC 301 GETHING J Page 204 Expenses that did not relate to Links Road 654 Ms Marr challenged an invoice from Drago Dadich for $345 for 'Stitching and Repointing Brickwork'.527 The invoice on its face is expressed to be for work done at '1 Links Road Booragoon'. The date is the issue. It is written '3rd October 2001' with the second zero having a line through it, making the date '3rd October 2011'. Mr Scott claims in this amount in the Schedule of Expenses, but does not record the date.528 Mr Scott said he did not change the date from a '0' to a '1'. Ms Marr suggested that the invoice was for work done in October 2001. Mr Scott thought that might have been the case. He denied that the invoice was for work done at the Beaconsfield Property (that is, Central Avenue).529 However, the issue of dates does not matter as I am satisfied that the work was done at Links Road and that it has only been claimed once. 655 Ms Marr challenged a series of invoices which Mr Scott claimed over October and November 2002 by Mr Dadich, his sons Adrian and Reece and his nephew Joshua Harris. These are set out in the Summary of Expenditures as follows:530 Date Item Amount 14-Oct-02 000011 - Drago Dadich 30.5 Hours 1/10 - 4/10 $605.07 09-Oct-02 000012 - Reece Scott 14 Hours 1/10 - 4/10 $105.00 14-Oct-02 000013 - Adrian Scott 20.5 Hours 1/10 - 4/10 $153.75 14-Oct-02 000014 - Adrian Scott 26.5 Hours 7/10 - 13/10 $198.75 15-Oct-02 000015 - Reece Scott 32.5 Hours 7/10 - 13/10 $243.75 16-Oct-02 000016 - Drago Dadich 53 Hours 7/10 - 13/10 $954.00 21-Oct-02 000018 - Joshua Harris 16 Hours 15/10 - 21/10 $120.00 29-Oct-02 000019 - Joshua Harris 16 Hours 22/10 $120.00 29-Oct-02 000020 - Joshua Harris 16 Hours 28/10 $120.00 29-Oct-02 000021 - Drago Dadich 41 Hours 14/10 - 3/11 $738.00 527 DTB3, page 236. 528 Exhibit 18, page 9. 529 Transcript 17.6.26, pages 1373 - 1389 (Scott). 530 Exhibit 18, page 8. -- 204 of 253 -- [2026] WASC 301 GETHING J Page 205 7-Nov-02 0000230 - Drago Dadich 13 Hours 4/11 - 5/11 $234.00 These amounts are included in the category of 'Repairs and general charges'. 656 Ms Marr suggested that only 30 hours of work was done at Links Road and the rest was done at Central Avenue. Mr Scott disagreed, saying:531 That entire time there, basically, Drago Dadich and the labourers I was able to obtain from him to work with him on their school holidays, if you like, sanded back all the doors and painted them, all the internal woodwork, and sanded and filled and painted the external woodwork. Mr Scott said that Ms Marr was not present when this work was done.532 657 Ms Marr did not adduce any evidence to the effect that the work being claimed was done at Central Avenue. Mr Scott's evidence that work was being done at Links Road is supported by his letter dated 23 October 2022 to WFI which I have quoted at [278]. I accept Mr Scott's evidence and find that the work claimed was done at Links Road. 658 Ms Marr challenged an amount of $440 incurred on 21 June 2002 with the description: 'G.Balt - Bobcat Man'.533 Mr Scott said that was for clearing out the backyard at Links Road. He denied the suggestion that it was done at Central Avenue.534 Ms Marr did not adduce any evidence to the effect that the work being claimed for was done at Central Avenue. I accept Mr Scott's evidence and find that the work claimed was done at Links Road. 659 Ms Marr challenged two payments to the Water Corporation on 24 October 2002, one for $340.80 and one for $548.95. Mr Scott referred to the due dates on the invoices which showed that one was due on 4 November 2003 and other on 31 July 2003.535 They were both 531 Transcript 17.6.26, page 1403; also pages 1404 - 1410 (Scott). 532 Transcript 17.6.26, page 1405 (Scott). 533 Exhibit 18, page 8. 534 Transcript 17.6.26, pages 1410 - 1411 (Scott). 535 DTB 3, page 698, 702. -- 205 of 253 -- [2026] WASC 301 GETHING J Page 206 for Links Road. He paid them both at the same time.536 I accept this explanation. Expenses not able to be claimed by a co-owner as an ownership expense 660 As set out at [650], Mr Scott claimed for a security system at Links Roads then for monitoring over several years. Mr Scott gave evidence that after the Vandalism, kids were still trying to break into the house, so there was a need to install and maintain a security system.537 Ms Marr contended that they were a tenant cost. Given that Ms Marr was occupying Links Road for much of this initial period and the impact on them both of the Vandalism, I regard the security expenses as an ownership expense for the period in which it is being claimed. 661 Mr Scott claimed the following amounts in 2002 for Western Power: 9 October 2002 Western Power $26.70 17 December 2002 Western Power $31.00 Total $57.70 Ms Marr contended that these were occupation expenses not ownership expenses. Mr Scott accepted this.538 662 Mr Scott claims for amounts paid to the Water Corporation. Ms Marr accepts that amounts paid for water rates are ownership expenses, but says that amounts paid for water usage are not. She says that, even in a residential tenancy, water usages charges are ordinarily the responsibility of the tenant. 663 Mr Scott's evidence is that none of the tenants which either Ms Marr or he arranged were required to pay for their water usage.539 I accept this evidence. Both of them appeared to have proceeded on the basis that water usage was to be paid as an ownership expense. These expenses are properly able to be brought to account by Mr Scott. This is subject to the next section. 536 Transcript 17.6.26, pages 1453 - 1455 (Scott). 537 Transcript 17.6.26 pages 1390 - 1391 (Scott). 538 Transcript 19.6.26, pages 1538, 1730 (Scott). 539 Transcript 17.6.26, page 1457 (Scott). -- 206 of 253 -- [2026] WASC 301 GETHING J Page 207 Expenses which would not have been incurred had Links Road been let commercially 664 Ms Marr's position is that Mr Scott was required to lease Links Road to a commercial tenant. Had he done so, the commercial tenant would have been responsible for water rates and charges, insurance, council rates and land tax. 665 In Part 18, I find that Mr Scott owed fiduciary duties to Ms Marr which, in the circumstances of this case, required him to lease Links Road commercially, though only from 9 October 2014. I deal return to the issue of these outgoings in this context in section 18.7. 16.3 Determination 666 I find that Mr Scott paid the following expenses in relation to Links Road, categorised as follows: Category Amount claimed Amount disallowed Amount able to be claimed House insurance $9,832.50 $0 $9,832.50 Water Corporation $23,363.51 $0 $23,363.51 Land tax $4,935.40 $0 $ 4,935.40 Melville City Council $30,989.90 $0 $30,989.90 Repairs and general charges $32,265.90 $57.70 $32,208.20 667 Each category of expense is an expense that may properly be claimed by a co-owner as a Preservation Expense. As I have mentioned at several points ([309] - [312], [335]), Links Road required a significant amount of work to both rectify the Vandalism and bring it up to a standard that meant it could be let on the open market. Hence, I view the repairs and maintenance undertaken by Mr Scott to be in the nature of what I have termed Preservation Expenses properly paid by the owners as opposed to the sort of repair costs ordinarily incurred by a tenant. Further, given the dilapidated state of Links Road for most of the time it was owned by the Parties, many of the maintenance and repair expenses claimed by Mr Scott could also readily be characterised as Improvement Expenses. He is entitled to claim these expenses at cost. I note that he does not make any claim for a greater than 50% -- 207 of 253 -- [2026] WASC 301 GETHING J Page 208 beneficial interest in Links Road as a result of the work he undertook or arranged for Kevin to undertake.540 17. Does Mr Scott owe any fiduciary obligations to Ms Marr? 17.1 Ms Marr's position 668 Ms Marr makes a further, or alternate, claim that the terms of the Joint Endeavour constituted fiduciary obligations mutually owed by the parties to each other.541 By the failure or refusal of Mr Scott to obtain rent from tenants of Links Road at fair market rates, he is said to have breached the fiduciary obligations he owed to her.542 This has two components. The first is the difference between the rent actually received and the fair market rent for a residential property. The second is 'the loss or reduction of value of the Property because it was not rezoned and rented out as a commercial property'.543 669 Ms Marr then goes on to plead that the breach entitles her to equitable compensation to restore her position to that which would have accrued if Mr Scott had not breached his fiduciary obligations. The measure claimed is:544 (i) The payment of monies sufficient to compensate the plaintiff's loss resulting from the said breaches of fiduciary duty; or (ii) Alternatively, ordering the recoupment of rent that was retained by the defendant in excess of his proportionate liability to distribute to the plaintiff as a joint owner of the Property, with compound interest to compensate for the ongoing loss of use of the said monies (that would otherwise have been productive of alternative financial benefit to her). 670 In the Claim, Ms Marr then seeks an order for an account in relation to the claims she has made. She also raises issues about the inadequacy of the documents provided by Mr Marr. She seeks an account on a 'wilful default' basis.545 540 Defence Closing Submissions [79]. 541 Claim, par 45. 542 Claim, par 45. 543 Claim, par 32. 544 Claim, pars 44 to 46. 545 Claim, pars 32 to 43. -- 208 of 253 -- [2026] WASC 301 GETHING J Page 209 17.2 Mr Scott's position 671 Mr Scott denies that he owes any fiduciary duty. He says that as he and Ms Marr as are co-owners of Links Road, he is only liable to account for the monies he actually received either as a bailiff for Ms Marr or under the Statute of Anne for Ms Marr's 50% entitlement.546 I have dealt with this issue in Part 12. 672 Mr Scott denies that Ms Marr is entitled to equitable compensation and reiterates that they are co-owners.547 673 Mr Scott further pleads that even if there are fiduciary duties and/or equitable Ms Marr is entitled to compensation, the claims are equitable claims and are statute barred pursuant to Limitation Act 2005 (WA) s 13, s 26 and s 27.548 17.3 Relevant law 674 There are a number of types of relationship which are accepted to be fiduciary relationships without further inquiry as to the specific circumstances of the case. The classic description of this class is by Mason J Hospital Products Ltd v United States Surgical Corporation:549 The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations…trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a position. The expressions "for", "on behalf of', and "in the interests of' signify that the fiduciary acts in a "representative" character in the exercise of his responsibility…. It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed… Thus a mere sub contractor is not a fiduciary. Although his work may be described loosely as work which is to be carried out in the interests of the head contractor, the sub- 546 Defence, par 14.3. 547 Defence, par 14.4. 548 Defence, par 14.5. 549 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96 - 97 (Mason J) (references omitted) (Hospital Products). -- 209 of 253 -- [2026] WASC 301 GETHING J Page 210 contractor cannot in any meaningful sense be said to exercise a power or discretion which places the head contractor in a position of vulnerability. 675 And:550 The classical illustrations of the fiduciary relationship are those in which the fiduciary is under a duty to act not in his own interests or solely in his own interests but in the interests of another or jointly in the interests of another and himself, e.g., a trustee and a partner. 676 However, as Mason J points out, the categories of fiduciary relationship are not closed.551 Whether a relationship not falling within an established category is characterised as a fiduciary relationship is a question of fact in the particular circumstances of the case.552 677 A contractual relationship may also be a fiduciary one. Again, in the words of Mason J in Hospital Products:553 That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction. 678 A commercial relationship may also be a fiduciary relationship:554 But it is altogether too simplistic, if not superficial, to suggest that commercial transactions stand outside the fiduciary regime as though in some way commercial transactions do not lend themselves to the creation of a relationship in which one person comes under an obligation to act in the interests of another. The fact that in the great majority of commercial transactions the parties stand at arm's length 550 Hospital Products 99. 551 Hospital Products 96. 552 Hospital Products 100. 553 Hospital Products 97. See also: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 [91] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) (John Alexander); Dalecoast Pty Ltd v Guardian International Pty Ltd [2003] WASCA 142 [71] (Murray J, with whom Wallwork J and Anderson JJ agreed); Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 26] [2026] WASC 101 [1557] (Smith J) (Wright Prospecting); Duckworth atf The Ocean Farm Trust v Water Corporation [2024] WASC 90 [56] (Howard J); Lamers as trustee for Ben and Debra Lamers Family Trust v Arvind Pty Ltd [No 3] [2023] WASC 30 [722] (Hill J). 554 Hospital Products 100. -- 210 of 253 -- [2026] WASC 301 GETHING J Page 211 does not enable us to make a generalization that is universally true in relation to every commercial transaction. In truth, every such transaction must be examined on its merits with a view to ascertaining whether it manifests the characteristics of a fiduciary relationship. 679 And it may not. As the High Court observed in John Alexander:555 [T]he reason why commercial transactions falling outside the accepted traditional categories of fiduciary relationship often do not give rise to fiduciary duties is not that they are 'commercial' in nature, but that they do not meet the criteria for characterisation as fiduciary in nature. 680 As to when a relationship may be characterised as fiduciary, Mason J stated that an obligation to act in the interests of another is the 'foundation of the fiduciary relationship'. Specifically:556 But entitlement to act in one's own interests is not an answer to the existence of a fiduciary relationship, if there be an obligation to act in the interests of another. It is that obligation which is the foundation of the fiduciary relationship, even if it be subject to qualifications including the qualification that in some respects the fiduciary is entitled to act by reference to his own interests. The fiduciary duty must then accommodate itself to the relationship between the parties created by their contractual arrangements. And entitlement under the contract to act in a relevant matter solely by reference to one's own interests will constitute an answer to an alleged breach of the fiduciary duty. The difficulty of deciding under the contract when the fiduciary is entitled to act in his own interests is not in itself a reason for rejecting the existence of a fiduciary relationship, though it may be an element in arriving at the conclusion that the person asserting the relationship has not established that there is any obligation to act in the interests of another. 681 The position is summarised by Pritchard J in Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah in the following terms:557 A fiduciary relationship between two parties is usually identified as one which is characterised by a duty, and corresponding expectation, of loyalty from one party (the fiduciary) towards the other (the beneficiary). Fiduciary obligations have been held to arise in the context of certain relationships, such as between partners, solicitor and 555 John Alexander [90]; Duckworth [55]. 556 Hospital Products 99. 557 Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah [2016] WASC 380 [100] - [101] (Pritchard J) (citations omitted); Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 26] [2026] WASC 101 [1557] (Smith J) (Wright Prospecting). -- 211 of 253 -- [2026] WASC 301 GETHING J Page 212 client, principal and agent, director and company, and employer and employee. Outside those well-established categories, determining whether fiduciary obligations arise will depend on the identification of criteria indicative of the existence of a fiduciary relationship. The law on fiduciary duties in Australia is not yet settled and there is not a precise or comprehensive set of circumstances or criteria by reference to which fiduciary obligations will be imposed. The circumstances which may point towards a fiduciary relationship include the existence of a relationship of confidence, inequality of bargaining power, the scope for one party unilaterally to exercise a discretion or power which may affect the rights or interests of the other, and a dependence or vulnerability on the part of one party that causes that party to rely on another. None of these circumstances or criteria is individually determinative of the existence of a fiduciary duty. However, one critical feature which must be present is that the fiduciary undertakes or agrees to act for, or on behalf of, another person, in the interests of that other person, in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense, and to the exclusion of the fiduciary's own interest. 682 This passage was quoted with approval by Smith J in Wright Prospecting.558 Relevantly for present purposes, her Honour went on to observe that:559 A fiduciary duty may also arise where parties join in a common business enterprise where the relationship between them is one of mutual trust and confidence; in that event, all parties must seek to realise for the advantage of each participant all the assets committed to the joint venture. 683 Her Honour cited the decisions of Gummow ACJ, Hayne and Callinan JJ in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd.560 Each of their Honours in turn referred to the decision of Mason, Brennan and Dawson JJ in United Dominions Corporation Ltd v Brian Pty Ltd,561 so it is convenient to begin with that decision. 684 In United Dominions the parties to a joint venture agreement to develop land were held to be in a fiduciary relationship. The parties 558 Wright Prospecting [1557]. 559 Wright Prospecting [1562]. 560 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [15] (Gummow ACJ): [124] (Hayne J); [156] (Callinan J) (Concrete HCA). 561 United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1, 10 - 12 (Mason, Brennan and Dawson JJ, with whom Gibbs CJ and Dawson J agreed generally) (United Dominions). -- 212 of 253 -- [2026] WASC 301 GETHING J Page 213 were at arms-length and the endeavour purely commercial. The plurality made some observations as to when a fiduciary relationship will exist in a joint venture situation (my emphasis):562 The term "joint venture" is not a technical one with a settled common law meaning. As a matter of ordinary language, it connotes an association of persons for the purposes of a particular trading, commercial, mining or other financial undertaking or endeavour with a view to mutual profit, with each participant usually (but not necessarily) contributing money, property or skill. Such a joint venture (or, under Scots' law, "adventure") will often be a partnership. The term is, however, apposite to refer to a joint undertaking or activity carried out through a medium other than a partnership: such as a company, a trust, an agency or joint ownership. The borderline between what can properly be described as a "joint venture" and what should more properly be seen as no more than a simple contractual relationship may on occasion be blurred. Thus, where one party contributes only money or other property, it may sometimes be difficult to determine whether a relationship is a joint venture in which both parties are entitled to a share of profits or a simple contract of loan or a lease under which the interest or rent payable to the party providing the money or property is determined by reference to the profits made by the other. One would need a more confined and precise notion of what constitutes a "joint venture" than that which the term bears as a matter of ordinary language before it could be said by way of general proposition that the relationship between joint venturers is necessarily a fiduciary one… The most that can be said is that whether or not the relationship between joint venturers is fiduciary will depend upon the form which the particular joint venture takes and upon the content of the obligations which the parties to it have undertaken. If the joint venture takes the form of a partnership, the fact that it is confined to one joint undertaking as distinct from being a continuing relationship will not prevent the relationship between the joint venturers from being a fiduciary one. In such a case, the joint venturers will be under fiduciary duties to one another, including fiduciary duties in relation to property the subject of the joint venture, which are the ordinary incidents of the partnership relationship, though those fiduciary duties will be moulded to the character of the particular relationship … In the present case, it is apparent that the relationship between the participants in the shopping centre venture was a fiduciary one at least from the time when the formal agreement was executed. Under the agreement, the participants were joint venturers in a commercial enterprise with a view to profit. Profits were to be shared. The joint venture property was held upon trust … 562 United Dominions 10 - 11. -- 213 of 253 -- [2026] WASC 301 GETHING J Page 214 685 Their Honours went on to hold that the relationship between the participants under the agreement exhibited all the indicia of, and plainly was, a partnership. The appellant asserted that the no fiduciary relationship existed, and no fiduciary duties arose, until the joint venture agreement was executed. Their Honours disagreed:563 To the extent that that submission involves a general legal proposition that the relationship between prospective partners or joint venturers cannot be a fiduciary one until a formal agreement is executed, it is clearly wrong. A fiduciary relationship can arise and fiduciary duties can exist between parties who have not reached, and who may never reach, agreement upon the consensual terms which are to govern the arrangement between them. In particular, a fiduciary relationship with attendant fiduciary obligations may, and ordinarily will, exist between prospective partners who have embarked upon the conduct of the partnership business or venture before the precise terms of any partnership agreement have been settled. Indeed, in such circumstances, the mutual confidence and trust which underlie most consensual fiduciary relationships are likely to be more readily apparent than in the case where mutual rights and obligations have been expressly defined in some formal agreement. Likewise, the relationship between prospective partners or participants in a proposed partnership to carry out a single joint undertaking or endeavour will ordinarily be fiduciary if the prospective partners have reached an informal arrangement to assume such a relationship and have proceeded to take steps involved in its establishment or implementation. 686 In Concrete HCA, two companies, Landmark Building Developments Pty Ltd (Landmark) and Toyama Pty Ltd (Toyama), formed a joint venture to purchase and develop land, together with a third company, Parramatta Design & Developments Pty Ltd (Parramatta), which provided architectural services. The principal of Parramatta, a Mr Fares, was also a principal of Landmark. Units were to be constructed and sold for profit. There was no written agreement recording the terms of the joint venture. There was no express agreement about what would happen if the object of the joint venture was not achieved. It was agreed that Mr Fares and/or Parramatta would provide architectural services for the joint venture by preparing plans and drawings for the units. Parramatta was paid for one set of plans. The joint venturers agreed that Mr Fares and/or Parramatta would prepare a further set of plans without charge. The second set was prepared and made available to the other joint venturers for the purpose, amongst others, of obtaining development consent. Consent was granted by the relevant council. Parramatta did not convey title to 563 United Dominions 11 - 12. -- 214 of 253 -- [2026] WASC 301 GETHING J Page 215 its copyright in the plans to any of the others. The joint venturers fell out, the development did not proceed and court-ordered trustees sold the land to another company, Concrete Pty Ltd (Concrete). Concrete wished to construct a unit development on the land in accordance with the development consent and to reproduce the plans. Parramatta and Mr Fares refused permission for Concrete to use the plans. Concrete commenced proceedings under Copyright Act 1968 (Cth) (CA) s 202 alleging that Parramatta and Mr Fares had threatened copyright infringement proceedings against it without justification. Parramatta cross claimed alleging infringement against Concrete, essentially because no payment had been made for the preparation of the drawings. Parramatta and Mr Fares did not allege that there was an implied licence in favour of the joint venturers, which they had revoked on the basis of non-payment of any fee. They contended that there had never been such an implied licence because their provision of the plans without fee was conditional on Parramatta's building the units on a cost-plus basis. 687 The High Court held that in the circumstances of the case Paramatta and Mr Fares had impliedly consented to the use of the plans for the purposes of the joint venture. The plans were to be used by the landowners to develop the site from the stage of obtaining development consent through to achieving profits by the sale of units built in accordance with the consent. The purposes of the joint venture must include the sale of the land with the benefit of the consent before completion of the development. The landowners who sold the land to Concrete with the benefit of the development consent passed the benefit of Paramatta and Mr Fare's implied consent to the use of the plans to Concrete, as it was within the ambit of the implied consent which the landowners had received from them. Paramatta and Mr Fares were not entitled to deny consent to the use of the plans by Concrete to pursue interests in conflict with the purposes of the joint venture. Accordingly, Paramatta and Mr Fare's threats of copyright infringement were unjustified and Paramatta's infringement claim against Concrete failed, because they had impliedly licensed Concrete, within the meaning of CA s 15, to reproduce the plans. 688 For present purposes, what is of significance is that the findings by the various member of the court that the joint venture had fiduciary characteristics of the kind identified in United Developments. -- 215 of 253 -- [2026] WASC 301 GETHING J Page 216 689 Gummow AJC, in the context of considering whether there was an implied licence, observed:564 It is here that the nature and scope of the joint venture in which Parramatta, Landmark and Toyama participated becomes critical. No written agreement was made recording the terms of the joint venture. Title to the development site was registered for a tenancy in common as to two-thirds for Landmark and one-third for Toyama. The land subsequently was sold in the circumstances explained in the other reasons for judgment. Title to the copyright of Parramatta was not conveyed by Parramatta to Landmark and the other members of the joint venture. However, the plans were made available for the purposes development application, an essential step to achieve the development of the site. Landmark had a substantial financial interest in that development and its proceeds, and Mr Fares, sole director and shareholder in Parramatta, was a principal of Landmark. Contrary to the case asserted by Parramatta, the purposes of the joint venture extended, upon breakdown of relations between the parties, to such use of the plans and drawings as was necessary and convenient to turn to account the development site and the current development approval. As a matter of contract, Parramatta and Landmark were obliged to cooperate in the doing of acts necessary for the performance by the joint venturers of their mutual and fundamental obligations under their arrangements… Further, given the nature and scope of the joint venture arrangements, the joint venture possessed fiduciary characteristics of the kind identified in United Dominions Corporation Ltd v Brian Pty Ltd … For Parramatta to deny consent to the use by Concrete of the plans and drawings as consequent upon the acquisition of the development site would be to pursue its interests in conflict with the purposes of the joint venture as earlier identified. For these reasons, and as an implication drawn from the circumstances of the case, Concrete enjoys the authority of a licence binding upon Parramatta within the meaning of s 15 of the Act. 690 Hayne J observed:565 Once it is recognised that all three companies- Parramatta, Landmark and Toyama- joined in a common business enterprise, it must also be recognised that the relationship between those participants was one of mutual trust and confidence. It matters not whether the participants 564 Concrete HCA [12] - [16] (Gummow ACJ) (references omitted). 565 Concrete HCA [124] (Hayne J). (134) was a reference to United Dominions(10 - 11; (135) was a reference to Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384, 407 - 408 (Dixon J) (Birtchnell) and McPherson, “Joint Ventures”, in Finn (ed), Equity and Commercial Relationships (1987) 19, at pages 26 - 30. -- 216 of 253 -- [2026] WASC 301 GETHING J Page 217 could properly be described as partners, or whether it is only the necessarily less precise expression 'joint venture' (134) that can be applied to their relationship. The critical consideration is that the relationship was one of mutual trust and confidence (135). The obligations of each of the participants, when the relations between them broke down, extended not only to realising, to the advantage of each of the participants, all of the assets that had been committed to the venture, but also to not impeding that realisation whether by pursuing the individual interests of one participant in conflict with the interests of others, or in some other way. As Gummow A-CJ points out, for Parramatta to deny consent to the use by Concrete of the plans and drawings would be to pursue its interests in conflict with the interests of other participants. Section 15 of the Copyright Act was thus engaged. 691 And Callinan J:566 It is a well settled rule of construction of contracts that each party owes to the other a duty to cooperate in the doing of acts which are necessary to the performance by the parties, or any of them, of the contract… A corollary of that rule is that a party will not obstruct the performance of the contract. Not only should such a term be implied in the agreement for the joint venture here, but also regard should be had to the fiduciary relationship existing between joint venturers, giving rise to mutual rights and obligations (169). Those matters do not mean that the respondents should, on account of them alone, necessarily forgo any entitlement to, or intellectual property that they might possess in, the plans. But, as will appear, they are of considerable relevance to the resolution of the case. There is another term which is discernible from the nature of the primary agreement, the agreement for the joint venture itself. It is that the purpose of the agreement was to maximise the financial return of all parties to it. Again, that does not of itself exclude any entitlement that the respondents might have to charge for, and recover, professional fees properly payable. But it does throw light upon the intentions to be imputed to the parties, in the event, apparently unforeseen at the time of the making of the joint venture agreement, of its breakdown. At that point, both terms, of cooperation and non-obstruction, and of the application of joint and several effort to maximise the financial return, and the underlying fiduciary obligations came into play, subject of course to any other agreement in favour of one or more of the parties. 692 The remaining members of the court, Kirby and Crennan JJ, did not consider the fiduciary relationship issue. 693 As noted, Hayne J cited the decision of Dixon J in Birtchnell. The passage cited in part reads:567 566 Concrete HCA [156] - [157] (Callinan J). (169) was a reference to United Dominions 10 - 11. -- 217 of 253 -- [2026] WASC 301 GETHING J Page 218 The relation between partners is, of course, fiduciary. Indeed, it has been said that a stronger case of fiduciary relationship cannot be conceived than that which exists between partners. "Their mutual confidence is the life-blood of the concern. It is because they trust one another that they are partners in the first instance; it is because they continue to trust one another that the business goes on"… The relation is based, in some degree, upon a mutual confidence that the partners will engage in some particular kind of activity or transaction for the joint advantage only. 694 What may be referred to as a 'common business enterprise'568 fiduciary relationship is thus of a slightly different character than what may be referred to as an 'exclusive' fiduciary relationship. In the former, as Dixon J observes, each party must act for their joint advantage. In the latter, the fiduciary must exclusively serve the interest of the other.569 The trustee is the archetype of this kind of fiduciary relationship,570 as the partnership is of the former.571 What is common is that, in each case, 'the fiduciary is not free to pursue his or her separate interests'.572 17.4 Did Mr Scott owe a fiduciary duty to Ms Marr? 695 The factual findings I have made so far include that: (a) the relationship between Ms Marr and Mr Scott was purely commercial ([488]); (b) Links Road was owned by Ms Marr and Mr Scott as tenants in common equally ([162]); (c) the Final Marr Scott Sale Agreement included a term that both parties would use their best endeavours to expediate the proposed re-zoning to commercial ([446]); (d) there was a plan, but not a legally enforceable contract, to rezone Links Road to for commercial use, undertake renovation works to the property to enable it to be used for commercial purposes and for both Ms Marr and Mr Scott to conduct their businesses from the property ([460]); 567 Birtchnell 10 - 11 (Dixon J). 568 To use the language of Smith J in Wright Prospecting [1562]. 569 Mercanti v Mercanti [2016] WASCA 206 [226] (Buss P) (Mercanti). 570 Mercanti [227]. 571 Birtchnell 10. 572 Hospital Products 99; Mercanti [226]. -- 218 of 253 -- [2026] WASC 301 GETHING J Page 219 (e) once the unequal contributions to the initial loan were addressed, all expenses would be shared equally, with the parties each paying for particular expenses from time to time, with there being a final accounting of expenses at some point so that the expenses could be equalised ([456]); and (f) income and the ultimate profit on sale would be shared in accordance with their rights as co-owners ([457]). These findings lead me to find that Mr Marr and Mr Scott engaged in a common business enterprise to own and develop Links Road. 696 It is not necessary for me to characterise the common business enterprise as a 'joint venture' or a 'partnership'.573 Rather, the focus is on the form which common business enterprise takes and the content of the obligations which the parties undertook. The plurality in United Dominions said that the joint undertaking, or in my language common business enterprise, could be carried out through the medium of joint ownership ([684]). The common business enterprise in [695] was, in the language of the plurality in United Dominions, 'an association of persons for the purpose of a particular … financial undertaking or endeavour with a view to mutual profit, with each participant contributing money [and] skill', the property being contributed jointly. That is exactly what has occurred in the present case. 697 As was the case in United Dominions, the fact that there was no formal agreement does not preclude a fiduciary relationship arising. To reiterate what I have quoted at [685], a 'fiduciary relationship can arise and fiduciary duties can exist between parties who have not reached, and who may never reach, agreement upon the consensual terms which are to govern the arrangement between them'.574 And, 'the relationship between prospective partners or participants in a proposed partnership to carry out a single joint undertaking or endeavour will ordinarily be fiduciary if the prospective partners have reached an informal arrangement to assume such a relationship and have proceeded to take steps involved in its establishment or implementation'.575 Again, that is exactly what has occurred in the present case. 698 Further, I also find that the relationship was one of mutual trust and confidence.576 The fact that Ms Marr and Mr Scott did not take the 573 Concrete HCA [124]. 574 United Dominions 12. 575 United Dominions 12. 576 Concrete HCA [124]. -- 219 of 253 -- [2026] WASC 301 GETHING J Page 220 effort to formally document the terms of their common business enterprise at the outset is strongly indicative of the mutual trust and confidence that then existed between them. In the words of Dixon J, their common business enterprise was based 'upon a mutual confidence that the partners will engage in some particular kind of activity or transaction for the joint advantage only'.577 699 For these reasons, Ms Marr has proven that the relationship between her and Mr Scott to own and develop Links Road was fiduciary in nature. 17.5 Is there a limitation issue? 700 At this point in the analysis, it is necessary to consider the limitation defence raised by Mr Scott. As mentioned, Mr Scott further pleads that even if there is a fiduciary duty and/or equitable compensation claim they are equitable claims and are statute barred pursuant to LA sections 13, 26 and 27. 701 LA s 13 sets a general limitation period of 6 years: 13. General limitation period — 6 years (1) An action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued. (2) Subsection (1) does not apply to an action if Division 3 provides for a different limitation period for that action. 702 LA s 26 provides that an 'action for an account cannot be commenced if the limitation period for the cause of action that is the basis of the duty to account has expired'. 703 LA s 27 deals with equitable actions: 27. Equitable actions (not analogous to other actions) (1) An equitable action cannot be commenced after the only or later of such of the following events as are applicable — (a) the elapse of 6 years since the cause of action accrued; or 577 Birtchnell 10 - 11 (Dixon J). -- 220 of 253 -- [2026] WASC 301 GETHING J Page 221 (b) the elapse of 3 years since time started running, on equitable principles, for the commencement of the action. (2) In this section — equitable action means an action — (a) in which the relief sought is in equity; and (b) for which (had a limitation period not been provided for under subsection (1) or section 13) the limitation period would not be determined in equity by analogy to the limitation period for any other kind of action. 704 The application of these provisions was the subject of detailed consideration by the Court of Appeal in Wright v Lemon.578 I adopt this analysis and do not need to repeat it. 705 The fiduciary duty which I have found arises out of the initial agreements in 1999. In these circumstances, equity applies the ordinary six year limitation period that applies to breach of contract claims by analogy.579 706 The action was commenced on 9 October 2020. The limitation period limits the claim which Ms Marr could bring to six years prior to this date, being 9 October 2014. So I only need to consider whether there was a breach of the fiduciary duty after 9 October 2014. 17.6 Did Mr Scott breach his fiduciary duty? 707 Ms Marr claims damages on two bases. 708 The first is the first is the difference between the rent actually received and the fair market rent for a residential property. I have deal with this issue in Parts 12 and 13, and have taken the resulting position into account in the analysis in Part 19. The characterisation of the relationship a fiduciary does not change the outcome of this analysis. 709 The second is the loss and reduction of value of the Links Road because it was not rezoned and rented out as a commercial property. This in turn has two components: 578 Wright v Lemon [2024] WASCA 19 [1096] - [1112] (Buss P, with whom Vaughan and Hall JJ agreed) (Wright). 579 Wright [1096] - [1112]; Dewar v Ollier [2020] WASCA 25 [167] - [169] (judgment of the court); Duckworth atf The Ocean Farm Trust v Water Corporation [2024] WASC 90 [63] - [64] (Howard J). -- 221 of 253 -- [2026] WASC 301 GETHING J Page 222 (a) a claim for the difference between the actual rent received and the fair market rent if let commercially; and (b) a claim for the difference between the purchase price that would have been received had the property been zoned commercial and the purchase price in fact received. 710 Each component is based on the premise that Mr Scott had an obligation to develop Links Road so that it could be let commercially. As mentioned at [600], the liability of a co-owner to account is only for rents and profits actually received, and not for what might have been received had he better managed or exploited the subject land. If the co-owner is a fiduciary in the context of a common business enterprise, the position changes. Again, as Smith J puts it, 'all parties must seek to realise for the advantage of each participant all the assets committed to the joint venture'.580 711 The common business enterprise did not contemplate a wholesale redevelopment. But it did contemplate that Links Road would be improved so as to be able to be let commercially. Initially, this was to be to the businesses then being operated by Ms Marr and Mr Scott. 712 I find that the fiduciary obligation on Mr Scott included to use reasonable endeavours to get Links Road re-zoned to commercial. This is reflected in clause 7 of the Marr Scott Sale Contract (quoted at [67]), but expressed in more general terms as that clause referred to the application then in process. As set out in section 7.1, Ms Marr handled the rezoning application. Links Road was not rezoned to commercial until April 2014. I am not satisfied that Mr Scott breached his fiduciary obligation by failing to use reasonable endeavours to get Links Road re-zoned to commercial before this date. There is no evidence to this effect. In any event, this breach is not pleaded. 713 The breach reflected in both the Claim and the way in which the trial was fought581 was that Mr Scott had, and breached, a fiduciary obligation to improve Links Road and let it out commercially. More specifically, I find that the fiduciary obligation on Mr Scott required him to do one of three things: (a) work with Ms Marr to together improve Links Road so that it could be let commercially; or 580 Wright Prospecting [1562]. 581 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ) (Dare). See for example: Transcript 19.6.26, pages 1708 - 1709. -- 222 of 253 -- [2026] WASC 301 GETHING J Page 223 (b) himself improve Links Road so that it could be let commercially; or (c) vacate occupancy and allow Ms Marr to improve Links Road so that it could be let commercially. 714 There were two potential ways in which Links Road could be let commercially: (a) a complying commercial use within the initial zoning parameters;582 or (b) letting following a rezoning to commercial in April 2014. 715 I do not need to consider the former as, given the limitation point, the issue of whether there has been a breach can only arise in the period after Links Road had been rezoned to commercial. 716 It is common ground that a number of improvements had to be made to Links Road in order for it to be let commercially. 717 Ms Marr gave evidence that in 2014 (section 7.17) and 2022 (section 7.23) she had entered into leases over Links Road with a friend with the intent that she would live there with her friend and together they would undertake the work required to get the property up to a commercial standard. In this regard, she said that the friend in 2014 was a licensed electrician who was going to do some electrical work for her as 'part of the deal'.583 718 Her evidence as to the work required was:584 So, even though you could zone the property - the property now was zoned commercial, you were advocating residential tenancies and the use of residence? Short term, in order to effect the works necessary to put in the ramp. A pedestrian access ramp is necessary. So I was going to get some limestone blocks and do some sand fill, and brick pave it, and compact it. Cutting the toilet door at 90 degrees to where it is, for wheelchair accessibility. Disabled people have difficulty.. 719 And:585 582 As to which, see for example: Transcript 19.02.26 page 822 (Marr). 583 Transcript 19.02.2026, pages 834 - 835 (Marr). 584 Transcript 19.02.2026, pages 834 - 835 (Marr). Also, Transcript 17.02.26 page 598 (Marr). 585 Transcript 17.02.26 pages 607, 639 (Marr). -- 223 of 253 -- [2026] WASC 301 GETHING J Page 224 And the only other - there were other tiny modifications, and that is to do with ACROD accessibility to toilets in commercial buildings, that we would have to chop the door in the toilet in from the side, not going into the laundry and around the corner. That's too hard for people in wheelchairs. That it would come off the 1.1 metre passageway, where the toilet abutted back. And there is a copy of the plan of the house in here somewhere, and also in the online marketing that Ross & Galloway caused to be published. The very last slide, there's a plan, and I can explain that. So it was really minor modifications. … The exterior - the place was a mess. I would have had a painter in there instantly. And we don't need - you don't need a building licence to build the external ramp for wheelchair or disabled access. And the only other thing I had to do was cut a new door into the side of the toilet for mobility access so that you could get into the toilet; instead of going around to 180 degrees, you come in at 90 degrees. That's it. And then it's commercial. And it could be a tax accountant. It didn't need to be a medical facility. It could be anything that anybody wanted. Perfect location, high visibility corner, because that's where Almondbury Road kinks and Links Road is a major street because of the high school. And there's a - it's a big, high-profile corner. All you need is signage and someone pays for that, naming rights. It has got value. 720 Mr Scott gave evidence to the effect that the work would have been extensive:586 And in terms of what was required to be done, if anything, to the commercial property, to make - sorry, to make the property be used as commercial, what would you say would need to have been done?---At that point, the property would have been entirely unacceptable. There was a lot more work to be done. It was - it had some stud framing and a sliding door on the rear sunroom south wall. It wasn't infilled around the sliding door at that time, just a triangle up above. It was open there. And then on the entire west face of the sun-room, there was a couple of steel members and some aluminium framing but no glass in any of the four hole points, 2014, Reece. Yes. Kevin has left. It was pretty grungy all the way through. The tiles were all lifting in the bathroom and the - the laundry. The back areas, the paving had not been completed around the edges. It had only been completed in the body of it. There was settlement in the middle of it. The front porch was sagging. 586 Transcript 19.6.26 pages 1717 - 1718 (Scott) -- 224 of 253 -- [2026] WASC 301 GETHING J Page 225 So what specific things would you need to attend to, to make it commercial? That was a residential property?---Look, I - I'm pretty sure it wasn't just - to put in it - you couldn't put in a ramp and go, 'Okay. It's commercial now.' The whole lot really needed bringing up to a smart reasonable standard, and, you know, a single dunny that you walk out to, and you walk through the open air at the back, is not something you would present to a commercial tenant. The lifting floors is not something you can present to a commercial tenant. I'm just thinking of the work we did after these tenants, after we took possession of it and lived there for a while, and the work we did before we put Suzie and Shane in entailed a lot of these things and cleaning up, and I would not say, even when we did a lot of this work and got Suzie and Shane in, that it was presentable as a commercial tenancy at all. There was still a lot to be done, but at least we had the glass in the back then. And, really, there - sorry?---The porch, all worn. A lot of areas of the front facade of the building were not good. It always had a problem with cracking mortar, and that was an issue that had to be resolved. The gardens were not at all presentable. And what about the parking?---And the parking. What would be required for - - -?---That's - that's a good point. The parking, you would have to put down a complete asphalt surface. There was no driveway crossover onto the property, so that had to occur. People were bumping over a six-inch kerb the entire time to get in and out. There was no - it was from - Kevin did a reasonable job of putting down a - levelling it and putting down a rock a crushed rock surface, but it was still a loose crushed rock surface, and I don't think that would have been acceptable to any commercial client. It - sort of, you can get away with some of these things and have a daggy house for a residential client, but you can't do this for commercial clients. What about - - -?---Look, I'm sure that if you wanted to turn it into a commercial and - keep the building structure there and turn it into commercial property, at that time, we would have spent $40,000. And what about the requirements for disabled clients?---We would have had to have had proper asphalt pot mix paving and marking out of bays for it to be a commercial. I'm sure that will be a minimum requirement of council. And the drive over crossover alone would have - would have cost another $2000 to $4000. Council had already indicated that they were not prepared to give a property - a crossover to this property off their own account, which is what they normally do for new houses, because there's an old house, and they surmised that it did actually have a crossover at some point to the rear before it got subdivided, before we bought it, so they weren't paying for the second one. We had to pay for that. -- 225 of 253 -- [2026] WASC 301 GETHING J Page 226 And would you have had to change the toilets in order — and the doors for disabled clients?---You would have had to — I doubt that the toilet at the size that it was would have allowed for disabled clients at all. It's just not wide enough and, certainly, the door had to be reworked. But the approach into the door as well. And there's no ramps internally or externally but lots of steps everywhere that would have had to have been ramped. And disabled access would have been a big hurdle. And you would have had to complete parking and disabled access for a commercial premises?---I believe so, yes. And, roughly, sorry, how much do you think that would have been?---I'm sure we're looking at 40,000 and upwards. 721 I have no expert evidence as to what work would have been required to have brought Links Road up to the level at which it could have been rented commercially, nor the cost of doing so. 722 Mr Sanchez gave evidence that Links Road is currently being used for a chiropractic practice.587 So I can readily infer that it was entirely possible for Links Road to be improved so as to be let commercially at least for a medical or allied health practice. 723 In relation to the three options at [713], it is readily apparent from all the evidence that by 2014 there had been a total breakdown in the relationship between Ms Marr and Mr Scott. This is seen most starkly in the fact that Ms Marr had to commence proceedings in the Magistrates Court in order to exercise her right to possession of Links Road (see section 7.17). The first option was not feasible. 724 As to the second option, Mr Scott gave evidence that in the period from 2014 to recent times he was in a difficult financial position. His net equity was modest. Among other things, from 2014 he had an instalment plan with the Australian Taxation Office to pay off his outstanding tax liabilities. He was only able to clear this debt in 2025 when he received an inheritance from his father.588 He gave evidence that he would not have had the financial capacity to undertake the necessary works to bring Links Road up to the standard of being able to be let commercially.589 I accept his evidence and find in terms of it. However, I would allow him some time to have considered the first two options. 587 Transcript 19.6.26, page 1675 (Sanchez). 588 Transcript 19.6.26, pages 1713 - 1717 (Scott). 589 Transcript 19.6.26, pages 1718 (Scott). -- 226 of 253 -- [2026] WASC 301 GETHING J Page 227 725 That leaves the third option. I accept Ms Marr's evidence which is to the effect that, if given the opportunity, she could and would have undertaken the improvements necessary to bring Links Road up to the standard of being able to be let commercially. This, however, would have taken some time. 726 Drawing this analysis together, I find that: (a) Mr Scott was under a fiduciary duty 'to realise for the advantage of each participant all the assets committed to the joint venture';590 (b) at least after Links Road had been rezoned in April 2014, this required Mr Scott to take one of the three options outlined at [713]; (c) by no later than 31 December 2016, it should have been readily apparent to him that it would not be possible for him to either work with Ms Marr to together improve Links Road so that it could be let commercially or for him, alone, to improve Links Road so that it could be let commercially; (d) consequently, by 31 December 2016, Mr Scott should have vacated occupancy of Links Road so as to allow Ms Marr to improve Links Road so that it could be let commercially; and (e) he failed to do so. 727 On this basis, I find that Mr Scott breached the fiduciary duty he owed to Ms Marr from 31 December 2016 by not vacating occupancy of Links Road so as to allow Ms Marr to improve Links Road so that it could be let commercially. 17.7 What, if any, remedy is Ms Marr entitled to? 728 'In choosing between available remedies for breach of fiduciary duties, the court must fashion the most appropriate remedy or remedies to fit the nature of the case and particular facts'.591 There are three primary remedies: constructive trust, account of profit or equitable compensation.592 590 Wright Prospecting [1562]. 591 Wright Prospecting [1902]. 592 Warman International Ltd v Dwyer (1995) 182 CLR 544; 128 ALR 201, 208 - 12 (reasons of the court). -- 227 of 253 -- [2026] WASC 301 GETHING J Page 228 729 A constructive trust would typically be imposed where the fiduciary acquired the property over which the constructive trust is sought to be imposed.593 That is not what has occurred in the present case. There are other grounds on which a constructive trust may be imposed, which do not depend on a breach of fiduciary duty by Mr Scott. I address these in Part 19. 730 As to the second form of remedy:594 An account of profits is applied where it is appropriate that the fiduciary disgorge realised and unrealised profits of a business… A person who is under a fiduciary obligation must account to the person to whom that obligation is owed for any benefit or gain obtained in breach of the profit or conflict rules… 731 In the present case, Ms Marr does not assert that Mr Scott made a profit by reason of his breach of fiduciary duty. Rather, the allegation is in substance that he failed to 'to realise for the advantage of each participant all the assets committed to the joint venture'.595 732 Ms Marr has sought an account on a 'wilful default' basis. The difference between an account on a common basis and an account on wilful default basis was explained by E M Heenan J in In Re Ellis; Ellis v Ellis.596 As to the former:597 The first which is usually made against the executor or administrator is an order for 'a common account'. In such an instance, the accounting party, the personal representative, must disclose all of the assets of the estate which he has received or realised and all of the expenses or distributions which he has made by payments from the estate. The process of account will examine whether all estate assets have been properly accounted for and at full value and whether all the claimed expenditure is justified both in relation to its nature and quantum. It will be necessary for the accounting party to produce vouchers to show the realisation of estate assets, for example, proceeds of bank or other deposit accounts, the sale of realty or personality (not specifically distributable under the will), rents and profits received and interest, dividend or other estate income. Similarly, the personal representative will list all expenditure and produce vouchers or other evidence as to payment and justify the incurring of such expenditure both as to its nature and quantum. Obviously, administration expenses, accounting 593 See generally: Wright Prospecting [1904] - [1910]. 594 Wright Prospecting [1914] (references omitted). 595 Wright Prospecting [1562]. 596 In Re Ellis; Ellis v Ellis [2015] WASC 77 (E M Heenan J) (Ellis). 597 Ellis [124] - [125]. -- 228 of 253 -- [2026] WASC 301 GETHING J Page 229 and taxation costs, commissions on sale, expenses for the maintenance or preservation of estate property and the like are all included. Such an account will not extend to a loss to the estate due to a breach of duty by omission such as failing to invest trust property in order to obtain a suitable return or, where there is power to do so, to lease or relet estate property which is intended to be retained in the long term. 733 The analysis in Parts 12 to 17 is in substance an account on a common basis. 734 As to an account on a wilful default basis:598 However, if it is proved that there has been any wilful breach of trust… it is open for the court to order that the account be conducted on the basis of wilful default. This need not be conscious wrongdoing by the executor or administrator as it is sufficient for the account to be based on a wilful default footing if there is any breach of trust by omission proved which has caused loss to the estate. In such a case, the accounting party will be made liable not merely for any receipts or payments actually received or made but in respect of the value of property or income which should have been derived by the estate but for the wilful breach and to make reparation, often with interest, for opportunities so incurred. 735 As to the third form of relief:599 Equitable compensation is an alternative to an account for breach of fiduciary duty. Equitable compensation aims to put the plaintiff in the position he or she would have occupied had the duty not been breached… This remedy is assessed at the time of trial, not at the time of breach… 736 On the facts of this case, there is no conceptual difference between the inquiry to be undertaken for a wilful default inquiry and inquiry to be undertaken for equitable compensation inquiry. However, given the vagueness of the evidence relied on, the latter is the preferable approach. 17.8 What measure of equitable compensation is Ms Marr entitled to? 737 I thus need to assess the measure of compensation necessary to put Ms Marr in the position she would have occupied had the duty not been breached. The rule is well established that where the court is called on to assess damages on the basis of incomplete or vague information, the 598 Ellis [126]. 599 Wright Prospecting [1916] (references omitted). -- 229 of 253 -- [2026] WASC 301 GETHING J Page 230 court can adopt a broad brush approach and do its best. In Commonwealth of Australia v Amann Aviation Pty Ltd Mason CJ and Dawson J said:600 The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed…. the 'assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation'. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages. Further, in Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd Barwick CJ observed that:601 It is perhaps not a very satisfying answer to say that damages are not in every case a perfect compensation but in many cases no more than an approximation lacking in mathematical or economic accuracy or sufficiency. But, however unsatisfying, that answer, in my opinion, must be accepted. 738 The starting point is then to identify the position that Ms Marr would have been in had Mr Scott vacated occupancy of Links Road by 31 December 2016 so as to allow her to have improved Links Road so that it could be let commercially. I find that Ms Marr could have done this work. Her professional background was in building design and she had experience in managing at least her own redevelopment projects. She had done a sketch of Links Road as commercial premises back in 1999.602 From her evidence, I accept that she may well have done a lot of the work herself or with friends (see [367] and [343] above). However, I also find that it would have taken Ms Marr a further 12 months to have undertaken the necessary work. 739 So the counterfactual on which damages are to be assessed are that by 1 January 2018 Links Road would have been let commercially. I accept that it may have taken some time to have found a tenant, but I have also factored that time delay into the 12 months in [738]. Damages are thus to be assessed to put Ms Marr in the position that in the period from 1 January 2018, it was let commercially. The end date 600 Commonwealth of Australia v Amann Aviation Pty Ltd [1994] HCA 54; (1991) 174 CLR 64, 83 (Mason CJ & Dawson J) (references omitted). 601 Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1981] HCA 3; (1981) 145 CLR 625 (Barwick CJ). 602 PTB E, pages 35 - 36 -- 230 of 253 -- [2026] WASC 301 GETHING J Page 231 is still the date of sale of 9 June 2023 ([399]). It is inevitable that during the course of this litigation Links Road would have been sold. 740 There are three aspects to the compensation. The first is the rent. Ms Marr did not call any expert to give evidence as to the fair market rent of Links Road had it been let commercially. Rather, she adduced this evidence from Mr Sanchez in cross-examination. His evidence was that:603 (a) as at 2016, the commercial rent would have been close to double the residential rent of $300, that is, $600;604 (b) by 2021, the commercial rent 'might' have been $800 to $1,000, 'but it just depends';605 and (c) for a business like a chiropractor, 'somewhere around the 6 to 7 hundred dollars a week'.606 In re-examination, Mr Sanchez confirmed that management fees are not payable for a retail business and would have be deducted from these amounts.607 741 The way in which Mr Sanchez was asked to give his opinion was unsatisfactory. Mr Scott did not have the opportunity to have Mr Sanchez undertake the sort of detailed valuation exercise that he did with his report on the residential rent. In fairness to Mr Scott, it is appropriate that I adopt a conservative approach. I am not persuaded that the commercial rent (less agents fees and commission) for the period from 1 January 2018 to 9 June 2023 would have been in excess of an average of $650 across this period. This figure is around double the residential rent which I have found in [597]. 742 There are two periods. The first is when Mr Scott was in occupation, being 1 January 2018 to 21 February 2020, being 111 weeks. I have already assessed Ms Marr as being entitled to $14,985 by way of occupation fees (see [599]). The commercial rent received would have been $72,150 ($650 x 111). She is entitled to half of this being $36,075 ($72,150 x 50%). I then need to take off the 603 Transcript 19.6.26, pages 1676 - 1677 (Sanchez). 604 Transcript 19.6.26, pages 1676 - 1677 (Sanchez). 605 Transcript 19.6.26, pages 1676 - 1677 (Sanchez). 606 Transcript 19.6.26, page 1683 (Sanchez). 607 Transcript 19.6.26, page 1685 (Sanchez). -- 231 of 253 -- [2026] WASC 301 GETHING J Page 232 amount she is entitled to for the occupation fee to avoid double counting which gives $21,090 ($36,075 less $14,985). 743 The second is when Ms Butler and Mr Pearce were in occupation, being 22 February 2020 to 3 June 2023, being 171 weeks. Ms Marr is entitled to 50% of the rent received, being $30,329 ($60,658 x 50%). The commercial rent received would have been $111,150 ($650 x 171 weeks). She is entitled to half of this being $55,575 ($111,150 x 50%). Again, I need to take off the amount she is entitled to for the rent actually received to avoid double counting which gives $25,246 ($55,575 less $30,329). 744 In summary, Ms Marr is entitled to equitable compensation in the amount of $46,336 ($21,090 + $25,246). This amount should be deducted from the amount which Mr Scott would otherwise have received from the funds in court. 745 The second aspect to the compensation is outgoings. Mr Sanchez gave evidence a commercial tenant would ordinarily pay outgoings, specifically:608 (a) Council rates; (b) land tax; (c) water rates; and (d) building insurance. 746 There is no reason to suggest that this would not have been the case had Links Road been let commercially. In other words, had this occurred, the tenant, and not Mr Scott and Ms Marr, would have been liable to have paid the outgoings at [745]. From Mr Scott's perspective, had he complied with his fiduciary duty and Links Road had been let commercially, he would have been reimbursed for these expenses by the tenant. So he cannot now claim them from the funds in court. The way this should be brought to account is not to allow Mr Scott to claim any of these expenses for the period from 1 January 2018. 747 In relation to insurance, the amount claimed by Mr Scott of $9,832.50609 needs to be reduced by $3,535 which leaves $6,297.50, as follows:610 608 Transcript 19.6.26, pages 1678 - 1679 (Sanchez). -- 232 of 253 -- [2026] WASC 301 GETHING J Page 233 Expenses to be Deducted from Full Amount Claimed ($9,832) Date of Expense Particulars Amount Totals 26 November 2018 WFI Sydney $541.00 10 December 2019 WFI Sydney $573.00 7 December 2020 WFI Home Ins $635.00 20 January 2021 WFI NetBank BPAY 172… $52.00 4 November 2021 WFI NetBank BPAY 172… $721.00 1 November 2022 WFI NetBank BPAY 172… $714.00 13 June 2023 Direct Credit 387579 WFI… $299.00 Subtotal $3,535 Balance $6,297.50 748 In relation to water rates and charges, the amount claimed by Mr Scott of $23,363.51611 needs to be reduced by $7,698.64 which leaves $15,664.87 as follows 612 Expenses to be Deducted from Full Amount Claimed ($23,363.51) Date of Expense Particulars Amount Totals 18 July 2018 Water Corp Payment - Link… $493.83 26 November 2018 Water Corporation - Balcatta... $200.49 26 November 2018 Water Corporation Balcatta $323.51 19 March 2019 Water Corporation… $509.16 19 July 2019 Water Corporation - Balcatta $401.29 2 May 2020 Water Corporation… $428.70 6 February 2020 Water Corporation - Balcatta $227.48 31 August 2020 Water Corporation… $471.24 20 April 2021 Water Corporation … $386.80 21 April 2021 Water Corporation … $303.47 2 August 2021 Water Corporation … $251.21 18 October 2021 Water Corporation … $242.43 4 November 2021 Water Corporation … $237.19 19 December 2021 Water Corporation … $243.90 24 February 2022 Water Corporation $312.32 21 June 2022 Water Corporation … $578.86 27 October 2022 Water Corporation $1338.74 23 February 2023 Water Corporation $748.02 Subtotal $7,698.64 Balance $15,664.87 609 Exhibit 18, pages 2 - 3. 610 Drawing the figures from Exhibit 18, page 1. 611 Exhibit 18, pages 4 - 5. 612 Drawing the figures from Exhibit 18. -- 233 of 253 -- [2026] WASC 301 GETHING J Page 234 749 In relation to land tax, the amount claimed by Mr Scott of $4,935.40613 needs to be reduced by $3,568 which leaves $1,367.40, as follows:614 Expenses to be Deducted from Full Amount Claimed ($4,935.40) Date of Expense Particulars Amount 12 November 2021 Land Tax NetBank BP… $1,170 2022 Land Tax NetBank BP… $1,170 2023 Land Tax NetBank BP… $1,228 Subtotal $3,568 Balance $1,367.40 750 In relation to council rates, the amount claimed by Mr Scott of $32,265.90615 needs to be reduced by $7,873.03 which leaves $23,116.90, as follows:616 Expenses to be Deducted from Full Amount Claimed ($32,265.90) Date of Expense Particulars Amount Totals 26 November 2018 City of Melville - Booragoon… $1,621.03 25 August 2019 City of Melville NetBa… $408.76 31 August 2020 City of Melville NetBa… $1,419.37 26 October 2020 City of Melville NetBa… $397.86 19 January 2021 City of Melville NetBa… $392.20 24 February 2021 City of Melville NetBa… $392.20 1 August 2021 City of Melville NetBa… $1,582.18 2022 N/A N/A 20 February 2023 City of Melville NetBa… $1,659.43 Subtotal $7,873.03 Balance $23,116.87 751 In each case, I am conscious that I have not broken the figure for 2018 into the charge accrued before and after 1 January 2018. However, the analysis undertaken is sufficient given the broadbrush approach I need to adopt. 613 Exhibit 18, page 6, 614 Drawing the figures from Exhibit 18. 615 Exhibit 18, page 7. 616 Drawing the figures from Exhibit 18. -- 234 of 253 -- [2026] WASC 301 GETHING J Page 235 752 The overall result may be summarised as: Category Amount able to be claimed Deduction in lieu of equitable compensation Net amount able to be claimed (rounded) House insurance $ 9,832.50 $3,535 $6,298 Water Corporation $23,363.51 $7698.64 $15,665 Land tax $ 4,935.40 $3,568 $1,367 Melville City Council $30,989.90 $7,873.03 $23,117 Repairs and general charges $32,208.20 N/A $32,208 Mr Scott is only entitled to claim in the apportionment the amounts in the far right column. 753 The third aspect to compensation is that Ms Marr claims the difference between the purchase price that would have been received had the property been zoned commercial and the purchase price in fact received.617 Ms Marr relies on an expert report by Glenn Cooper of Valuations HQ, which is in the bundle of documents tendered.618 However, as Mr Cooper was not called to given evidence (and be available for cross-examination), his opinion in not admissible. Ms Marr gave evidence as to what she thought the value would have been.619 However, she is not qualified to give this opinion. In the end, the position is that there is no admissible evidence that, had Links Road been let to a commercial tenant when sold, it would have sold for a higher price. I also reiterate that by Links Road had been rezoned to commercial in April 2014, so the uplift in value as a result of the rezoning is presumably reflected in the sale price in fact obtained. Ms Marr has not established any entitlement for equitable compensation based on a loss arising from the price at which Links Road was sold. 754 Ms Marr also claims interest on any equitable compensation awarded. Had Links Road been let commercially, the additional rental would have first gone to paying the expenses of the property, in particular the mortgage. On the evidence before the court, even let commercially, I am not persuaded that Links Road would have been 617 Plaintiff’s Closing Submissions, par 69. 618 PTB E, pages 88 - 124. 619 Transcript, pages 638 - 639 (Marr). -- 235 of 253 -- [2026] WASC 301 GETHING J Page 236 cashflow positive. So it is not the case that Ms Marr would have been receiving a regular flow of income from Links Road, which she has been deprived of. On this basis, I am not persuaded that Ms Marr is entitled to interest on the equitable compensation I have found. Further, as a matter of equity and discretion, Mr Scott has an equally valid claim to interest on the amounts he paid out for expenses which have now been allocated to Ms Marr.620 The fair and equitable exercise of the discretion in PLA s 126(1) in this case requires there to be no allowance to any party for interest. 18. Is Ms Marr entitled to a greater than 50% beneficial interest in Links Road? 18.1 Ms Marr's position 755 As set out in section 9.2, Ms Marr claims that by virtue of the factual matters she identifies and 'as a matter of law', she acquired an aggregate 62.4% beneficial interest in the Property by about 11 November 1998. The factual matters identified are:621 (a) the Marr-Scott Sale Agreement; (b) the Joint Endeavour; (c) her initial contributions; (d) the Indemnity; and (e) the Rancore Discount. 756 Ms Marr refers to the facts relating to the sale of Links Road which I deal with in Part 8. She pleads that the sale of Links Road effected a termination of the parties' joint ownership of Links Road and of the Joint Endeavour as of the date of sale.622 She then pleads:623 In the premises, it would be unconscionable for the defendant to deny that the plaintiff acquired a beneficial interest in the Net Proceeds (and later, the Final Proceeds), arising from the matters pleaded in paragraphs 17 [expense claim] and 27 - 28 [sale of Links Road] above. Accordingly, the defendant holds his interest in the Net Proceeds (and the Final Proceeds) upon a constructive or alternatively a resulting trust 620 Callow v Rupcev [2009] NSWCA 148 [75] - [76] (the court). 621 Claim, par 16. 622 Claim, par 28. 623 Claim, pars 29 - 31. -- 236 of 253 -- [2026] WASC 301 GETHING J Page 237 for the benefit of the plaintiff, proportionate to her contributions to the Property, in light of the Joint Endeavour and/or pursuant to any accounts and enquiries that are necessary to determine the plaintiff's entitlements to the Net Proceeds and/or the Final Proceeds. Further or alternatively to the pleaded claims by the plaintiff as to a beneficial interest in the Net Proceeds (and later, the Final Proceeds), the plaintiff claims compensation for any excess contributions she made toward the property between 12 November 1998 and 9 June 2023. 757 I have already found that Ms Marr has not proven that as at September to November 1998, a constructive trust arose by virtue of the common intention of the parties (see section 9.8). In this Part, I deal with the second basis on which Ms Marr could assert a constructive trust, being a remedial constructive trust where the parties have made a contribution to a joint endeavour. I also address whether a resulting trust should be imposed. 758 In addition to her claims for Occupation Rent and lost potential income (which I have dealt with at Part 12), Ms Marr further pleads that she is entitled to an account in relation to the loss or reduction of value of Links Road because it was not rezoned and rented out as a commercial property.624 759 The way in which the trial has been managed and conducted is that as part of the trial process, I have in effect carried out the account sought by Ms Marr. This was on the basis that the discovery obligations on each party have ensured that whatever documents still exist are in evidence. Given the comprehensive manner in which the parties have approached the issues relating to money expended and received, and my consequent compressive findings, there is no basis for any further account to be conducted. 18.2 Mr Scott's position 760 Mr Scott denies that there was a joint endeavour as pleaded by Ms Marr and says that the parties owned Links Road as co-owners. He denies the plea of unconscionability and says that there should be an account on a common basis between the parties as co-owners of Links Road.625 761 He pleads that to the extent Ms Marr is pleading a constructive trust or resulting trust, he denies this and reiterates that there should be 624 Claim, par 32. 625 Defence, pars 12, 13. -- 237 of 253 -- [2026] WASC 301 GETHING J Page 238 an account on a common basis between the plaintiff and Defendant as co-owners of Links Road.626 Likewise to Ms Marr's claim that she has a beneficial interest.627 18.3 Relevant law - Joint Endeavour Constructive Trust 762 In certain circumstances the court will impose a constructive trust where parties have made a contribution to a joint endeavour to preclude the unconscionable assertion of legal title. I will refer to this principle as a Joint Endeavour Constructive Trust. The principle was enunciated by Deane J in Muschinski v Dodds in the following terms:628 … 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: 763 In Muschinski, the appellant, Ms Muschinski, and the respondent, Mr Dodds, were an unmarried couple who had been living together since 1972. In 1975 they purchased a property on which stood a dilapidated cottage. They intended to restore it for use by Ms Muschinski as an arts and crafts centre and to construct a prefabricated house on another part of the property in which to live. Ms Muschinski paid the purchase price of the property ($20,000) from her own funds and agreed to include Mr Dodd's name on the title if he undertook to renovate the cottage and pay for the prefabricated house. The property was transferred to the parties as tenants in common in equal shares. In 1980 the parties separated permanently. The cottage had not been renovated and the prefabricated house had not been acquired. Ms Muschinski claimed sole beneficial ownership of the property. The High Court, by a majority (Gibbs CJ, Mason and Deane JJ, Brennan & Dawson JJ dissenting), decided that the parties held their legal interests in the property upon trust, after payment of any joint debts incurred in improving the property, to repay to each of them his or her contribution, and as to the residue for both of them in equal 626 Defence, par 12.5. 627 Defence, par 12.6. 628 Muschinski v Dodds (1985) 160 CLR 583, 620 (Deane J, with whom Mason J agreed) (Muschinski). -- 238 of 253 -- [2026] WASC 301 GETHING J Page 239 shares. Mason and Deane JJ based this conclusion on their finding that it would be unconscionable, after the failure of the joint venture between the parties, for Mr Dodds to assert his legal entitlement without recognising Ms Muschinski's payment of the purchase price. 764 Mason J generally agreed with Deane J but observed:629 The failure of the projected development of the land…through no fault of the parties, provides a firm basis for declaring that the parties hold their respective interests in the property as tenants in common on a constructive trust, after payment of any debts incurred in the improvement of the property, to repay to each his or her respective contributions and as to the residue for them both in equal shares. The circumstances of the case, viewed in the light of the common intention that Mr. Dodds was to take an immediate and unconditional interest in the property, did not make it inequitable that he should retain that interest, notwithstanding the failure of the projected development. But it would be inequitable for him to retain his interest without crediting to Mrs. Muschinski the contributions which she made to the acquisition and improvement of the property. Although Mrs. Muschinski intended that he should take an immediate and unconditional half interest, that intention was accompanied by an expectation, shared by Mr. Dodds, that the projected development would take place for their mutual benefit and that Mr. Dodds would be making substantial contributions to it. 765 The passage I have quoted from the decision of Deane J at [762], was approved by and applied by Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgarnter.630 In that case, the parties to a de facto relationship pooled their incomes for living expenses and fixed commitments. They lived at first in a unit owned by the respondent, which they sold when they acquired a house in his name (referred to as the Leumeah property). The Leumeah property was purchased with the aid of a mortgage in the name of the respondent who also contributed the net proceeds of sale of a unit. The parties' aggregate earnings were pooled in the proportions roughly of 55 per cent by the respondent and 45 per cent by the appellant. They later separated and the respondent asserted that the Leumeah property was his sole property. The High Court held that the respondent held the Leumeah property on trust for the parties in the proportions in which they had contributed their earnings to its acquisition, subject to a charge in the respondents' favour for the net proceeds of the unit. 629 Muschinski 599 (Mason J). 630 Baumgartner v Baumgarnter (1987) 164 CLR 137, 148 (Mason CJ, Wilson and Deane JJ) (Baumgartner). -- 239 of 253 -- [2026] WASC 301 GETHING J Page 240 766 Mason CJ, Wilson and Deane JJ said of the relationship:631 The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant's assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent. It therefore becomes necessary to determine the terms of that constructive trust. The facts that the Leumeah property was acquired and developed as a home for the parties and that, at least indirectly, it was largely financed out of money drawn from the pool of their earnings, this being one of the purposes which the pool was to serve, combine to support an equality of beneficial ownership at least as a starting point. Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind. The question which has caused us particular difficulty is whether any such adjustment is necessary in the circumstances of the present case to avoid any injustice which would otherwise result by reason of disparity between individual financial contributions. The conclusion to which we have come is that some such adjustment is necessary. 767 As the decisions in Muschinksi and Baumgartner illustrate, the issue of whether a Joint Endeavour Constructive Trust should be imposed often arises in the context of the breakdown of a family relationship. Even then, the mere existence of a de facto relationship, in combination with express or implied undertakings to provide support and accommodation, will not constitute a sufficient basis for imposing a constructive trust under which a proprietary interest in the home occupied by the parties is created.632 However, as a matter of principle, it is not limited to that circumstance. The intervention of equity will be justified where it is unconscionable for the legal owner to rely on their 631 Baumgartner 149 - 150. 632 Willis v The State of Western Australia [No 3] [2010 WASC 56 [65] (Willis). -- 240 of 253 -- [2026] WASC 301 GETHING J Page 241 legal title. However, a constructive trust is not imposed in accordance with idiosyncratic notions of what is just and fair. It is only imposed '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'.633 The core equitable principle is that there must be unconscionable conduct. 768 In Meiners (by her next friends the Public Trustee) v Gunn Seaward J identified three requirements which must be established for there to be a Joint Endeavour Constructive Trust:634 (1) the parties had a common intention to enter into a joint endeavour or joint enterprise. That joint endeavour must have been in some way concerned with the generation of wealth to provide for the parties' mutual material welfare and security; (2) the parties acquired property pursuant to that joint endeavour or contributed to that joint endeavour in some manner; and (3) the joint endeavour has failed or the substratum been removed, and it would be unconscionable in all the circumstances for the defendant to retain the benefits of the joint endeavour in circumstances where that was not intended. In the course of considering this matter, it is appropriate to have regard to the conduct of the parties. However, in circumstances where the substratum of a joint endeavour is a family or domestic relationship, this is not for the purposes of identifying moral responsibility for that breakdown, but rather as part of considering the unconscionability as claimed, and whether the plaintiff is themselves responsible for the breakdown. 769 Her Honour went on to add:635 Whilst I have outlined the above matters in three separate paragraphs, I am conscious that in the course of considering an equitable remedy such as a constructive trust, it is important to consider the above matters and the circumstances as a whole and not as separate elements as in a tortious claim. 770 A number of other principles relating to a Joint Endeavour Constructive Trust are well established: (a) the claimant must identify with some precision that nature, purpose and second of the joint endeavour alleged;636 633 Muschinski 614, 615, 617; Baumgartner 148. 634 In Meiners (by her next friends the Public Trustee) v Gunn [No 2] [2025] WASC 529 [668] (Seaward J) (Meiners). 635 Meiners [669]. -- 241 of 253 -- [2026] WASC 301 GETHING J Page 242 (b) the joint endeavour must be established as a matter of fact;637 (c) the declaration of a constructive trust to preclude the unconscionable assertion of legal title may be made regardless of actual or presumed agreement or intention of the parties; and638 (d) however, the intentions of the parties may be relevant to determining whether it would be unconscionable for the parties to be held to their legal interests - if 'the parties have expressly contemplated the very situation which has arisen, and have, in advance, agreed how the assets built up as a result of their joint efforts should be divided in that situation, it would often be the case that there is nothing unconscionable in holding the parties to their agreement'.639 18.4 Was there a Joint Endeavour Constructive Trust? 771 Mr Scott's position is that, subject to an account, both he and Ms Marr are entitled to 50% of the net sale proceeds of Links Road. As to the account: (a) each party is entitled to be credited their actual contributions; (b) each co-owner is entitled to be credited with 50% of actual income received; and (c) the actual expenditure of each party must be brought to account and to the extent there is an imbalance, the amount of the imbalance is credited to be party who paid more. 772 Mr Scott says that this is the position at law as between him and Ms Marr as co-owners of land. I agree. I then add that equity will intervene to not allow one co-owner to claim from the other an imbalance in expenses without bringing to account the benefit which that party had by virtue of their sole occupation of the property. This I have done in the analysis to date. Based on my findings so far, I find that: (a) the parties engaged in a common business enterprise (or joint endeavour) to purchase Links Road and improve it with the 636 Willis [72]; Trajkoski [30]. 637 Lloyd v Tedesco [2002] WASCA 63 [9] (Miller J). 638 Muschinski (614); Willis [64] (Buss JA, with whom McLure and Owen JA agreed). 639 West v Mead [2003] NSWSC 161 [62] - [64] (Campbell J); Willis [64]. -- 242 of 253 -- [2026] WASC 301 GETHING J Page 243 intent of either using it for commercial purposes or renting it for commercial purposes; (b) they had a joint mortgage; and (c) funds were (at least initially) pooled into a common bank account out of which the mortgage and other expenses were ordinarily paid. 773 However, for the purposes of considering the imposition of a Joint Endeavour Constructive Trust, the crucial issue is whether it would be unconscionable for Mr Scott to rely on his legal rights. For two short reasons, I am of the view that it would not. 774 First, there is no contribution made, or money expended, by Ms Marr which I have not taken into account in the analysis so far. There is no benefit which it would be unconscionable for Mr Scott to retain. 775 Second, the account is being carried out, and the asset divided, in accordance with the agreement initially entered into by the parties. There is nothing unconscionable in that. 776 Ms Marr has not established this aspect of her claim. 18.5 Was there a resulting trust? 777 The relevant principles are conveniently summarised by Beazley P in Iain v Amit Laundry Pty Ltd:640 (a) Where property has been purchased in joint names, equity presumes a trust in favour of the party who has contributed the whole of the purchase price: per Gibbs J at 255. (b) Where two purchasers contribute to the purchase price and the property is conveyed to them as joint tenants, equity presumes that they hold the equitable interest in the property in shares proportionate to their contribution: per Gibbs CJ at 246–247; Mason and Brennan JJ at 258; Deane J at 269 (c) The material time for determining the beneficial ownership of property is at the time of acquisition: per Gibbs CJ at 252; Mason and Brennan JJ at 262. The same point was made in Bloch v Bloch per Wilson J at 398 640 Iain v Amit Laundry Pty Ltd [2019] NSWCA 20 [89] (Beazley P), referring to Calverley v Green (1984) 155 CLR 242. -- 243 of 253 -- [2026] WASC 301 GETHING J Page 244 (d) The purchase price is what is paid to the vendor to acquire the property. Mortgage instalments, being paid not to the vendor but to the lender, do not constitute a payment of the purchase price: per Mason and Brennan JJ at 257(e) The entry into a mortgage constitutes a contribution to the purchase of the property as, under a mortgage, each mortgagor undertakes a joint and several liability in respect of the repayment of the mortgage: per Mason and Brennan JJ at 257–258 (f) The equitable presumptions may be displaced, rebutted or qualified by evidence of a contrary intention that is common to all contributors to the purchase price: per Gibbs CJ at 251; Mason and Brennan JJ at 261; Deane J at 269 (g) Usually, the common intention of the contributors to the purchase price is to be inferred from what the parties do or say, not their own uncommunicated state of mind: per Mason and Brennan JJ at 261; Deane J at 269–270 778 In the present case, Links Road was conveyed to the parties as tenants in common in equal shares, and not joint tenants. The starting point is that equity follows the law: each has an equitable interest co-extensive with their legal interest. So the principles expressed by Beazley P relating to joint tenants have no direct application. There could potentially be some application of resulting trust principles to the disproportion between the contribution to the purchase price and the 50% legal interest. However, any equitable presumption to this effect has been firmly displaced by the actual agreement I have found in section 9.7. Moreover, the unequal contribution of Mr Scott to the purchase price of $13,150 was discharged by the agreement made in relation to Home Loan 2 (see section 9.9). So there can be no basis for the imposition of a resulting trust on the basis of unequal contributions to the purchase of the property held in common in equal shares. 19. How should the funds in court be apportioned? 19.1 Approach 779 As set out in section 10.1, the power to distribute the proceeds of sale is a statutory discretion. The common law and equitable principles relating to common ownership of land provides an appropriate basis to exercise this discretion. However, in this case I add the principles by which equitable damages are assessed for a breach of a fiduciary duty. 780 I begin with the identification and allocation of actual inflows and outflows of funds in relation to Links Road (section 19.2). From this I -- 244 of 253 -- [2026] WASC 301 GETHING J Page 245 derive the figure by which, in this case, Mr Scott has in fact contributed more to the maintenance and preservation of Links Road than Ms Marr (Inflow Outflow Balance). This is in substance a common account. 781 I then consider the adjustments that need to be made to Inflow Outflow Balance due to the various other claims made by each party. At this point, I bring to account the Trial Expenses (section 19.3). 782 The analysis in sections 19.2 and 19.3 leads to the Final Adjustment Amount. The Final Adjustment Amount is then brought into account in the distribution of the funds in court. 783 In closing submissions, Mr Scott submitted that the amount in court should be distributed:641 (a) $233,594.56 to Ms Marr; and (b) $475,109.00 to Mr Scott. I have accepted most of the arguments of Mr Scott going to the account. However, the occupation fees and amount relating to equitable damages mean that he receives less than he has submitted he should receive. 784 In closing submissions, Ms Marr submitted that the entire amount in court should be distributed to her and that, in addition, Mr Scott pay her the shortfall. This is on the basis that:642 (a) as a starting point, Ms Marr's base entitlement is 62.4% of the sale price ($579,364.19) and Mr Scott's to 37.6% ($349,104.06); (b) Mr Scott is liable for the difference between actual rent received and market rent from 2009 to 2014 on the basis Links Road was a residential tenancy and 2014 to 2023 on the basis that it was a commercial tenancy, in the amount of $203,808.07; (c) Mr Scott has not caught up on the shortfall of $11,000 from his initial contribution to the purchase price; (d) Ms Marr disputes that Mr Scott is entitled to the amounts he withdrew from Streamline 1 and Streamline 2 to pay his Visa card; 641 Defendant’s Closing Submissions, Annexure B. 642 Plaintiff’s Closing Submissions, Schedule. -- 245 of 253 -- [2026] WASC 301 GETHING J Page 246 (e) there is a net adjustment of $314,297.69 based on disputed transactions and withdrawals; (f) Ms Marr is entitled to compound interest of $400,089.94 on the amounts she is owed; (g) Ms Marr's final proposed entitlement is $1,293,751.82; (h) when Mr Scott's base entitlement in (a) is deducted from the amount in (f), the balance is $928,468.25; (i) Ms Marr is entitled to all the funds and court; and (j) Mr Scott is liable for the shortfall. For the reasons I have set out in detail, I do not accept any of the propositions in (a) to (j). 19.2 Actual inflows and outflows Initial contributions 785 In section 9.7, I found that: (a) Ms Marr's initial cash contribution was $34,014; and (b) Mr Scott's initial cash contribution was $7,702: Rent 786 In Part 12 I found that the that the total rent in fact received was $157,796, of which each of Ms Marr and Mr Scott is entitled to 50%, being $78,898. Contributions 787 In section 14.1, I found that Mr Scott paid $1,515 by for expenses from the Scott & Associates cheque account. 788 In section 14.3 I found that: (a) Ms Marr made net contributions through Streamline 1 of $18,688; (b) Mr Scott made net contributions through to Streamline 1 of $90,656; (c) Ms Marr made no contributions through Streamline 2; -- 246 of 253 -- [2026] WASC 301 GETHING J Page 247 (d) Mr Scott made net contributions through Streamline 2 of $74,267; and (e) Mr Scott made net contributions through his visa account of $54,342. 789 In section 15.3, I found that (a) Ms Marr made direct contributions to Home 1 of $3,464; (b) Ms Marr made direct contributions to Home 2 of $12,160; (c) Mr Scott made a direct contribution to Home Loan 1 of $7,228; and (d) Mr Scott made no direct contributions to Home Loan 2. Mortgage expenses 790 In section 15.3 I also found that: (a) the total mortgage repayments made on Home Loan 1 were $242,364; (b) the total mortgage repayments made on Home Loan 2 were $55,794; and (c) each of Ms Marr and Mr Scott is liable for half of the total amounts paid. Other expenses 791 In section 16.3, I found that Mr Scott that Mr Scott paid the following expenses in relation to Links Road set out in the second column in the table which follows. In section 17.7 I then reduced the amounts for all expenses aside from repairs and general changes in lieu of equitable compensation. The result was: Category Amount able to be claimed Deduction in lieu of equitable compensation Net amount able to be claimed (rounded) House insurance $ 9,832.50 $3,535 $6,298 Water Corporation $23,363.51 $7698.64 $15,665 Land tax $ 4,935.40 $3,568 $1,367 Melville City $30,989.90 $7,873.03 $23,117 -- 247 of 253 -- [2026] WASC 301 GETHING J Page 248 Council Repairs and general charges $32,208.20 N/A $32,208 Inflow Outflow Balance 792 The inflows comprise: (a) the proportion of rent which Mr Scott in fact received ([584]); (b) the proportion of rent which Ms Marr was entitled to receive, but did not ([584]); (c) the additional contributions in fact made by each party; (d) the proportion of expenses which Mr Scott in fact paid; and (e) the proportion of expenses which Ms Marr is required to contribute. 793 The net result of balancing both parties' inflows and outflows is that Mr Scott paid $167,384 more than Ms Marr to maintain Links Road over the nearly 25 years the two of them owned it (which I have referred to as the Inflow Outflow Balance): Item Total Marr Scott Inflows Initial cash contributions $34,014 $7,702 Expenses paid from Scott & Associates account $1,515 Rent in fact received $157,796 $78,898 $78,898 Contributions to Streamline 1 $18,688 $90,656 Contributions to Streamline 2 $74,267 Contributions to visa card $54,342 Direct contributions to Home Loan 1 $3,464 $7,228 Direct contributions to Home Loan 2 $ 12,160 Total Inflows (TI) $147,224 $314,608 Outflows Home Loan 1 $242,364 $121,182 $121,182 Home Loan 2 $55,749 $27,874 $27,874 Water charges $15,665 $7,832 $7,832 Council Rates $23,117 $11,558 $11,558 Insurance $6,296 $3,148 $3,148 Land tax $1,367 $684 $684 -- 248 of 253 -- [2026] WASC 301 GETHING J Page 249 Repairs and general charges $32,208 $16,104 $ 16,104 Total Outflows (TO) $188,382 $188,382 Balance of Inflows and Outflows (TI - TO) (-$)41,158 $126,226 Inflow Outflow Balance $167,384 19.3 Adjustments to the Inflow Outflow Balance Trial expenses 794 In Part 8 I recorded that: (a) the original amount paid into court on 27 June 2023 was $865,639.86; (b) each party received $70,000 ($140,000 paid out of court); (c) Ms Marr was allocated, but had not received, Trial Expenses of $4,842 ($4,841.64 rounded) out of the funds in court; (d) Mr Scott was allocated and has received $16,936 ($16,936.31 rounded) on account of Trial Expenses; and (e) as at the date of judgment, the balance remaining in the Supreme Court is $708,703.55 ($865,639.86 - $140,000 - $16,936.31). 795 The payment out of trial expenses was on the basis that the parties had liberty to apply as to the final attribution of this cost. Counsel for Mr Scott addressed the issue in closing submissions. Ms Marr did not. However, to assist the parties, I will express my preliminary view. 796 My preliminary view is that the way the Trial Expenses should be brought account is that: (a) the amount in fact paid out of court to Mr Scott on account of Trial Expenses should be added back to the balance remaining in court, making the total $725,639.86 ($708,703.55 + $16,936.31); -- 249 of 253 -- [2026] WASC 301 GETHING J Page 250 (b) the amounts which have allowed each party should be removed from the analysis so that each party can pay their expenses from their allocation; and (c) the amount actually paid to Mr Scott is then to be reduced by the amount of $16,936.31 which is has already received. 797 Mr Scott claims he is entitled to be paid out an additional $5,811.05 from the monies in court. These costs were incurred in obtaining the transcript for the resumption of trial on 17 - 19 June 2026.643 Given the approach I have taken of grossing out of the money in court, I do not need to determine this claim. Mr Scott can pay this invoice out of the funds he ultimately receives. 798 I will give the parties an opportunity to be heard on this issue. 799 The payment out of the $70,000 to each party should be excluded from the final analysis as it is neutral. Occupation fees 800 In section 13.3, I found that Ms Marr is entitled to an occupation fee of $38,205. Equitable damages 801 In section 17.7, I found that Ms Marr was entitled to equitable damages over and above any occupation fee of $46,336. Costs order 802 Mr Scott claims the costs he is entitled to pursuant to the sale order made by Master Sanderson on 17 November 2022. The costs order was that: The Plaintiff pay the Defendant's costs of the action referred to in order 1 and the costs of the application to be taxed if not agreed. The action in order 1 was Mr Scott's counterclaim for the sale of Links Road. 643 Defence Closing Submissions, page 31. -- 250 of 253 -- [2026] WASC 301 GETHING J Page 251 803 Counsel for Mr Scott submits that the following is the calculation of the scale costs pursuant to the items of the relevant determinations:644 Memorandum of Appearance (Item3(a)) $99.00 Defence -Sale Action (Item 3(b)) $2475.00 Counterclaim -Sale Action (Item 3(c)) $2475.00 Summary Judgment Application (10(a)) $8,000.00 Court Filing Fee SJ application (Item 36) $394.00 Landgate Title Search Links Road (Item 36) $ 28.20 Total $13,471.20 804 Ms Marr does not dispute this costs order. However, she disputes the recovery of these costs from the 'trust fund'. She says that these costs stand as a 'separate cost order and is properly set off against [her] ultimate entitlement, not paid from the fund before distribution'.645 805 In my view, the costs order is properly set off set off against Ms Marr's ultimate entitlement to the funds in court at this stage. 806 As to the amount, I do not allow any costs at this stage in relation to the Defence (Item 3(b) above). These costs should follow the merits of the balance of the claim. I allow the other costs set out above in relation to the counterclaim and sale. The amounts claimed are within the range of what would have been allowed on a taxation. The total amount is $10,996 ($10,996.20 rounded). Final Adjustment Amount 807 The net result is that, of the funds remaining in court, Mr Scott is entitled to $92,759 more than Ms Marr (which I have referred to as the Final Adjustment Amount). Item Marr Scott Inflow Outflow Balance $167,384 Occupation Fee $ 38,205 644 Legal Profession (Supreme and District Courts) (Contentious Business) Determinations 2020 (WA) and Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA). 645 Plaintiff’s Reply Submissions, par 82. -- 251 of 253 -- [2026] WASC 301 GETHING J Page 252 Equitable damages $ 46,336 Costs from the sale order $10,996 Total $84,511 (A2) $178,380 (A1) Final Adjustment Amount (A1 - A2) $93,869 19.4 Distribution of the funds in court 808 In section 9.7 I found that Ms Marr had not proven the existence of a common intention trust. In section 18.4, I found that there was no basis for the court to impose a constructive trust or resulting trust. These findings mean that there is no basis to depart from an initial allocation of the sale proceeds based on Ms Marr and Mr Scott being tenants in common in equal shares. So after adjustment, each is entitled to 50% of the funds in court. 809 I subtract from the grossed up amount in court ([796]) the Final Adjustment Amount to get $631,770.86 ($725,639.86 - $93,869). Each of Mr Scott and Ms Marr is entitled to 50% of this amount, being $315,885.43 ($631,770.86 x 50%). Mr Marr is entitled to $315,885.43. Mr Scott is entitled to this amount, plus Final Adjustment Amount, less the amount he has ready received for costs, giving $392,818.12 ($315,885.43 + $93,869 - $16,936.31). These two amounts total $708,703.55, which is the amount currently in court ($315,885.43 + $392,818.12). 20. What final orders are appropriate? 810 If both parties accept my preliminary view as to the treatment of the Trial Expenses, the appropriate final orders would be: 1. The plaintiff be paid $315,885.43 out of the funds in court. 2. The defendant be paid $392,818.12 out of the funds in court. 3. The balance of the action be dismissed. 811 As I have said, I will hear from the parties as to the way the Trial Expenses should be brought to account. 812 I will also hear from the parties as to costs. -- 252 of 253 -- [2026] WASC 301 GETHING J Page 253 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. OB Associate to the Hon Justice Gething 5 AUGUST 2026 -- 253 of 253 --