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[2009] NSWSC 1430
plaintiff. Declarations and orders: (1) Defendant holds his undivided one-half interest in the Coutts Crossing land on trust absolutely for the plaintiff; (2) Defendant to execute and deliver a registrable...
The plaintiff bought land using the proceeds of sale of her own property but registered title in both her and the defendant's names. The court found she provided the entire purchase money and rejected the defendant's evidence of any agreement or entitlement. As a result, the defendant's registered half-share is held on resulting trust for the plaintiff and he must transfer it to her. A mortgage over the land secured advances that were applied in differing proportions to benefit each party; because the land was beneficially owned by the plaintiff, she is entitled to an indemnity from the defendant for the portion of the mortgage debt that funded his benefit (61.75%). The court also declared a ute/truck to be held for the plaintiff and apportioned two chattels two-thirds to one-third between the parties. Costs were awarded to the plaintiff (see [21]-[38]).
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The plaintiff, Cheryl Anne Burch, sold a Queensland property (Cedar Creek) in October 2005 and received net proceeds of approximately $359,932.29 ([4.4]). In November 2005 she and the defendant, Anthony Cone, contracted to buy a 60-acre property at Coutts Crossing for $225,000; settlement occurred on 16 December 2005 and title was recorded in both their names as joint tenants ([4.5]). The plaintiff later had the joint tenancy severed to tenancy in common in November 2007 ([4.6]).
The plaintiff asserted that she alone provided all purchase moneys for the Coutts Crossing acquisition, contending that legal title appearing in joint names did not reflect a beneficial interest in the defendant. She sought declarations that the defendant held his registered one-half share on resulting trust for her and an order that he transfer that registered interest to her.
Shortly after purchase, the parties obtained a loan from Secure Funding Pty Ltd secured by mortgage over the Coutts Crossing land. The loan advanced initially $50,000 and was later increased to $80,000 ([4.8]). The parties admitted (and documentary evidence established) that the mortgage proceeds were applied in part for the plaintiff's exclusive purposes ($16,554), in part for joint purposes ($28,088) and in part for the defendant's exclusive purposes ($35,358) ([4.9], [28]). The parties also disputed ownership of certain chattels (truck, diesel generator, brick-making machine), and admissions as to funding of those items were made by the defendant ([33]-[36]).
At trial Justice Barrett accepted the plaintiff's case that she had supplied the whole of the purchase money for the Coutts Crossing land and rejected the defendant's competing assertions, both an asserted constructive interest arising from his work at Cedar Creek and an alleged oral bargain that he would receive half the new land ([11]-[21]). The court held that a resulting trust arose in favour of the plaintiff; ordered the defendant to transfer his registered interest to her; declared the truck to be held for the plaintiff; declared the generator and brick-making machine to be held two-thirds for the plaintiff and one-third for the defendant; and ordered the defendant to indemnify the plaintiff for 61.75% of the mortgage liability, being the proportion of the advances that had in fact benefited him ([21]-[38]).
Two principal equitable doctrines determined the outcome.
The court applied the well-established principle that where one person provides the whole purchase moneys and title is taken in the names of that person and another, a resulting trust arises in favour of the person who provided the purchase moneys unless a contrary intention is shown ([22]). The plaintiff's evidence established that the Coutts Crossing land was bought with the proceeds of her Cedar Creek sale and that she provided the purchase funds. The defendant failed to prove any contrary intention. His evidentiary attempts, an affidavit asserting an oral bargain that he would get half and later statements inconsistent on timing, were found unreliable and unsatisfactory ([14], [18]-[21]). The court explicitly rejected the alleged oral promise ([21]). Absent probative evidence of an intention to give the defendant a proprietary interest, the resulting trust operated in the plaintiff's favour ([22]-[23]).
The second major equitable principle applied was the equity of exoneration or indemnity where property beneficially owned by one person is charged to raise moneys that benefit another. The court relied on the formulation quoted from Parsons v McBain which states that where a person charges his property to raise money to pay the debts of another or to otherwise benefit that other, and the money borrowed is applied for that purpose, an equity of exoneration arises in favour of the owner ([30]). Here the mortgage was over land beneficially owned by the plaintiff, the mortgage proceeds were applied to benefit the defendant to the extent of 61.75% (traced by admissions and bank statements), and accordingly the plaintiff was entitled to be indemnified by the defendant for that proportion of all monies secured by the mortgage, including interest ([31]-[32]).
Ancillary findings flowed from admissions and documentary identification of withdrawals from a joint bank account which permitted allocation of particular sums to each party. In respect of chattels, the court treated the plaintiff as having provided two-thirds of purchase moneys for the generator and brick-maker and the defendant one-third; the $5,000 cheque paid for the brick-making machine was attributed to the defendant ([26], [34]-[36]). The court therefore declared proprietary interests in those proportions ([36], [38.5]).
The court also considered, and rejected, a constructive trust argument grounded on the defendant's work at Cedar Creek. Giumelli v Giumelli was cited for the proposition that a constructive trust requires unconscionability usually based on some promise or encouragement and reliance; the circumstances here, defendant an unemployed lodger who improved the premises for his own benefit and who paid no rent, did not support such an inference ([11]-[13]).
Finally, the court refused the defendant leave to withdraw an explicit admission in an affidavit that he paid no rent or board while living at Cedar Creek. That admission was treated as deliberate and the attempted retraction unconvincing, which affected the credibility of parts of his evidence ([5]-[9]).
Before: The decision applies established equitable principles. The resulting trust principle (Calverley v Green) and the doctrine of equity of exoneration (as recognised in Parsons v McBain and earlier authorities) were already part of Australian law. Constructive trust principles as articulated in Giumelli also formed the background.
After: The judgment applies these existing principles to the particular fact pattern where title is taken in joint names but purchase money is provided solely by one party, and where mortgage advances secured by that property were applied predominantly to benefit the other party. The case reinforces the following practical points:
It does not change doctrine but is a clear application of established authorities to mixed-family-like but non-family situations. The judgment is particularly instructive on evidence and tracing in small-scale domestic/commercial transactions and on the treatment of late or inconsistent affidavit evidence.
"A trust arises in favour of the person who provides the whole of the purchase moneys when the property is conveyed into the joint names of that person and another: Calverley v Green" ([22]).
"It is not possible to find that the plaintiff made to the defendant the representation or promise referred to at paragraph [14]" ([21]).
Quoting Parsons: "The equity of exoneration is an incident of the relationship between surety and principal debtor..." ([30]).
"No such findings can be made in this case. ... There is nothing in the evidence to suggest any basis for an expectation on his part that he should, by his labours, earn an interest in the property." ([13]).
"The defendant must indemnify the plaintiff against 61.75% of all liabilities to the mortgagee in respect of the total advances of $80,000" ([32]).
Patterns likely to attract the same outcome:
A purchaser uses their own funds to buy land but registers title in the name of themselves and another person (family member, partner, friend, or lodger) without documentary evidence of an intention to benefit the other. Resulting trust presumption will apply; absent rebuttal, the beneficial owner will be declared ([22], [21]-[23]).
A sole beneficial owner charges that land to borrow money, and the loan funds are applied in part or whole to benefit a co-borrower or co-registered person. The owner can claim an equity of exoneration and seek an indemnity proportionate to the benefit conferred ([30]-[32]).
Chattels purchased from mixed sources where bank records, ATM card identifications, or admissions allow tracing and allocation of contributions will be apportioned between parties in accordance with those contributions ([25]-[28], [34]-[36]).
Situations where the defendant performed work on the owner's prior property do not automatically create a constructive trust. There needs to be evidence of inducement, promise or conduct making it unconscionable for the owner to deny an interest ([12]-[13]).
This deep dive is confined to the single judgment of Barrett J in Burch v Cone and the authorities cited therein. The judgment applies (and cites) Calverley, Giumelli and Parsons in a straightforward manner. Users researching subsequent treatment should search case law databases for decisions citing Burch v Cone for its application of resulting trust and exoneration principles. The decision is fact-specific and will be cited as persuasive authority in similar fact patterns involving sole-funder purchasers who placed title in joint names and later seek to recover beneficial ownership and indemnity.
Threshold for rebutting the resulting trust: The case underscores that the “contrary intention” to rebut the resulting trust must be proved by the party relying on it. How much contemporaneous documentary or witness evidence is necessary in closer cases remains fact-dependent. Burch v Cone shows courts will scrutinise informal explanations and late affidavits ([21], [10], [18]-[20]).
Quantification of benefit from mortgage proceeds: The court allocated a precise percentage (61.75%) based on admissions and traceable withdrawals ([27]-[28]). In more complex or less well-documented loan uses, apportionment could be contentious; the decision provides a practical example but not a template for difficult tracing scenarios.
Constructive trust thresholds in lodger contexts: The court rejected the defendant’s constructive trust claim where he was a lodger who performed improvements without rent obligation and without evidence of a promise or inducement ([11]-[13]). Whether different facts (e.g. clear promises, significant capital improvements with evident expectation) would produce a different result is unresolved by this case.
Interaction with unconscionable conduct and statutory remedies: This case proceeds in traditional equitable restitution and trust principles. Where conduct might also engage statutory unfairness or unconscionability provisions (consumer or contract law), how these remedies interact with proprietary claims was not considered and remains open.
Timing and remedy for indemnity: The court ordered indemnity for 61.75% of the mortgage liability but did not elaborate on mechanisms for enforcement if the mortgagee seeks sale or enforcement. Practical consequences (possession, sale, priority of indemnity vis-à-vis mortgagee) require attention in future cases.
Readers should review the cited paragraphs for primary source language: resulting trust principle at [22], rejection of oral bargain at [21], and the indemnity reasoning at [30]-[32].
CATCHWORDS : EQUITY - resulting trust - where property purchased with money belonging solely to plaintiff but title taken by plaintiff and defendant jointly - no relationship etween the parties - whether plaintiff agreed to give defendant an interest in the property - held she did not - resulting trust for plaintiff of interest held by defendant - EQUITY - exoneration - where property found to be beneficially owned by plaintiff mortgaged to secure loan made to plaintiff and defendant - where loan moneys applied in part for plaintiff's sole benefit in part for defendant's sole benefit and in part for their joint benefit - plaintiff entitled to be indemnified by defendant for proportion of liability under mortgage
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 CASES CITED : Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120
PARTIES : Cheryl Anne Burch - Plaintiff Anthony Charles Cone - Defendant
COUNSEL : Mr A J McInerney/Mr D J Barnett - Plaintiff Mr P R Glissan - Defendant
SOLICITORS : Foott, Law & Co - Plaintiff McNamara James & O'Connor - Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
5861/08 CHERYL ANNE BURCH v ANTHONY CHARLES CONE JUDGMENT 1 The claims advanced by Cheryl Anne Burch ("plaintiff") relate mainly to a property of some 60 acres at Coutts Crossing, near Grafton. She and Anthony Charles Cone ("defendant") are registered as the proprietors of the property as tenants in common in equal shares. They were initially registered proprietors as joint tenants but the plaintiff took action to sever the joint tenancy. 2 The plaintiff claims a declaration that the defendant holds his undivided one-half share in the property upon trust for her and an order that he transfer that interest to her. 3 It is the contention of the plaintiff that she provided the whole of the purchase moneys for the Coutts Crossing property, with the result that there was, from the outset, a resulting trust of the defendant's interest in favour of her. It is relevant to note immediately that the parties are not married to one another and have never been in a relationship of de facto marriage; nor is there any other family relationship between them. 4 The process of fact-finding is assisted in this case by a large number of admissions made by the defendant. The following facts are uncontroversial: 1. In 2002, the plaintiff purchased a property at Cedar Creek near Tambourine Mountain in Queensland. She purchased this property with her own money. 2. In about April 2004, the defendant and three of his children became boarders or lodgers at the Cedar Creek property. 3. The defendant performed various work around the house. 4. The plaintiff sold the Cedar Creek property in October 2005 for $365,000. She received from the sale cheques totalling $359,932.29. 5. On 21 November 2005, the plaintiff and the defendant entered into a contract for the purchase of the Coutts Crossing property for $225,000. Settlement took place on 16 December 2005. The plaintiff and the defendant took title as joint tenants. 6. The plaintiff is not clear as to the reason for joint tenancy. She thinks that she told Mr Flynn (the solicitor who acted on the purchase) that she did not want the property to go to the defendant if she died. She had that situation rectified when she consulted the solicitor who acted in these proceedings and became aware that the situation was one of joint tenancy. She then took steps to have the title converted from joint tenancy to tenancy in common. This conversion occurred on 8 November 2007. 7. In about late 2007, the plaintiff moved to a property at Pottsville. She has not lived at the Coutts Crossing property since that time. 8. On or about 7 February 2006, the plaintiff and the defendant borrowed $50,000 from Secure Funding Pty Ltd and mortgaged the Coutts Crossing property as security. On or about 16 January 2007, the loan was increased to $80,000. 9. The borrowed moneys were spent partly (as to $24,090.42) for the joint purposes of the plaintiff and the defendant, partly (as to $16,554) for the plaintiff's separate and exclusive purposes and partly (as to $18,355.58) for the defendant's separate and exclusive purposes. 5 The defendant also admitted that, during the time he and his children were boarders or lodgers at Cedar Creek, he had paid no money as rent or board to the plaintiff. His counsel applied at trial for leave to withdraw that admission. Evidence was received from the defendant on that matter. It was accepted that my decision on the question of withdrawal should be given as part of my judgment on the proceedings as a whole. I therefore digress to deal with that matter. 6 The defendant's admission that he paid the plaintiff no money as rent or board while he and his children lived at her Cedar Creek house was clearly and expressly made by affidavit. It was submitted, however, that "there may have been a misunderstanding"; and it was for that reason that counsel for the defendant was permitted to lead evidence from him. The evidence in chief, so far as relevant was: "Q. I have just taken you through her affidavit where she said, 'Tony did not pay any monetary sum as board'. I have drawn to your attention the fact that you have agreed with that in your affidavit and I am asking you now do you still agree with that? A. No, I don't.
Q. Why did you agree with that fact in your affidavit of 5 August 2009? A. Because I had no records to prove that, so I didn't want to - I just couldn't prove - all my paperwork's been lost, so, yeah. I've got no reason why I've got no evidence to prove that bar that my records have been lost and there was a complication for Cheryl to be acknowledging she was accepting rent.
Q. Did you pay board or not? A. Yes, I did." 7 When the defendant was cross-examined on this aspect, it was pointed out to him that he had said in a later affidavit that he had paid $100 per week board in cash and that, if that were so, the matter of lack of written records and loss of "paperwork" on which he relied as a basis for having made the admission was simply irrelevant and in no way explained why he had said something in his first affidavit that he sought to retract in his second. 8 The admission, contained as it is in an affidavit prepared by a solicitor, must be taken to have been made on advice and to have been deliberate. It is quite clear. The basis on which it is attempted to withdraw it is entirely unconvincing. The application to withdraw came, moreover, after the trial had begun. All these factors lead me to exercise the relevant discretion by refusing the application for leave to withdraw the admission. 9 To the facts already recited may be added, therefore, the fact that the defendant paid no money as rent or board to the plaintiff while he and his children were living at her Cedar Creek house. It is accepted that the defendant contributed to the cost of electricity and other utilities, but that is of no relevance to the matters before me. 10 It is also possible to add a fact that was agreed at trial, namely, that documents produced on subpoena by Mr Flynn and his firm do not contain any documents recording any instructions as to why the Coutts Crossing property was purchased by the plaintiff and the defendant in joint names. I might add that, when approached by the solicitor for the defendant, Mr Flynn declined to make any statement in relation to the circumstances of the acquisition of the property. 11 Against this factual background, I turn to a contention of the defendant to the effect that he had an entitlement to part of the proceeds of the sale of the Cedar Creek property and therefore the moneys outlaid on the purchase of the Coutts Crossing property. That alleged entitlement is said to have arisen because the defendant did work on the Cedar Creek property. It is clear that he did attend to some repairs and maintenance and also made some improvements. There is a dispute as to exactly what he did and the extent, if any, to which it enhanced the property. For reasons I am about to explain, I do not need to decide this. 12 As is illustrated in Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101, a person who works on developing and improving the property of another may thereby come to have an interest in the property by reason of constructive trust. But this will be so only where it would be unconscionable for the owner of the property to retain unqualified enjoyment of the improved property. A finding to that effect will usually depend on some form of inducement or encouragement by the property owner and reliance thereon by the other party in undertaking the improvements. 13 No such findings can be made in this case. The defendant was an unemployed pensioner with time on his hands while living at Cedar Creek. Because the plaintiff's house had become the home of himself and three of his children, he had an incentive of his own to make it a more pleasant place to live. Because he paid no rent or board to the plaintiff, it was reasonable that he give her benefits in kind by way of work on repairs, maintenance and improvements. There is nothing in the evidence to suggest any basis for an expectation on his part that he should, by his labours, earn an interest in the property. 14 The defendant also bases his claim to an interest in the Coutts Crossing property on an alleged oral contract. I quote from his second affidavit: "When Cheryl sold her Cedar Creek property, we had a conversation in words to the effect, Me: 'I want to be paid for all my work here. I want $75,000.00 from the sale.' Cheryl: 'If I pay you, I won't be able to buy Kangaroo Creek [ie, the Coutts Crossing property]. Are you prepared to come in with me as partners in Kangaroo Creek? Since you know how to build houses with mud bricks, I want you to come in with me. I'll give you half the land. At the same time you can help me build a house and you can build one for yourself.' Me: 'Okay'." 15 Later in the same affidavit, the defendant refers to a subsequent conversation in Mr Flynn's office in which he said to the plaintiff, "I'd sooner take the cash out". 16 The plaintiff denies any conversations in these terms. She explained in cross-examination that, before she had decided to sell Cedar Creek but at a time when she was thinking of doing so, she came to a loose arrangement with the defendant that if she in due course sold Cedar Creek and then bought vacant land, the defendant would build two mud brick houses on that land, one for her and one for himself and, once he had done so, she would "see how good the house was" and "what land he got would depend on" that - in other words, she would give him part of the new land as a reward for building a house for her, but only after the house had been completed. She said that this was the reason why "his name was put on the deed so that later on I didn't have to spend the expense of putting it on the deed later". 17 She waited two years. No mud brick houses were built. She moved to Pottsville in late 2007 and later commenced these proceedings. 18 There are several unsatisfactory aspects of the defendant's evidence in paragraph [14] above. First, that evidence was given in the defendant's second affidavit. He could give in cross-examination no reason why something of such significance to the case he sought to make had not been included in the first affidavit. It was, he said, "just a slip of the memory or timing". 19 Second, the defendant resiled in cross-examination from the proposition that the conversation alleged by him took place "when Cheryl sold her Cedar Creek property" (these being the words in his affidavit). It was put to the defendant in cross-examination that the conversation was a fabrication. This question and answer followed: "Q. When is it you say that this conversation in paragraph 6 of your affidavit of 8 September 2009 took place? A. Prior to the renovation work being done." 20 After the defendant had been reminded of the timing stated in his affidavit, the cross-examination continued: "Q. Miss Burch hadn't sold the Cedar Creek property before the renovation work was done had she? A. No she hadn't.
Q. And you agree don't you that the conversation in paragraph 6 occurred after the renovation work but and after she had sold the Cedar Creek property, correct? A. No, during the renovation work that conversation took place between me and Cheryl.
Q. Do you say that the conversation in paragraph 6 occurred before she sold the property or after she sold the property? A. Prior to the sale of the property."
21 With the evidence in this quite unsatisfactory state, it is not possible to find that the plaintiff made to the defendant the representation or promise referred to at paragraph [14] above. That, coupled with my earlier findings, means that the only conclusion reasonably open in relation to the money applied to purchase the Coutts Crossing property is that it was owned beneficially, as to the whole, by the plaintiff, being part of the proceeds of the sale of her Cedar Creek property in which the defendant had no interest; also that the plaintiff had not agreed, whether by way of contract or otherwise, to give the defendant any interest in those proceeds or in the other land she later bought with them. 22 The equitable principle relevant to this case is that a trust arises in favour of the person who provides the whole of the purchase moneys when the property is conveyed into the joint names of that person and another: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 245. The operation of that principle may be displaced by evidence of some different intention. It would be for the defendant to produce rebutting evidence. No different intention has been proved by the defendant. 23 The plaintiff is accordingly entitled to be recognised as the sole owner of the Coutts Crossing property and to an order that the defendant transfer his interest to her. 24 The plaintiff's next claim relates to the mortgage of the Coutts Crossing property and the funds borrowed under it. Again, there are significant admissions: see item 9 at paragraph [4] above. The sums allocated to the plaintiff, to the defendant and to their joint benefit and the subject of the admission represent, in total, all but $20,997.50 of the funds advanced under the mortgage. There is a dispute regarding the $20,997.50. 25 The sum of $20,997.50 in question was paid into an account with Bananacoast Credit Union in the names of both plaintiff and defendant. Each was separately able to operate that account. The periodic statements for the account are in evidence. It is possible to identify cash withdrawals made by the plaintiff and cash withdrawals made by the defendant. The withdrawals were made at automatic teller machines. Each of the plaintiff and the defendant had a separate ATM card. It is possible to tell from the statements whose card was used to make each cash withdrawal. 26 Another clearly identifiable withdrawal was by cheque for $5,000 in favour of "Howard Hall P/L". It is clear that this was for the purchase of a machine to be mentioned presently and therefore for the defendant's benefit. 27 Having regard to the matter just mentioned and the teller machine card identifications, it is appropriate to determine that a total of $17,000 (being the whole of the $5,000 and 75% of the remaining balance) of the $20,997.50 in dispute was applied for the exclusive use of the defendant and the balance was applied to the parties' joint use. 28 On this basis, $35,358 may be taken to have been applied for the sole benefit of the defendant, $16,554 for the sole benefit of the plaintiff and $28,088 for the joint benefit of both. If the last-mentioned sum is allocated half-and-half to the parties, the respective beneficial enjoyments are seen to be $49,402 for the defendant and $30,598 for the plaintiff. 29 The situation is therefore one in which property of which the plaintiff has been found to be the sole beneficial owner stands as security for joint borrowings which have benefited the plaintiff to the extent of 38.25% and the defendant to the extent of 61.75%. 30 The plaintiff contends that, in relation to he position as mortgagor, she is entitled to the benefit of the equitable principle to which the Full Federal Court referred in Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120: "The equity of exoneration is an incident of the relationship between surety and principal debtor. It usually arises where a person has mortgaged his property to secure the debt of another, whether or not that other has covenanted to pay the debt. However, it will also arise in a case where, although not an actual suretyship, the relationship is treated as one of suretyship. This is Lord Selbourne's third class of suretyship mentioned in Duncan, Fox & Co v North and South Wales Bank (1880) 6 App Cas 1 at 10. For the doctrine to apply in this class, the following facts will usually exist. First, a person must charge his property. Where the person is the beneficial owner of the property it will be sufficient if the charge is by his trustee. Secondly, the charge must be for the purpose of raising money to pay the debts of another person or to otherwise benefit that other person. Thirdly, the money so borrowed must be applied for that purpose. See generally Re Berry (a Bankrupt) [1978] 2 NZLR 373." 31 In this case, it has been found that the mortgage of the Coutts Crossing property to Secure Funding was a mortgage of property of which the plaintiff alone is the beneficial owner. The mortgage was undertaken to obtain moneys to be used for the benefit of the plaintiff and money to be used for the benefit of the defendant. The money obtained was used, as to 38.25%, for the benefit of the plaintiff and, as to 61.75%, for the benefit of the defendant. 32 An equity of exoneration therefore arises in favour of the plaintiff and against the defendant. In order to give effect to that equity, the defendant must indemnify the plaintiff against 61.75% of all liabilities to the mortgagee in respect of the total advances of $80,000 secured by the mortgage of the Coutts Crossing property including, of course, interest. 33 It is necessary to deal finally with the plaintiff's claim that she is the sole beneficial owner of a Nissan truck, a diesel generator and a brick-making machine. Again, there are relevant admissions. In particular, the defendant, by his defence, consents to the making of a declaration that he holds the Nissan truck on resulting trust for the plaintiff. Such a declaration will therefore be made. 34 In relation to the diesel generator and the brick-making machine, the defendant admits that (a) on or about 26 February 2006, he and his brother bought those items from Howard Hall and Wayne Seymour for about $15,000; (b) the purchase moneys were provided from the plaintiff's own funds and from moneys advanced under the Secure Funding mortgage; (c) the plaintiff borrowed $7,000 from her mother and withdrew $3,000 from her credit card. The remaining $5,000 used to purchase the brick-making machine was obtained by the defendant from the proceeds of the mortgage loan: see paragraph [26] above. 35 The correct characterisation of events with respect to the diesel generator and the brick-making machine is therefore that the plaintiff provided two-thirds of the purchase moneys from her own separate funds and that the defendant provided one-third from the mortgage loan proceeds, that is, from the 61.75% which, for reasons already stated, must be regarded as having been applied for the defendant's benefit so as to attract the requirement that he indemnify the plaintiff for 61.75% of the mortgage liability. In these circumstances, the $5,000 must be regarded as provided by the defendant. 36 In the result therefore, there should be a declaration that the defendant holds the diesel generator and the brick-making machine upon trust for the plaintiff and himself in the proportions two-thirds to one-third. 37 Because the plaintiff has been very substantially successful, there will be an order that the defendant pay her costs of the proceedings. 38 The following declarations and orders will be made: 1. Declare that the defendant Anthony Charles Cone holds the undivided one-half interest in the whole of the land in Folio Identifier 184/752810 (being Lot 184 Kangaroo Creek Road Coutts Crossing) of which he is the registered proprietor upon trust absolutely for the plaintiff.
Order that the said defendant execute and deliver to the plaintiff a transfer in registrable form of the said undivided one-half interest.
Order that the said defendant indemnify and hold harmless the plaintiff against 61.75% of all moneys secured by registered mortgage AC144547 affecting the whole of the said land in Folio Identifier 184/752810.
Declare that the said defendant holds Nissan commercial truck Queensland registration 371JGO upon trust absolutely for the plaintiff.
Declare that the said defendant holds the 125kva diesel generator and an S&S brick-making machine both purchased from Howard Hall and Wayne Seymour on or about 26 February 2006 on trust as to two-thirds for the plaintiff and as to one third for himself.
Order that the defendant pay the plaintiff's costs of the proceedings.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Burch
Cone
Declarations and orders: (1) Defendant holds his undivided one-half interest in the Coutts Crossing land on trust absolutely for the plaintiff; (2) Defendant to execute and deliver a registrable transfer of that interest to the plaintiff; (3) Defendant to indemnify and hold harmless the plaintiff against 61.75% of all moneys secured by registered mortgage AC144547 on the land; (4) Defendant holds the Nissan truck on trust absolutely for the plaintiff; (5) Defendant holds the 125kva diesel generator and brick-making machine on trust as to two-thirds for the plaintiff and one-third for himself; (6) Defendant to pay plaintiff's costs (see [38.1]-[38.6]).