Campbell v van der Velde as trustee of the bankrupt estate of Marilyn Anne Rowan, in the matter of Rowan

Federal Court of Australia|2019-11-14|Before: Mr J, Farrell J

Number of paragraphs: 194

Counsel for the Applicants / Cross-Respondents: Mr B Katekar Mr J Kennedy (9 - 11 October 2017) Ms S Chordia (31 May - 1 June 2018)

Solicitor for the Applicants / Cross-Respondents: Gillis Delaney Lawyers

Counsel for the Respondent / Cross-Claimant: Mr J T Johnson

Solicitor for the Respondent / Cross-Claimant: MCW Lawyers

ORDERS NSD 1743 of 2016 IN THE MATTER OF THE BANKRUPT ESTATE OF MARILYN ANNE ROWAN BETWEEN: NEIL COLIN CAMPBELL First Applicant

NEIL COLIN CAMPBELL AS REPRESENTATIVE OF THE DECEASED ESTATE OF COLIN MALCOLM CAMPBELL Second Applicant

CHERYL ANNE CAMPBELL Third Applicant

AND: TERRY GRANT VAN DER VELDE AS TRUSTEE OF THE BANKRUPT ESTATE OF MARILYN ANNE ROWAN Respondent

AND BETWEEN: TERRY GRANT VAN DER VELDE AS TRUSTEE OF THE BANKRUPT ESTATE OF MARILYN ANNE ROWAN Cross-Claimant

AND: NEIL COLIN CAMPBELL (and others named in the Schedule) First Cross-Respondent

JUDGE: FARRELL J DATE OF ORDER: 14 NOVEMBER 2019

The parties are to bring in short minutes of orders to give effect to these reasons within 14 days.
Costs are reserved.
If the parties cannot agree the appropriate order as to costs, they must provide brief (that is, no longer than three pages) submissions as to the order as to costs for which they contend within 14 days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The primary issues in these proceedings concern the nature and extent of interests in the land known as 19 Applecross Avenue, Castle Hill in New South Wales (often referred to as lot 1102 or No 19). The proceedings also concerned the nature and extent of interests in 25 Applecross Avenue (often referred to as lot 1105 or No 25) until concessions were made by the respondent trustee in closing submissions. 2 The respondent, Terry Grant van der Velde, is the trustee of the bankrupt estate of Marilyn Anne Rowan, appointed on 12 August 2015 along with Richard Moretti. On 1 June 2017, Mr Moretti resigned as trustee and his resignation was accepted by order of the Federal Circuit Court of Australia on 1 September 2017, leaving Mr van der Velde as the sole trustee. 3 The hearing of this matter was conducted in two tranches and the nature of the detail of the relief sought changed over the course of the hearings. At the commencement of the first tranche of hearings the Court was advised that the second applicant (Colin Campbell) was unwell and had dementia. The proceedings were conducted on his behalf by his son, the first applicant (Neil Campbell or Mr Campbell), under an enduring power of attorney, which is in evidence. 4 Colin Campbell died on 30 January 2018. Neil Campbell and his wife, Cheryl Anne Campbell (Cheryl Campbell) are the executors and principal beneficiaries of Colin Campbell's estate. Neil Campbell was appointed to represent Colin Campbell's estate in these proceedings by order made on 31 May 2018. 5 By consent, leave was granted to join Cheryl Campbell as an applicant after the first tranche of hearings. 6 Before the second tranche of hearings the parties filed a Statement of Agreed Facts and Agreed Issues in Dispute, containing a list of 20 issues in dispute. They also prepared schedules of contributions to construction and financing of the purchase and development of lot 1102 which left some matters in dispute which were the subject of rulings made at the second tranche of hearings.

BACKGROUND 7 Neil Campbell and Christopher Rowan (Mr Rowan) came to be friends through the same church in the early 1980s. Neil and Cheryl Campbell and Mr Rowan and Marilyn Anne Rowan (Mrs Rowan) became friends after their respective marriages, around 1987. When Mr Campbell started a business in 1997, which he operated through Autus Australia Pty Ltd, Mr Rowan became a part-time employee of Autus Australia and he remained an employee of that company until around February 2006. In the early days, Mr Campbell sometimes asked Mrs Rowan for business advice and she gave him some helpful information. Mrs Rowan operated a "family history business" under the name Marbract Services, being a transcription agency service with the Registry of Births Deaths & Marriages in New South Wales. 8 Around 21 July 2001, Neil Campbell and Mrs Rowan agreed that she would advance $75,000 for the payment of deposits of $25,000 each on three lots of land, being lots 1101, 1102 and 1105 in Applecross Avenue, Castle Hill. 9 Around 26 July 2001, Mrs Rowan exchanged contracts for the purchase of lots 1102 and 1105 for a purchase price of $250,000 each. Mrs Rowan paid a deposit of $25,000 on each of them. No contract was exchanged or deposit paid in relation to lot 1101. The circumstances in which that occurred are disputed. 10 Mrs Rowan was named as purchaser in the contract for lot 1102 and Neil and Colin Campbell were named as purchasers of lot 1105. 11 At that time, Neil Campbell owned and lived with his family in 18 Megan Avenue, Bankstown and Colin Campbell owned and lived in 18A Megan Avenue, Bankstown. 12 In or about mid-2001, Neil Campbell and Mrs Rowan entered into an oral agreement, the terms of which are in dispute (joint venture agreement). The disagreement relates (among other things) to whether or not lot 1105 was to be part of the joint venture agreement. The trustee's written closing submissions indicated that the trustee now accepts that lot 1105 was not part of any joint venture agreement between Mrs Rowan and Neil Campbell from 14 December 2001, when the purchase of lots 1102 and 1105 was completed. 13 On 14 December 2001, upon completion of the purchases: (1) Mrs Rowan was registered as the proprietor of a 98/100 share in lot 1102 as tenant in common with Neil Campbell as to a 1/100 share and Colin Campbell as to a 1/100 share. That was still the position as at the date Mrs Rowan's estate was sequestered on 12 August 2015. (2) Neil and Colin Campbell were registered as the proprietors of lot 1105 as tenants in common in equal shares. 14 There are three signed transfer forms in evidence relating to lot 1102 (appearing at CB 132-134) as follows: (1) At CB132 is a copy of an undated standard transfer form in relation to the transfer of lot 1102 for a stated consideration of $250,000 from PEK Holdings Pty Ltd to Mrs Rowan. It appears to be signed by Mrs Rowan and witnessed by Mr Rowan and stamped on 22 November 2001 under s 18(2) of the Duties Act 1997 (NSW) for duty paid of $2.00. This document does not appear to have been registered, since it has no dealing number. (2) At CB133 is a copy of an undated standard transfer form in relation to the transfer of lot 1102 for a stated consideration of $5,000. The transferor is said to be Mrs Rowan and the transferees are said to be Mrs Rowan as to a 98/100 share, and Neil Campbell and Colin Campbell for a 1/100 share each. The signatures of Mrs Rowan as transferor and Mrs Rowan and Neil and Colin Campbell as transferees are witnessed by a person whose name appears to be Richard Broederlow, although the surname is difficult to read. It appears to have been stamped on 10 December 2001 with payment of $62.50 duty on a dutiable amount of $5,000. This document does not appear to have been registered as it bears no dealing number. (3) At CB134 is a copy of what appears to be the same document as that at CB133, save that the date 14 December 2001 has been inserted and Marilyn Rowan's name as transferor has been struck through and PEK Holdings name inserted instead. Next to the latter alteration is a stamp which appears to be a stamp of the Office of State Revenue NSW with the words "Alteration Noted". That document appears to have been registered and bears dealing number 8214854V. 15 Except for the payment of the deposits and stamp duty in respect of lots 1102 and 1105 ($50,000 and $14,488 respectively) and loan application fees ($2,200) for an aggregate amount of $66,688, Mrs Rowan did not make payments towards to the purchase, development or construction of lots 1102 and 1105. 16 On 21 October 2002, Neil and Colin Campbell and Mrs Rowan entered into a building contract with Dennis Homes Pty Ltd to build a house on lot 1102. 17 During 2002 to late 2003, Mrs Rowan provided limited input on the dimensions, fittings and finishes for the house being built on lot 1102. In closing submissions, the trustee conceded that Neil Campbell was the person responsible for all discussions with Dennis Homes in relation to building works on both lots 1102 and 1105 and with all lenders so that, apart from being a party liable under facilities as described below, Mrs Rowan did not take an active role. 18 Mrs Rowan was a party to facilities provided by Permanent Trustee Australia Limited (PTAL) (as custodian for the Obelisk Mortgage Trust) (PTAL loan) on completion of the purchase of lots 1102 and 1105 on 14 December 2001. She was also a party to a facility with a limit of $1,658,500 provided by Suncorp-Metway Limited under a letter of offer dated 3 February 2003. Interest was capitalised on the loans from PTAL and Suncorp during the development period. The borrowers and mortgagors were as follows: (1) The borrowers under the PTAL loan were Mrs Rowan and Neil and Colin Campbell. The PTAL loan was secured over lots 1102 and 1105 together with the property owned by Colin Campbell at 18A Megan Avenue. (2) The borrowers under the Suncorp loan were Mrs Rowan and Neil and Colin Campbell. It was secured over lots 1102 and 1105 and over Neil Campbell's 18 Megan Avenue property and Colin Campbell's 18A Megan Avenue property. 19 By an email dated 4 February 2003, Neil Campbell sent Mrs Rowan a draft joint venture agreement. The 4 February 2003 email said: Hi Marilyn, Here is the joint venture agreement as discussed recently. I forwarded this agreement to Wayne Innis previously and he made some amendments resulting in the current form. As you will see, the agreement is straight forward and is meant to protect all parties. Whilst I am sure that such an agreement is probably considered unnecessary in practice, in principle it should be formalised (as we both agreed prior to the project commencing) as its intent is to protect all parties. It is important that this agreement is reviewed and signed in the next few days, prior to finalising the finance. One matter that is not identified in the agreement that we have discussed is the matter about your being a signatory to the finance. If the finance structure of the land results in one loan for all of the construction, we need to identify that your involvement is limited to Lot 1102 only. Of course, a statutory agreement removing your involvement in the finance obligations will need to be completed and forwarded to the financier to have your details removed from the finance agreement. Whilst this is really a given, we should probably formalise it anyway for the same reason we have the written agreement i.e.: to protect the individual parties concerned. Regards, Neil. 20 The draft joint venture agreement was brief, comprising eight paragraphs, the last four of which are boilerplate. It relevantly provided as follows (as written): THIS JOINT VENTURE AGREEMENT DATED February 2003 PARTIES 1. Neil Campbell of 18Megan Avenue Bankstown 2. Colin Campbell of 18A Megan Avenue Bankstown 3. Marilyn Rowan of [redacted] Menai RECITALS A. The Parties have agreed to enter into this Joint Venture Agreement ("the Agreement") to combine certain resources with view to developing land at Lot 1102 Applecross Avenue Castle Hill. B. The Parties wish to now seek to formalise a verbal agreement that they have previously entered into in respect of Lot 1102 (#19) Applecross Avenue Castle Hill. OPERATIVE CLAUSES In consideration of the mutual obligations of the parties they herewith agree as follows: 1. For the purposes of the joint venture only, and in accordance with a previous verbal agreement, Lot 1102 is to be identified as the "primary place of residence" of Marilyn Rowan. As Marilyn Rowan does not currently have a primary place of residence (i.e.: ownership of a property), Marilyn's name has been placed on title with a disproportionate percentage compared to input, in order to reduce capital gain taxation obligations. 2. In order to meet initial financier requirements, each of the Parties was required to be identified on the Title of Lot 1102. Accordingly, the current Land Titles Office identifies Lot 1102 with a joint ownership comprised of Marilyn Rowan (98%), Neil Campbell (1%) and Colin Campbell (1%). The purpose of the proportions (%) identified on title is to maximise the return at the time of disposal only and in no way reflects the return for each party. 3. As a combined effort of each of the parties named above is being undertaken to acquire, construct and dispose of the residential dwelling (of Lot 1102), the 'net return', at the point of disposal, will be in accordance with the inputs (cash, security and expenses incurred) of each of the three parties, after the costs associated with the acquisition, construction and disposal of Lot 1102 have been taken into account. Further, a "Management Fee" of $20,000 (each) is to be allocated to Marilyn Rowan and Neil Campbell to reflect the inputs associated with the acquisition, construction and disposal of Lot 1102. 4. Each party agrees to fulfill their individual obligations associated with the acquisition, construction, identification of and disposal of Lot 1102 Applecross Avenue Castle Hill, NSW. Only the primary obligations for the parties are identified below. Other obligations/ requirements may arise during the course of acquisition, construction and disposal of Lot 1102: Marilyn Rowan Cash input used in relation to the acquisition, construction and disposal of Lot 1102 Meeting the ATO 'primary place of residence' requirements for Lot 1102 to minimise capital gain tax obligations. Neil Campbell Guarantor for finance purposes in relation to the acquisition and construction of Lot 1102. Cash input used in relation to the acquisition, construction and disposal of Lot 1102 Colin Campbell Guarantor for finance purposes in relation to the acquisition and construction of Lot 1102 Mrs Rowan did not respond to the email and did not sign the draft joint venture agreement, but it is notable that her tax returns for 2002/2003, 2003/2004 and 2008/2009 which are in evidence state that her address is 19 Applecross Avenue. 21 On or about 7 February 2003, by drawdown in the sum of $562,245.06 from Suncorp, the PTAL loan and mortgage was discharged. 22 Around 23 April 2003, Bank of Western Australia (Bankwest) approved two development finance facilities. One facility was with Neil and Cheryl Campbell and Mrs Rowan with a limit of $700,000 for the purpose of refinancing the Suncorp loan and funding the development of lot 1102. The other facility was with Neil and Cheryl Campbell with a limit of $800,000 for the purpose of refinancing the Suncorp loan and funding the development of lot 1105. Both facilities were to be secured by: (1) A registered mortgage from Neil Campbell and Colin Campbell over lot 1105; (2) A registered mortgage from Neil and Colin Campbell and Mrs Rowan over lot 1102; (3) A fixed and floating charge over the assets and undertaking of Autus Australia; and (4) Joint and several guarantees and indemnities from Autus Australia and Colin Campbell. 23 On or about 16 May 2003, the Suncorp facility, then in the sum of $951,185.21, was discharged from the two loans provided by BankWest, of which $569,965.14 was discharged using the BankWest loan for lot 1102. 24 In July 2003, Mrs Rowan expressed her disappointment to Neil Campbell about no longer being kept informed about what was going on with the houses. He told her that if she wants to know, she needed to call him. After that, Mrs Rowan ceased to ask for updates. 25 Some time between August and early October 2003, Neil Campbell signed an agency agreement for the purpose of advertising and selling 19 Applecross Avenue. 26 On 25 September 2003, Neil Campbell sent to Mrs Rowan a copy of the 4 February 2003 email attaching the draft joint venture agreement and saying "This is probably a good time to formalise this. Call me so we can discuss it". 27 Neil Campbell says that, by about late 2003, his ongoing loan repayments for 19 and 25 Applecross Avenue and 18 Megan Avenue exceeded $13,000 per month and he considered that was untenable. 28 In October 2003, construction of a five bedroom house on lot 1102 was completed. 19 Applecross Avenue was placed on the market with an asking price of $1.35 million. 29 In late 2003, an offer was made to purchase lot 1102 for $1.22 million and Neil Campbell rejected that offer without discussing it with Mrs Rowan. Neil Campbell says he discussed it with the estate agent. Mrs Rowan says that when Neil Campbell told her of the offer, he said that he was advised to reject it by the estate agent and she accepted that. 30 In early 2004, another purchase offer was made, for $950,000 and it was rejected without reference to Mrs Rowan. Neil Campbell says that he rejected it because he thought it would produce a larger loss on lot 1102 than he was expecting at that time. The property remained on the market until August 2006 and no further offers were received until about August 2006. 31 In early 2004, construction of a seven bedroom house on lot 1105 was completed. The house included two bedrooms in a self-contained area of the building. At some time during 2004, the Campbells occupied the house. 32 On 23 June 2004, Neil and Colin Campbell exchanged contracts for the sale of 25 Applecross Road. On 7 October 2004, they completed the sale and shortly thereafter the BankWest loan for lot 1105 was discharged. BankWest discharged its mortgage over lot 1102 insofar as it encumbered lot 1105, but the registered mortgage over lot 1102 remained as an encumbrance on lot l102 and BankWest discharged its mortgage over lot 1105. 33 In October 2004, the Campbells occupied 19 Applecross Avenue and they have remained in occupation since that date. The Campbells paid all outgoings related to it. 34 Mrs Rowan was paid an aggregate amount of $50,000 in late October 2004. There is a dispute as to whether this was repayment of amounts advanced by her for the deposits on lots 1102 and 1105 or a loan in that amount from Autus Australia. Mrs Rowan says that her financial position did not improve between July 2001 and early 2004, that she had invested all of her cash into the properties and her business was only providing a basic income, which appears to be confirmed by her tax returns for that period which are in evidence. Accordingly, she was not in a position to contribute to interest expenses. She also had not been provided with information about expenditure on the basis of which she might assess any offers for 19 Applecross Avenue. 35 The trustee relies on a document which purports to be a loan agreement. It appears to be dated 15 November 2005 and bears the signatures of Neil Campbell (for Autus Australia) and Mrs Rowan and to have been witnessed by Autus Australia's accountant, Robert H Simpson (Mr Simpson). Although it is now the evidence of both Neil Campbell and Mrs Rowan that the payment of $50,000 was in repayment of the deposits (although Mrs Rowan characterises it as an advance on repayment of her contribution pending the sale of lot 1102 and Neil Campbell characterises it as repayment of a loan for the deposits), the trustee presses its characterisation as a loan from Autus Australia to Mrs Rowan on the basis of the purported loan agreement, which Mrs Rowan agrees she signed, and a statutory declaration sworn by Mr Simpson on 11 October 2011. The trustee also relies on correspondence between Mr Campbell and his lawyers with Mrs Rowan's lawyers from December 2008 to 2015. 36 The express terms of the purported loan agreement are (as written): LOAN PURPOSE Residential Construction in Applecross Avenue Castle Hill, NSW. LOAN AMOUNT Drawdown payments will be made as requested. REPAYMENT REQUIREMENTS The minimum loan fee (interest) will be calculated after the end of the financial year, or end of the loan, whichever comes first, payable by the end of the following financial year. Any interest not paid by this time, will be capitalised, (proportionally reducing the total loan amount availability) not exceeding the maximum loan amount. TERM OF LOAN 5 Years - commencing from time of initial drawdown. FEES (INTEREST RATE) The fees for this loan are comprised of a rate of interest, calculated from the average of the Standard bank Variable Housing Loan interest rate published by the Reserve Bank, from the commencement of the loan to the end of the financial year and subsequently, from the commencement of the following financial year to the end of the financial year or loan whichever comes first. Any other direct fees incurred will also be included. SECURITY Prior to the commencement of the loan, Neil Campbell (Director of AUTUS Australia Pty Ltd) will need to be placed on the title of the property and will be removed once the loan is repaid in full. 37 In his statutory declaration made on 11 October 2011, Mr Simpson declared that he was Autus Australia's accountant at the time the loan agreement was drawn up and completed. He went on to declare that (as written): Loan Agreement Circumstances: While in the process of completed the Financial Statements and tax returns for AUTUS Australia Pty Ltd and Mr Neil Campbell in 2004/05, I noted that a sum of money had been advanced to Marilyn Rowan from the company. In completing the accounts I advised Mr Campbell that a loan agreement should be drawn up to protect the company and to ensure that the withdrawals were not considered as a dividend by the Australian Taxation Office. A loan agreement was subsequently prepared and I reviewed and confirmed the contents of it in March 2005. 38 It is Mrs Rowan's evidence that when 25 Applecross Road was sold, she was under some financial pressure. Her business was providing only a basic income. Just after settlement she asked Neil Campbell "Can you pay me $25,000 out of the sale proceeds" and he said "I will see what I can do". The next morning Neil Campbell telephoned and said that "Cheryl and I have had a chat, and we've decided to send you $50,000" and the amount was transferred following the discussion. Mrs Rowan assumed that it came from Neil Campbell, drawing on the sale proceeds, but later learned that it came from Autus Australia. Some months later, Neil Campbell said to her "I am being audited by the ATO. My accountant has said he needs to have you sign a document to complete my accounts paperwork." Mrs Rowan says that she knew Mr Simpson by reputation as an honourable person (being a church member of some authority). She says that she signed the document at his office in Liverpool, not knowing what it was and that she was not provided with a copy, and that it may have been the loan agreement. 39 In cross-examination, Mrs Rowan insisted that the $50,000 paid on the deposits had been an investment and not a loan, that the payment made to her in October 2004 was not a loan, nor was it repayment of the $50,000 that she had put into the project, but rather, she understood the payment to be an advance on the proceeds of the project. 40 In his affidavit sworn on 18 August 2016, Mr Campbell said: 114. In about September 2004, Marilyn and I had a conversation as follows: Marilyn said: "I know that 19 Applecross Avenue has not sold and that you are to repay me for the deposits when you sell it, but as you have sold number 25, can you repay me $25,000 from the proceeds of number 25? I have no one else I can go to. I need the money for the Registry". I said: "I'll think about that and come back to you." 115. … 116. In early October 2004, at about the time of settlement of the sale of 25 Applecross Avenue, I moved out of 25 Applecross Avenue with my family into 19 Applecross Avenue. We have lived in the house at 19 Applecross Avenue since early October 2004. 117. On settlement of the sale of 25 Applecross Avenue, I banked some of the proceeds of the sale of 25 Applecross Avenue and shortly after the settlement of that sale, I made two payments by EFT to Marilyn, each in the sum of $25,000. The first of these was on 18 October 2004 (page 49) and the second was on 21 October 2004 (page 48). 118. In about late October 2004 I had a conversation with Marilyn to the following effect: I said: "I have paid you the $25,000 as requested, plus the remaining $25,000 owed. That will get the monkeys off your back." Marilyn said: "Thank you very much. I can't thank you enough". 119. A dispute arose between Marilyn and myself soon after I made the payments to which I refer in the two preceding paragraphs. As the dispute developed, through her solicitors Elliot Tuthill and later MCW Lawyers, Marilyn consistently asserted that my payments in October 2004 were made in repayment of the deposits of $25,000 each (pages 55 - 57), although Marilyn also asserted that she had some other entitlement (page 57). I disagree with that assertion. 120. The dispute between Marilyn and I regarding her "interest" in 19 Applecross Avenue was ongoing over many years, and from time to time was agitated in our respective solicitor's correspondence without ever being resolved. In his affidavit sworn on 20 June 2017, Mr Campbell sought to correct that evidence, saying: 29. … the conversations which actually occurred are in my affidavit in chief at paragraphs 114 and 118. I did not transfer the sum of $50,000 to Marilyn. I arranged two payments of $25,000 each, to which I deposed in paragraph 117 of my affidavit in chief. 30. In reply to paragraph 63, I had understood that Marilyn needed money urgently, based on the conversation between us at paragraph 114 of my affidavit in chief. The bank account in the names of Cheryl and myself at St George had insufficient funds in it at about the time of settlement of the sale of 25 Applecross Avenue to enable me to pay Marilyn $50,000. For that reason, I made two payments, each of $25,000 to Marilyn. The first payment was from a Commonwealth Bank account in the name of Autus Australia Pty Ltd, my company. A copy of the bank account statement referring to that transaction is at page 49 of exhibit "NCC 1". The second payment was from the St George bank account in the names of Cheryl and myself. A copy of the bank account statement referring to that transaction is at page 48 of exhibit "NCC 1". In his 20 June 2017 affidavit, Mr Campbell also said: 25. … although I was prepared to pay Marilyn in connection with the two $25,000 deposits, I thought about the problems which Marilyn had caused me, being the lost opportunity for me to purchase Lot 1101, additional borrowing costs due to Marilyn's delay in not completing a finance application until November 2001, and additional construction costs of about $100,000.00 and delays arising from the errors of the surveyor Marilyn recommended (Jared Hart). Due to those problems, I decided that I was not willing to sell 19 Applecross Avenue (being Lot 1102) without trying to obtain the best possible price for it. I was expecting to make a loss from the development of Lot 1102 from 2004 onwards. … 33 … I say that: (a) In the period from 2004 to about August 2006, I remained willing to sell 19 Applecross Avenue if I could achieve a good sale price, but the property had proved difficult to sell at an acceptable price; (b) By late 2006, I regarded the payments I had made to Marilyn in October 2004 in the total amount of $50,000 as having fulfilled all of my obligations to her in relation to Lot 1102, taking into account the loss making nature of the development of that property. I wanted to have Marilyn's name removed as a registered proprietor from the title to that property; (c) I did not take any legal action in 2006 to remove Marilyn's name as a registered proprietor because I understood there was a possibility that I would need to pay stamp duty to do so, and in 2006, I wanted to defer any such payment; and (d) Part of the conversation in paragraph 73 [of Mrs Rowan's affidavit] is inaccurate. In relation to a final accounting of building costs for Lot 1102 (being 19 Applecross Avenue), I did not say "I have it in my head'. I had compiled documents relating to construction costs for that property because I intended to demonstrate to Marilyn using information in those documents that the development of Lot 1102 had resulted in a loss, not a profit. On a number of occasions before the conversation in paragraph 73, I had said to Marilyn: "You are responsible for additional unnecessary costs in the project at Lot 1102." She did not acknowledge that, and changed the subject on the various occasions when we discussed it. 41 Neil Campbell sent the following email dated 2 August 2005 to Mrs Rowan (2 August 2005 email) (emphasis added): Last year, I was asked for a loan of $25,000 to go towards the registry fees. This amount was asked for because our home had just been sold. It was obvious that the financial shortfall went beyond the registry. I chose to provide an additional $25,000, as I stated at the time, "to get the monkeys off your back". My intention in providing an additional $25,000 on top the $25,000 asked for was to simply help. It was not meant to send the impression that I have an abundance of money. It has always been made clear that we do not. Previously, whenever money was asked for, it was paid back on the basis of interest, however it was only ever at the rate of interest from where the money was derived eg: home line of credit, and nothing more. I have also made a point of not asking to know the specifics of the financial circumstances of the Rowan household at any time. There has developed over time a practice of not paying the novated lease payments on a regular basis. Rather than being told when the money is to be paid, I have had to ask when the payments were to be made. Initially there was no response to the emails then a response would be received. However, when the anticipated timeframes weren't met, no explanation was forthcoming and further requests needed to be made. This is not reasonable. Essentially, these have become unofficial interest free loans. Truthfully, I would rather have a reduced interest payment on the joint housing loan. If there is to be a significant delay in payment, it is not unreasonable to anticipate being informed. The point was made, in our meeting late last year, that Chris' willingness to accept $1000 without needing to respond to emails for 3 weeks at a time was justified because I had not been consistent in paying the money monthly during the housing construction period. Yet, the reason that the money was not paid consistently was perfectly understood and communicated and compounded by the fact that no assistance was able to be provided to meet the financial requirements of the repayments of the investment property. No, I have not forgotten the money used as deposits, nor have I forgotten the drawings against and the security of our house and my father's home. I should quickly add, that approximately $65,000 was added to the cost of our house in Castle Hill during the difficulties arising from the refinancing to enable the construction to continue on the investment property as it was prioritised. There also seems to be a view that I am fully responsible for the repayments for the investment property. This is certainly untrue. When our home in Castle Hill was sold, we moved into the investment property, as it was the only sensible thing to do. To continue to have the full repayment requirements of the investment property (approx $7500 per month - interest only!) as well as have an additional rent or mortgage repayment would be imprudent. We have not settled in, unless keeping the house in a state to enable inspections on short notice and keeping most personal items unpacked is considered, 'settled in'. The house is ready for an inspection with as little as 10 minutes notice and there have been numerous times when we have had to leave on short notice. Yes, inspections still occur. They are usually inconvenient. The most recent example occurred last Saturday when a last minute inspection necessitated taking Cheryl's mother to the airport early. Whenever I have been asked over the years to assist, I have. However, I am no longer in a position to do so. The loss of Lumley at the end of March, the primary source of income, has not been replaced. The termination fees applied to Lumley certainly assist, however it is easy to work out how long it will last after tax is removed, when the monthly house commitments are considered. Even so, the (approx $7500 per month) still needs to be paid as well as rates of $1,224.07 per annum. Having a proportionate contribution towards the repayments would have been helpful previously and would be helpful now. This, I understand, is unlikely to happen. The seemingly bottomless pit of money actually has a limit. If the house does not sell in the next few months, the house will just have to be sold for whatever price it can get. The only advantage to this will be a limit to the loss. Accordingly, unless some significant contribution can be received towards the monthly interest payments, there simply isn't the money coming in to keep paying $1000 per month to Chris. Whilst undoubtedly unwelcome, this should not be a surprise. I have always done what I could. I can no longer do so. I have spent a considerable amount of time trying to find a way to communicate this in the most constructive and positive light, particularly considering the amount of stress experienced by all concerned. 42 Although the evidence of Neil Campbell and Mrs Rowan varies slightly as to timing, the Court finds that in early September 2006, Mrs Rowan learned that, in August 2006, Neil Campbell had rejected an offer to purchase 19 Applecross Avenue for $1,150,000. Neil Campbell did not contest Mrs Rowan's evidence that the property had, at that time, been on the market for about a year at a price of $1,195,000. Neil Campbell says that he rejected the offer because he expected that the price would produce a loss. He did not refer to Mrs Rowan in making that decision. 43 Mrs Rowan says, and the Court accepts, that she had a conversation with Neil and Cheryl Campbell and Mr Rowan on 8 September 2006 in which Neil Campbell confirmed that 19 Applecross Avenue had been taken off the market, confirmed that he had received on offer for $1,150,000, stated that the "house was a loss" and Mrs Rowan asked for "a proper accounting so that informed decisions can be made" which Neil Campbell agreed to provide by the end of September 2006. She sent emails pressing for an accounting on 3 October 2006 and 1 November 2006 and received responses that Neil Campbell had been unwell and was taking time to recover. She asked again on 20 November 2006 and 22 December 2006. On 9 February 2007, Neil Campbell responded, saying that "reconciling the accounts has not been forgotten about". 44 Ultimately, on 5 September 2008, Neil Campbell sent Mrs Rowan a narrative document which will be referred to as the September 2008 summation. Most likely at the same time (although it may have been in December 2008) Neil Campbell provided a schedule of expenditure on lot 1102 which appears in the Court Book at pp 679-687 (the 2008 expenditure schedule). 45 In the September 2008 summation, Neil Campbell relevantly said (as written, emphasis in the original, footnote deleted): Informal/Formal (Contract) - At first, Marilyn & I agreed to pay ourselves $20,000 each from the profit from the property development for our organisational and administrative involvement, followed by a proportionate division of the net return in accordance with the financial input, for the time/effort input into the development. It became clear early on, to both Marilyn & I, that Marilyn's input was minimal and Marilyn acknowledged that as this was the case she would relinquish her $20,000 payment and just receive her apportioned payment from the net return. Nevertheless, we had also agreed that a formal agreement was necessary to be agreed upon and signed. Accordingly, I sought legal advice on such and, having acquired an agreement, forwarded the agreement to Marilyn for perusal and subsequent signing. A copy of the 'Joint Venture Agreement - Lot 1102' was forwarded to Marilyn on Tuesday, 4th February 2003, the email stated: … No response was received to this email (with the attached agreement). The email was resent Thursday 25th September 2003. Again no response was received at all. … Offer on 19 Applecross Avenue - After two years of having to have our home in a constant state of preparedness for visitations, an impression was received on Saturday 25 August 2006, by both Cheryl & I (separately) to take the home off the market. We received a phone call for a visitation that evening which we declined and another phone call the next morning for a visitation, which we also declined. However, the estate agent was insistent and I allowed the person to visit. Long story short, an offer was made on the home a few days later (Wednesday, 30 August 2006). As the home was not designed with our preferences in mind (like 25 Applecross Avenue), it financially made sense to sell the home and purchase a cheaper home with reduced mortgage or even build again. However, both Cheryl and I felt extremely uncomfortable doing so, which was unexpected since, whilst we like the home, we certainly hadn't fallen in love with it as it came up short in a number of areas in regard to our preferences. Nevertheless, we decided to not sell the home in accordance with the impressions we both had, and have not had a moment of regret. Marilyn's Visit - Nevertheless, the decision to not accept the offer was made on Friday 1st September 2006. The next day, on Saturday 2nd September 2006, Marilyn dropped in for a chat to see how the housing market was doing. Marilyn specifically asked if we had had any offers on the home. I simply did not answer the question but rather answered that we had not had many visits (which was true) and the housing market was still slow (which was also true). I then, in changing the subject, asked Marilyn how her business was doing and Marilyn answered that her business had been growing and she had been very busy and in fact the previous Christmas (2005) has been their busiest ever and had continued to be busy. Over the years I made a point of always saying to Marilyn that I did not want to know the specifics of their financial position … Nevertheless Marilyn had in the past asked for a loan of $10,000 which she promised to pay back within a few months, which she did … I only charged the interest I had paid on the money I loaned to her (as it was drawn down from my line of credit). … When news that our home at 25 Applecross Avenue was sold, Marilyn approached me about a loan for $25,000 to pay the Registry of Birth's, Deaths & Marriages which Marilyn stated she did not have. I was also aware of other debts Marilyn had, and whilst I was not aware of the specifics, I did not ask to know as I did not want to know. Consequently, I forwarded $50,000 to Marilyn with the instruction to "get the monkeys off your back". Marilyn was both surprised and grateful. Marilyn had again expressed appreciation and assured me that I would again receive the money back over the following months. At the point of Marilyn describing their fortunate financial circumstances (at the time of her visit Saturday 22nd Sept 2006), I reminded Marilyn of the $50,000 that I loaned her in 2004 and that she had promised to pay it back within the following months. Marilyn agreed that the money was owed and will be paid back. To this day, not one payment has been received, despite assurances each time I have reminded Marilyn. I was both happy for her improve financial circumstances, yet also surprised that she would want to actually tell me how well financially they were doing as the previous June (2005), I had asked Marilyn if she was in a position to put any funds towards the interest payments (as at this point, the house was still on the market to sell). Marilyn felt the need to remind me that her involvement only pertained to the deposit on the land and that rest was up to me, whatever happened. (Marilyn also made no mention of the $50,000 owed by her). I was very clear of my responsibilities in making the repayments; however I was actually asking if she was in a position to put any money towards interest payments only. Marilyn's patronising answer unfortunately reflected far more than the question sought. There were several reasons why did not answer Marilyn's question of whether we had received any offers on the home, in addition to the reasons mentioned in the preceding paragraphs. Most significantly, Cheryl & I actually couldn't explain why we felt the need to take the home off the market. All we knew then and still now is that we were not to sell the home. We felt right about the decision then and continue to feel so now (I still cannot give a lucid reason to keep the home however I can certainly give good reasons why selling would make sense.) Marilyn & Chris Rowan's Visit - (Friday, 8 September 2006). After Marilyn visited me the previous Saturday, she dropped into the real estate agent on the way home to see what else could be done to sell the home. The same arrangement of the real estate agent contacting both Marilyn and I separately was also in place with this different estate agent (Louis Carr). The estate agent told Marilyn that an offer had been made and rejected. Marilyn had assumed that no office were received, when I hadn't told her of the offer myself, even when she asked. Marilyn & Chris dropped in unannounced the following Friday to accuse me of lying to them and demanded to have a summary of the housing costs provided. It is true that Marilyn asked me if we had received any offers on the home, however, it is equally true that I didn't answer the question and changed the subject. I was somewhat taken aback by the outrageous accusation. If I had said that there hadn't been any offers, then the accusation would be valid and justifiably stated. However it wasn't true. …. It is unfortunate that the enthusiasm for having this matter resolved has not been extended to repaying the outstanding $50,000 loan provided 4 years ago, despite assurances it would be. To state that he money borrowed will be paid on several occasions when there is no intention to do so is a more accurate description of dishonesty. … Financial Summary The following is a summary of the total expenses and circumstances surrounding the final outcome of the 'unprofitable' venture in housing development. $ 807,196.30 Home Construction (including site works and landscaping) $ 255,620.78 Finance Charges $1,062,817.08 sub-total $ 40,000.00 fee for Neil Campbell for direct involvement (as agreed between Marilyn & Neil) $1,102,817.08 Total

As the market value is similar to the expenses identified, cause will need to be shown as to why the house should be sold. I am happy to have the net position apportioned, as agreed to, however when the direct costs attributable to Marilyn are applied, a significant input from Marilyn is required. I have communicated to Marilyn on several occasions that the financial return was negative nevertheless Marilyn has continued to hold the view that the development is financially positive. I can only surmise that Marilyn has not taken into account the return obtained from 25 Applecross Avenue that was used to reduce the outstanding mortgage on 19 Applecross Avenue resulting in a current mortgage lower than the identified amount above. Please note the following about the above expenses; * All expenses identified above were incurred up to September 2006 when the decision to not sell the home occurred. Finance charges include: • Council Rates charges (prior to moving in) • AGL Charges (prior to moving in) • Sydney Water charges (prior to moving in) • Integral Energy charges (prior to moving in) • Home & Contents Insurance (prior to moving in) • Real Estate marketing charges ($4,000) • Vendor Interest & Charges (delayed settlement $10,253.72 ) • Finance (14 Dec 2001 - 07 Feb 2003) - Obelisk (Private Funding) - fees & Charges $79,834.10 • Finance (07 Feb 2003 - 20 May 2003) - Suncorp Metway $49,512.07 • Finance (20 May 2003 - Sept 2006) - Bankwest Finance ($700,000 loan only) $79,956.18 • Finance (until - Sept 2006) - Police Credit Union $27/532.59 Construction Costs A significant contributor to the cost over-run was the erroneous topographical survey measurements provided by Jared Hart and the subsequent costs on BOTH properties. The builder (Dennis Mirosevich) calculated that the additional combined cost for both properties would be in the order of $100,000+. The $500/property saving was somewhat outweighed by the costs associated with the rectification. . If a registered surveyor had caused the error, then the rectification costs would have simply been charged back to the surveyor. When Jared Hart was approached, he was initially helpful until he realised the implications of his error. His initial helpful tone was replaced by defensive statements ... His position is indefensible. The responsibility for Jared's involvement was accepted by Marilyn at the time and the consequence is therefore directly born by Marilyn. At no point has Marilyn ever offered an apology for this or any of the adverse outcomes that Marilyn was directly responsible for. Whatever way the figures are viewed, the end result is the same. What has been ignored by Marilyn was the reduction in the current mortgage from the proceeds received from the sale of 25 Applecross Avenue. The $50,000 provided to Marilyn also came from the sale proceeds. The proceeds from the sale of 25 Applecross Avenue is the primary reason why the current mortgage is not higher than it is. The net position is, as previously stated on several occasions, a negative position. This cannot possibly be a surprise. In keeping with the original terms of the agreement between Marilyn Rowan & Neil Campbell, the negative position requires the input of both parties until a neutral position is achieved. The input is relative to the overall input, including any additional unplanned costs, which in the case of Marilyn is significant. The financial (apportioned) return is to be calculated as follows: 1. The initial outlay by Marilyn, 2. less the costs of Jared Hart's paid invoices (the full cost is borne by Marilyn as Marilyn did not seek this amount to be reimbursed as agreed), 3. less the direct costs associated with the cost overrun directly attributable to the Jared Hart supplied topographical survey's ($100,000+), 4. less the direct costs associated with the delayed settlement with the vendor, 5. less the $5,000 increase in the price of 19 Applecross Avenue (i.e: removal of discount), 6. less the direct costs associated with the delayed financials, requiring private funds to avoid forfeiting the deposits. 7. Of course, there is still the $50,000 already forwarded to Marilyn (loan on 2004), still unpaid. The cost of Marilyn's involvement is not limited to the aforementioned reasons. If Marilyn did not become involved, I would have acquired the additional two properties as intended. Within twelve months, property values had more than doubled. The consequence would have been a net return of $250,000 per property i.e.: a $500,000 net return, within twelve months, resulting in either no mortgage or a minimal mortgage. Marilyn takes no responsibility for any of the negative outcomes of her direct involvement, nor have any measures been undertaken to pay what is owed despite assurances. Significantly, Marilyn has never apologised for any of the directly attributable adverse outcomes, and yet, Marilyn assumes that I am obliged to share the return on 25 Applecross Avenue, for which there was thankfully no involvement at all (except for adding significantly to the cost of and time for construction). The net position is negative when the 'contribution' (positive & negative) is apportioned. Additionally, the $50,000 is still owed. Marilyn needs to provide a repayment schedule as well as extricating herself from the property title to allow her to pursue other financial investment measures, as previously expressed by Marilyn. 46 The construction costs and finance charges reflected in the 2008 expenditure schedule match the summary in the September 2008 summation. 47 The following correspondence ensued: (1) On 1 December 2008, Bruce Ryrie of Elliot Tuthill Solicitors, wrote to Mr Campbell saying that Mrs Rowan wished to resolve the matter amicably and expeditiously, given the costs which would be incurred in litigation in the Supreme Court. Mr Ryrie said: Mrs Rowan required her liability under the mortgage over lot 1102 to be discharged. She was not satisfied with the detail supplied; she needed that detail to assess her situation properly. She contributed $50,000 "together with other payments" and "the sum of $50,000 has been repaid". She is "entitled to a repayment of the balance of the moneys contributed by her, if she were to transfer her share in the property to you and discharge the mortgage". Mrs Rowan denied owing anything to Mr Campbell. (2) By letter dated 18 December 2008, Mr Campbell replied and made a number of comments which included: Inventions have more place in the scientific realm, so I would recommend Marilyn rethink her view of the $50,000 and the creative conclusions she also referred to in the phone call. The correspondence on hand along with Marilyn's responses to active questions clearly identifies the basis of the $50,000 loan. There was never any relationship between the $50,000 and the property. No point creating one now. I was also intrigued that despite the agreement to proportionally share in the 'proceeds' of the venture, your statement that, "On our instructions, at the very least, she is entitled to a repayment of the balance of the moneys contributed by her, if she were to transfer her share in the property to you and discharge the mortgage". Let's see if I understand this correctly. If the house had sold and a profit was made (as we both thought would happen), Marilyn is entitled to her share of the profit, however in the case of a loss, Marilyn simply wants her money back, in full, and I bear all of the negative consequences, including those directly caused by Marilyn. And this is "On (your) instruction"? The spirit of the agreement was to share the 'outcome'. … The advised approach is akin to investing in the stock market, losing on the 'investment' and then asking for your money back. ... Nevertheless, as a demonstration of my willingness for an amicable resolution and as a sign of goodwill, I am happy to have Marilyn "released" from her name on title and the mortgage documents (see I didn't use the word 'liability'). … Further, as a reciprocal goodwill response, Marilyn can repay the loan and I will also forgo the interest, provided it is repaid within 30 days. (3) By letter dated 29 January 2009, Mr Ryrie responded to Mr Campbell and said: 1. Given your apparent misunderstanding of a mortgagor's liability, we strongly suggest that you obtain independent legal advice. 2. Our client denies that there was a loan from you to her and maintains a position that it was part repayment of the moneys advanced by her. Accordingly, it will not be repaid. 3. We are instructed that our client advanced the sums of - • $50,000.00 by way of initial deposit • $14,488.00 in payment of stamp duty • $2,200.00 in loan fees The sum of $50,000.00 has been repaid to her. The outstanding balance is therefore in the sum of $16,688.00. We note your comments that the market value is similar to the expenses identified. 4. Our client has the capacity to approach the Supreme Court of New South Wales to obtain Orders for a sale and discharge, together with an Order for costs, but has instructed us that she is prepared to settle the matter on the basis outlined above, provided that the matter is settled expeditiously. (4) Mr Campbell responded on 14 February 2009, saying that Mr Ryrie was under the mistaken assumption that he had not taken legal advice and asked for Mr Ryrie to identify the "basis in law" for his position because the "tenuous claims made, presumably by Marilyn Rowan, seem to have little reference to the events". (5) Mr Ryrie responded on 10 March 2009, saying that unless an "adequate response" to the letter dated 29 January 2009 was received, an application would be made to the Supreme Court of New South Wales "seeking a sale the property and the division of the proceeds and costs". (6) Neil Campbell responded by email dated 11 March 2009, noting his prior request for Mr Ryrie's "basis in law" for his claims. (7) Mr Ryrie responded by letter dated 17 March 2009 that Mrs Rowan is a joint owner of the property and requires sale and that is the "basis in law". Mr Ryrie again recommended that Mr Campbell get legal advice. (8) On 3 July 2009, Goldrick Farrell Mullan, solicitors, responded, saying that they acted for Mr Campbell who was willing to remove Mrs Rowan from the title to 19 Applecross Avenue. The letter asked Elliot Tuthill to provide copies of the certificate of title and mortgage documents and that Elliot Tuthill advise on what terms Mrs Rowan was prepared to transfer title. (9) Mr Ryrie responded on 7 August 2009 saying: Our instructions are consistent with our letter to your client dated 29 January 2009, a copy of which is enclosed. Our client is prepared to transfer the property on the basis of the payment to her of the sum of $16,888.00 and that all outstanding mortgages are discharged. Further, she requires an indemnity from your client in relation to any advances by your client or his company to our client and in relation to rates or other outgoings in respect of the property. Please advise us of your instructions. (10) Mr Campbell wrote to Mr Ryrie on 14 April 2010. It appears that this letter follows commencement of legal action by Ms Rowan, although none of the pleadings related to that court action are in evidence. Among other things, Mr Campbell said (as written): … To be clear, the following matters are separate issues: (a) Removal of Marilyn's name from the property title, (b) Marilyn Rowan's still yet unpaid debt (loan + interest), and (c) Marilyn Rowan's share in the loss of the return of the investment property (+ interest). … As further evidence, one has only to consider Marilyn Rowan's feigned expression of a desire to have her name removed from title. I have made it clear, from the beginning, that I am happy to have Marilyn Rowan's name removed from title without conditions, yet instead of simply doing so, Marilyn has not accepted the offer. Her refusal to accept the offer to have her name removed from title, but rather making her name removal conditional upon unrelated matters has uncovered her real motive. They include, but not limited to: 1. Avoidance of her responsibility for a $50,000 loan (originally sought as a loan by Marilyn - it was only ever a loan and was never a request for a forwarding of the future 'hopeful' return of the proceeds of the profitable sale of the speculative investment, as is now claimed) - an attempt to make a relationship between two unrelated matters. 2. Avoidance of her liability towards the apportionment of the return of the speculative investment because it is negative. A very different approach would have been taken if the return was positive ie: profitable. 3. Contempt for the legal system with the attempt to use the legal system to leverage the defraud of my personal funds by sharing in the proceeds received from the selling of my personal home that were put into the mortgage to reduce the repayments that only I have contributed to. The real costs have been identified, but they are simply ignored, with efforts made to claim personal funds from the proceeds received from the sale of my personal home. It is hard to decide which of the above is more repugnant. Marilyn Rowan is (verifiably) directly responsible for: 1. The significant additional costs prior to construction. 2. The over-expenditure (verifiable $100k+ cots blowout) consequent to her negligence in organising the topographical surveys; and 3. Subsequent construction time delays (and associated costs) *** without these (Marilyn induced) time delays, the home would have been ready to sell some months prior to the end of the boom period, rather than being put on the market at the end of the boom. (11) On 16 January 2012, Thompson Eslick Solicitors, wrote to Eliot Tuthill in the following terms on instructions from Mr Campbell. The loan agreement and statutory declaration set out above were attached to the letter: 1. Loan In early 2004 our client, through his company, Autus Australia Pty Ltd, loaned to your client the sum of $50,000.00. The agreement was oral. Your client agreed to repay the loan, together with interest at a commercial rate, as soon as she was in a position to do so. The loan was subsequently confirmed by way of written agreement dated 15 November 2005. We enclose a. copy of the written agreement. The written agreement introduced a loan term of five (5) years from initial drawdown. Therefore, the loan was required to be paid by early 2009. We also enclose a copy of a statutory declaration of Mr Simpson, accountant for Autus Australia, confirming that the advance of funds to your client was a loan. There has been no repayment of any sums and your client remains in breach of the loan agreement. In addition, your client has been unjustly enriched at our client's expense. Our client is entitled to repayment of the sum of $50,000.00 plus interest since early 2004. We calculate interest to be $35,595.99. Our client requires payment of the amount of $85,595.99 in full within 14 days of the date of this letter. 2. Amounts Owing Due To Investment Losses Our respective clients agreed to undertake a development of land at Lot 1102 Applecross Avenue, Castle Hill. It was a term of the agreement that Mr Campbell and Ms Rowan would share on a pro rata basis any profit or loss on the venture. Having regard to the substantial expenses incurred in connection with the development the investment will yield a loss. Our client is obtaining a valuation of the property following which a final reckoning can be made. We will provide details of the amount owing in the near future. Please confirm within 14 days of the date of this letter that your client accepts that she is liable to contribute on a pro rata basis such loss as is established following a final reckoning. 3. Removal of Name From Title It is necessary for your client's name to be removed from the title of the Applecross Avenue property. In the event, your client has made no contribution whatsoever towards repayments to the financier. We are instructed that the financier would support the removal of your client's name from the title. Please confirm within 14 days of the date of this letter that your client agrees to the removal of her name from the title of 19 Applecross Avenue and that she will pay the costs associated with this process. 48 On 5 June 2012, Autus Australia commenced proceedings in the Local Court of New South Wales against Mrs Rowan seeking repayment of a loan of $50,000 plus interest, in aggregate $87,189.80. This was on the basis of an oral agreement said to have been made in June 2004 and memorialised in the loan agreement. 49 On 30 July 2012, MCW Lawyers, acting for Mrs Rowan, wrote to Thompson Eslick in relation to the debt claim. The letter said: We assume that you are familiar with the lengthy background of the dispute between our client and your client's director, Neil Campbell, and will therefore not recite its full history. However, suffice it to say that our client denies owing anything to Autus Australia Pty Ltd, and says that the $50,000 paid to her in or about 2004 was a payment out of the funds of the property development joint venture between her and Neil Campbell. She most definitely denies that there was any loan of $50,000, and indeed denies even requesting that sum of money; she says that she only asked for a release of $25,000 and that your client volunteered a release of $50,000. 50 The 30 July 2012 letter went on to point out a "number of weaknesses" in Autus Australia's case, not least of which was that it was deregistered on 29 August 2010, so that the claim had no prospects of success. Noting that Mrs Rowan was "essentially assetless", with no real property (aside from the joint venture), no accumulated wealth of any significance and a leased car, that she was "tired of her dispute with Mr Campbell" and offered to enter into an "appropriately worded Deed" under which: 1. Our client will transfer her share of 19 Applecross Road to Mr Campbell; 2. As a condition of the above, Mr Campbell is to arrange for the refinancing of the loan on the property, so as to remove our client as a liable party; 3. Our client and Mr Campbell are to mutually release each other from any claims that they may have against each other, and Mr Campbell is to indemnify our client against any future claim by Autus Australia (given that, as a deregistered company, it cannot even give an effective release). 51 Thompson Eslick responded on 23 August 2012. They noted that the action against Mrs Rowan had been discontinued and that re-registration of Autus Australia was a procedural matter that could be attended to promptly. The letter disagreed that the loan agreement was implausible, noting the 2 August 2005 email sent by Mr Campbell to Mrs Rowan and saying that if Mrs Rowan "denied the existence of the loan one would expect she would have stated as much". The letter went on to say: We agree, however, that if possible all parties are best served through a resolution of differences between the parties. On our instructions, our client is entitled to: 1. Repayment of the loan of $50,000 plus interest (total to date of $36,560.81); 2. Transfer to Mr Campbell of 19 Applecross Avenue together with attendant costs; 3. Payment of your client's pro rata share of losses on the development - yet to be quantified. In the interest of early resolution, we are instructed to propose the following: 1. Payment within 28 days of $50,000; 2. Transfer to Mr Campbell of 19 Applecross Avenue and 50% of the attendant costs of doing so; 3. Mr Campbell will arrange refinancing so as to remove your client as a liable party; 4. The parties to provide mutual releases in respect of all claims including any claim by Autus Australia. 52 By letter dated 10 September 2012, MCW Lawyers responded, noting the fundamental disagreement between Mr Campbell and Mrs Rowan concerning whether there was a loan and the underlying joint venture, and saying that Mrs Rowan reiterated her position that she does not owe money to Autus Australia and that (on a proper accounting) she is owed money by Mr Campbell. The letter suggested that, given her current financial status, Mrs Rowan was "judgment proof", so that irrespective of merit, there was nothing to be obtained by Mr Campbell that would be better than (or equal to) that which Mrs Rowan had already offered. 53 There then ensued correspondence from 28 March 2013 and 8 July 2013 in which the solicitors for Mr Campbell proffered draft statutory declarations to be signed by Mrs Rowan for the purpose of obtaining a stamp duty exemption under s 55(1)(b) of the Duties Act in relation to the transfer of Mrs Rowan's interest in lot 1102 to him. It appears that Mrs Rowan's advisors were not persuaded as to the efficacy of the statutory declaration and Mrs Rowan did not accept the content. 54 On 5 August 2013, MCW Lawyers wrote to Thompson Eslick. MCW Lawyers said that it remained their client's position that the properties were purchased on the understanding that they would be mutually developed for profit. On this basis, Mrs Rowan paid a total of $66,688.00 comprising the deposits, stamp duty and loan application fees and saying: Mrs Rowan believes that the $50,000 paid to her by Mr Campbell in 2004 was in repayment of the deposits. The letter reiterated the offer made in the letter dated 30 July 2012 set out at [50] above and said that, for "clarification", any costs of the transfer of the property or refinancing were to be borne by Mr Campbell alone. 55 On 26 August 2013, Thompson Eslick wrote to MCW Lawyers reiterating Mr Campbell's view concerning the events leading up to the laying of the deposits and exchange of contracts for lots 1102 and 1105 and stating that those facts fell within the terms of s 55 of the Duties Act. It threatened that if Mrs Rowan remained unwilling to declare the statutory declaration, Mr Campbell would have "little alternative but to seek the reinstatement" of Autus Australia and recommence proceedings in the Local Court. The letter reiterated the offer in Thompson Eslick's letter dated 23 August 2012 at [51] above. 56 On 4 September 2013, MCW Lawyers replied saying that, even if Mrs Rowan agreed with the contents of the statutory declaration proposed by Mr Campbell (which she disputed), it was necessary that it reflected the events which occurred, not his intentions. The letter reconfirmed the offer in the letter dated 5 August 2013. 57 On 3 October 2013, Thompson Eslick wrote to MCW Lawyers enquiring whether Mrs Rowan would be prepared to provide a letter stating that she no longer wishes to have further dealings with 19 Applecross Avenue and is happy to have her name removed from title to the property. 58 On 28 October 2013, MCW Lawyers replied that Mrs Rowan was only willing to provide the requested letter in exchange for: refinancing the loan on lot 1102 removing Mrs Rowan as a liable party, release from claims by Mr Campbell and indemnity against claims by Autus Australia and an undertaking that Mr Campbell be responsible for any costs incurred in refinancing and transfer. 59 Mrs Rowan presented a debtor's petition and Messrs van der Velde and Moretti were appointed as trustees of her bankrupt estate on 12 August 2015. 60 On or about 18 August 2015, the BankWest loan for lot 1102 was discharged and BankWest discharged its mortgage over lot 1102.

Summary of relief sought in original summons 61 These proceedings were commenced in the Supreme Court of New South Wales and later transferred to this Court because its subject matter relates to a bankrupt estate. As originally pleaded, Neil and Colin Campbell sought the following relief against the trustees: (1) Declarations that upon a true construction of a contract for the sale of land dated 25 July 2001 in respect of lot 1102, and in the events that have happened: (a) Neil Campbell is the beneficial owner of all of that land. (b) The interest of Mrs Rowan as registered proprietor of lot 1102 is held on constructive trust for Neil Campbell. (2) An order that Mrs Rowan's share of lot 1102 is charged in favour of Neil Campbell to the value of payments which he made to mortgagees, the builder (Dennis Homes) and competent authorities in relation to the costs of acquiring, developing and occupying that land and to the value of interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). (3) An order that the trustee execute in registrable form and deliver to Neil Campbell a transfer in respect of lot 1102 in which the trustee is named as the transferor and Neil Campbell is named as the transferee, together with a bankruptcy application and withdrawal of caveat AJ785807 lodged by the trustees. (4) Consequential orders.

Original points of claim 62 In the original points of claim filed in this Court, Neil and Colin Campbell pleaded that there were two agreements between Neil Campbell and Mrs Rowan. The first agreement was said to have been made in or around June 2001; it was particularised as being oral and express. That agreement was that, subject to them engaging a mutually acceptable builder and building consultant, Neil Campbell and Mrs Rowan agreed to share any saving in construction and consultancy costs proportionately between them in relation to the development of: (1) Lots 1101, 1102 and 1105 in an unregistered plan of subdivision which Neil Campbell was intending to purchase for $250,000 each and develop; and (2) Lots 12 and 13 in the same unregistered plan of subdivision, which Mrs Rowan was intending to purchase for $250,000 each and develop. 63 The second agreement was said to have been made on or about 21 July 2001; it was express to the extent of a telephone conversation on about 21 July 2001 and implied in all of the circumstances. The agreement was that, in consideration of Mrs Rowan agreeing to advance to Neil Campbell the sum of $75,000 for the payment of three deposits of $25,000 each on lots 1101, 1102 and 1105, Neil Campbell agreed to repay the sum on demand. 64 The applicants went on to plead that: (1) Around 25 July 2001, Mrs Rowan advanced Neil Campbell $50,000 by making deposits to the agent for the vendors of lots 1102 and 1105 (for $25,000 each) but refused or neglected to advance the further sum of $25,000 intended as payment on the deposit of lot 1101. (2) Mrs Rowan represented orally to the vendor's agent that she would exchange, as purchaser, a contract for the sale of land in respect of lot 1102 and she had Neil Campbell's authority to do so. She also represented that she would exchange a contract for the sale of land in respect of lot 1105 in the name of Neil Campbell as purchaser and she had Neil Campbell's authority to do so. Contracts for lots 1102 and 1105 were exchanged accordingly but Mrs Rowan did not pay deposits in respect of lots 12 and 13 nor did she exchange contracts in respect of them. (3) Between 26 and 28 July 2001, Mrs Rowan informed Neil Campbell that: (a) She had exchanged contracts on lot 1102 in her name as purchaser as a means of obtaining security for repayment of the $50,000 advanced pursuant to the second agreement; (b) She had not exchanged contracts on lot 1101 and had not advanced him the sum of $25,000 in respect of the deposit for it; and (c) She had not exchanged contracts on lots 2 and 13. (4) On and after 28 July 2001, Neil Campbell acquiesced in the events referred to at [64(3)] above and the second agreement was thereby varied or his conduct constituted a waiver of his rights under the second agreement with the effect that: (a) Neil Campbell's obligation under the second agreement was varied to require him to repay the sum of $50,000 to Mrs Rowan on demand; and (b) The first agreement was terminated before it had been performed, having regard to her failure to exchange contracts on lots 12 and 13. (5) In late 2001, Neil Campbell prepared two Transfers for registration by the Land Titles Office in respect of lot 1102: the first transfer was from the vendor of lot 1102 (PEK Holdings) as transferor to Mrs Rowan as transferee and the second transfer was from Mrs Rowan as transferor to herself as to a 98/100 share, to Neil Campbell as transferee of a 1/100 share and to Colin Campbell as transferee of a 1/100 share, in each case, as tenants in common. Mrs Rowan expressed agreement and signed each of the transfers as required. On or about 14 December 2001, contracts for the sale of land were completed and the first and second transfers in respect of lot 1102 were registered along with a mortgage in favour of PTAL. (6) Pursuant to a loan agreement with the term of one year, PTAL advanced $550,000 to complete the purchase of lots 1102 and 1105. The advance was secured by first mortgage over lots 1102 and 1105. Interest was to be capitalised. (7) By letter dated 3 February 2003 from the solicitors for Suncorp, Suncorp notified its approval of a development finance facility to Neil and Colin Campbell and Mrs Rowan with a limit of $1,658,500 for the purpose of refinancing the PTAL loan and funding the development of lots 1102 and 1105. (8) Around 7 February 2003, the PTAL loan was refinanced by a drawdown of $562,245.06 of the facility from Suncorp and the PTAL mortgage was discharged and Suncorp was registered as the first mortgagee of lots 1102 and 1105. Neil Campbell made repayments to Suncorp between 7 February 2003 and 30 April 2003. (9) Around 16 May 2003, the Suncorp loan and mortgage were discharged by drawdown of the sum of $951,185.21 from BankWest and on settlement of that loan, BankWest was registered as the first mortgagee of lots 1102 and 1105. (10) On 7 October 2004, Neil and Colin Campbell completed a contract for the sale of lot 1105 and on completion of that contract, Neil Campbell directed that $803,957.40 be paid to BankWest in reduction of the debit balance of the loan with respect to the development of lot 1105. Neil Campbell made repayments to BankWest between 16 May 2003 and 7 August 2015, the effect of which, together with that payment of $803,957.40, was to pay out the BankWest loan and enable the discharge of its mortgage over lot 1105 on 7 October 2004 and its mortgage over lot 1102 on about 15 August 2015. (11) Neil Campbell paid construction costs in respect of lots 1102 and 1105 which were not the subject of the construction finance facilities from Suncorp and BankWest. In respect of both lots 1102 and 1105, he also paid council rates and utilities, insurance premiums costs of landscaping and costs of maintenance of the completed dwellings. (12) On or about 18 and 19 October 2004, Neil Campbell paid Mrs Rowan amounts of $25,000 ($50,000 in aggregate) in satisfaction and discharge of his obligations under the second agreement (as varied). (13) In the premises, from 25 July 2001, Mrs Rowan held her interest in lot 1102 on constructive trust for Neil Campbell to the extent of the payments referred above plus interest, her interest in lot 1102 does not vest in the trustees pursuant to s 58(1) of the Bankruptcy Act and Neil Campbell is the beneficial owner of Mrs Rowan's interest as registered proprietor in a 98/100 share as tenant in common in lot 1102.

Defence 65 For simplicity, at this point, only the following matters from the trustees' defence will be set out: (1) Any agreement that might have been entered into required writing by operation of s 54A of the Conveyancing Act 1919 (NSW) and there was none. (2) The financing to acquire lots 1102 and 1105 was in the joint names of Neil and Colin Campbell and Mrs Rowan, with the borrowing being by Neil and Cheryl Campbell and Mrs Rowan and a guarantee provided by Colin Campbell. (3) Equity is not available to the applicants because it is suggested by them that the ownership structure in respect of lot 1102 was entered into with the intention of defeating the revenue, namely, in respect of land tax, capital gains tax and GST on the basis that it was principally owned and occupied by Mrs Rowan. (4) The trustees did not admit that Neil Campbell made the payments that he said he did. (5) The trustees did admit that there was an agreement for Mrs Rowan to advance the sum of $75,000 in respect of the deposits on lots 1101, 1102 and 1105 and that she provided deposits in respect of contracts for the purchase of lots 1102 and 1105. (6) In further answer to the points of claim: (a) Pursuant to a joint venture agreement (or alternatively, a partnership agreement) entered into in March or April 2001, Mrs Rowan was to utilise the proceeds of sale of her property at Raine Place, Barden Ridge to pay deposits on up to five blocks of vacant land in Applecross Avenue, Castle Hill. (b) By the time of settlement of the Barden Ridge property, there were only two blocks remaining available in Applecross Avenue. (c) Mrs Rowan paid deposits of $25,000 each on those blocks, being lots 1102 and 1105. She also paid applicable stamp duty from her personal funds pursuant to the terms of the joint venture agreement or partnership agreement between Mrs Rowan and Neil and Colin Campbell. (7) The particulars of the terms of the joint venture agreement or partnership agreement were that: (a) One property would be in Neil Campbell's name and one property would be in Mrs Rowan's name. (b) There was an intention to develop and sell both properties. (c) The properties would be developed concurrently using the same builder and trades people. (d) Neil Campbell would manage lot 1105 and Mrs Rowan would manage lot 1102 for which each would take a management fee of $20,000 from the proceeds of sale of the property which they respectively managed. (e) The proceeds of sale would be applied towards meeting the costs of development and any amount owed to a mortgagee and then, following the payment of the management fee, the proceeds of sale would be divided equally between Neil Campbell and Mrs Rowan. (8) In breach of the joint venture agreement or partnership agreement, around September 2001, Neil Campbell unilaterally determined that he would keep lot 1105 to be used as his family home. (9) In August or September 2004, in further breach of the joint venture or partnership agreement, Neil Campbell sold lot 1105 and did not account to Mrs Rowan for the proceeds of that sale and moved into lot 1102. (10) The respective rights of the parties in relation to lots 1102 and 1105 are to be dealt with pursuant to either the provisions of the Partnership Act 1892 (NSW) or, alternatively, in accordance with the provisions of the joint venture agreement entered into between them.

Cross-claim 66 The trustees filed a cross-claim against Neil, Colin and Cheryl Campbell. As originally pleaded, the trustees claimed that: (1) In June 2001, the common intention of Mrs Rowan and Neil and Colin Campbell was to: (a) Construct a dwelling house on each lot and then sell them; (b) To pay Mrs Rowan a management fee of $20,000 in relation to lot 1105; (c) To pay Neil Campbell a management fee of $20,000 in relation to lot 1102; and (d) Then to divide the net profits arising from the sale of both lots. (2) In furtherance of the relationship in the nature of a joint venture or quasi-partnership, Mrs Rowan and Neil and Colin Campbell: (a) Around 14 December 2001, applied for and obtained finance from Obelisk Mortgage Trust (represented by Perpetual Trustee Co Ltd) secured by mortgage over, among other things, lots 1102 and 1105. (b) Around 21 October 2001, entered into a building contract with Dennis Homes in respect of the development of lot 1102; (c) Around 14 January 2003, obtained development finance in respect of lots 1102 and 1105 from Suncorp for the purposes of satisfying the existing indebtedness to the Obelisk Mortgage Trust and undertaking the development works on each of the properties. (d) Around 23 April 2003, obtained finance from BankWest in the names of Mrs Rowan and Neil and Cheryl Campbell for the purpose of satisfaction of the then existing loan from Suncorp. 67 In answer to the points of claim, as a result of the purchase and financing of lots 1102 and 1105: (1) Lots 1102 and 1105 became assets of the joint venture agreement or quasi-partnership held by the registered proprietors of those lots by way of trust, or, in the alternative, as fiduciaries on behalf of the joint venture; (2) Each party to the joint venture was a fiduciary of each other party; (3) Each of the properties would be developed and sold with the intention of Mrs Rowan and Neil and Colin Campbell earning a profit to be divided between them. 68 The trustees said that, in breach of the joint venture or quasi-partnership arrangement: (1) Upon the development of lot 1105, Neil and Colin Campbell caused it to be sold and did not, and have not, accounted to Mrs Rowan in relation to the proceeds of sale. (2) Neil and Cheryl Campbell took possession of lot 1105 following its development and they: (a) Failed to accept reasonable offers to purchase it; (b) Appropriated assets of the joint venture/quasi-partnership to their own use; (c) Did not account to Mrs Rowan in respect of that property. 69 As originally pleaded, the cross-claim sought: (1) A declaration that the purchase and subsequent development of lots 1102 and 1105 constituted a joint venture between Mrs Rowan and Neil and Colin Campbell, or in the alternative, a declaration that the purchase and development of lots 1102 and 1105 constituted a quasi-partnership between Mrs Rowan and Neil and Colin Campbell. (2) An order requiring Neil and Colin Campbell to serve: (a) A detailed account, verified by affidavit, of all of the dealings and transactions of the joint venture/quasi-partnership from the commencement of the relationship in June 2001 up to and including the commencement of the proceedings, such account to specify in respect of each payment or receipt the date and amount thereof, to whom the amount was paid and the purpose or account for which the amount was paid or received. (b) A detailed statement of what is claimed to be the value of the assets and liabilities of the joint venture/quasi partnership as at the commencement of the proceedings, the respective interests of the parties having regard to the liabilities and all relevant matters. (3) An order that Cheryl Campbell reimburse the joint venture/quasi partnership for any funds received by her which are or were the property of the joint venture/quasi partnership. (4) Consequential orders.

Defence to cross-claim 70 For simplicity at this point, only the following matters from the defence to the cross-claim will be set out. 71 In reply to the claim concerning acts by Mrs Rowan in furtherance of the alleged joint venture/quasi-partnership: (1) The PTAL loan included mortgages over lots 1102 and 1105 and the homes of Neil and Colin Campbell, being 18 and 18A Megan Avenue but did not include any security from Mrs Rowan. (2) From at least July 2003, Mrs Rowan had no involvement whatsoever in the building of homes on lots 1102 and 1105. (3) The security for the BankWest loan included mortgages over lots 1102 and 1105, a registered fixed and floating charge over the assets and undertaking of Neil Campbell's company, Autus Australia and a joint and several guarantee and indemnity from Colin Campbell and Autus Australia, but did not include any security from Mrs Rowan. (4) Neil Campbell paid out the BankWest loan secured over lot 1102 in August 2015 in the amount of $363,708.57. 72 In reply to the claims that Neil and Cheryl Campbell took possession of lot 1105 upon its development and sold it in breach of the alleged joint venture/quasi-partnership: (1) The offers for lot 1105 were made before October 2004. (2) To Mrs Rowan's knowledge, lot 1105 was sold in October 2004 and the net proceeds of sale were retained by Neil Campbell. Mrs Rowan never made any demand for any profit arising from the sale of lot 1105. (3) The claims in relation to failure to accept offers and the failure to account for the proceeds of sale cannot be brought because the time to do so under s 14 of the Limitations Act 1969 (NSW) has expired. 73 In answer to the whole of the cross-claim: (1) By reason of her decision in July 2001 not to exchange contracts in relation to lots 12 and 13 Mrs Rowan abandoned any agreement that then existed with Neil Campbell in relation to the development of property, including the first agreement. (2) Having regard to Neil and Colin Campbell's pleadings concerning the circumstances of the purchase and development of lots 1102 and 1105, including their contributions towards financing, construction and other outgoings, and the sale of lot 1105: (a) Each of Mrs Rowan and Neil Campbell adopted the assumption that Mrs Rowan's registered interest in lot 1102 was a means of securing repayment from Neil Campbell of $50,000 advanced to him in July 2001 and they conducted their relationship in relation to lots 1102 and 1105 on that basis and each intended that the other would do so. In reliance on that assumption, in August 2015, Neil Campbell paid out the entirety of the loan secured by the mortgage over lot 1102 in the amount of $363,708.57 and departure from the assumption would cause Neil Campbell detriment. Accordingly, the trustee is estopped from alleging the matters referred to at [66(1)]-[68] above. (b) To Mrs Rowan's knowledge, in or about October 2004, Neil and Cheryl Campbell moved into the house on lot 1102 and have lived there ever since. On each of 1 December 2008, 7 August 2009, 30 July 2012 and 28 October 2013, Mrs Rowan, through her solicitors, offered to transfer her interest in lot 1102 to Neil Campbell on condition that any amounts she had spent were repaid to her, she was discharged from liability under the loan secured by the mortgage over lot 1102 and was released from any claim by Neil Campbell and Autus Australia, and thereby Mrs Rowan: (i) Waived any claim she had to any share in the net profit obtained from the sale of lot 1105 and acquiesced in Neil Campbell retaining all such profit; (ii) Waived any claim she had for lot 1102 to be sold and to share in any net profit from the sale of lot 1102; (iii) Elected not to pursue any claim of the kind alleged in the cross-claim; (iv) Has so delayed in bringing any claim in relation to lots 1102 and 1105 that it is too late for the trustees to do so; and (v) Abandoned any joint venture or quasi-partnership agreement of the kind alleged in the cross-claim.

Reply to cross-claim 74 Again, without purporting to be a complete summary, the trustees replied that: (1) Neil and Colin Campbell were not entitled to rely on s 14 of the Limitation Act having regard to the nature of the relief claimed which is founded upon account and material non-disclosure by one or more of them. (2) The trustees denied that, by making the decision not to exchange contracts on lots 12 and 13, Mrs Rowan abandoned any agreement which had then existed with Neil Campbell in relation to development of any property, including the first agreement. (3) The "offers" referred to at [73(2)(b)] above were made in circumstances within the operation of s 131 of the Evidence Act 1995 (Cth), that is, evidence of settlement negotiations.

Events which occurred before closing argument 75 The hearing of the application and cross-claim took place from 9 to 11 October 2017. By that time, Mr Moretti had ceased to be a trustee. Counsel for the applicants advised that Colin Campbell had dementia and the proceedings were being conducted on his part by Neil Campbell who held an enduring power of attorney from his father. 76 Having regard to the evidence presented during 9 to 11 October 2017, the Court indicated some preliminary views about issues which might be addressed in closing submissions, with the possibility that pleadings may need to be amended in relation to the relief sought and additional evidence might be led or facts agreed by the parties. In particular, the trustee put in issue (a) the source and quantum of funds used to pay construction and financing costs (which was of concern given the nature of the declaratory relief then sought by Neil and Colin Campbell); and (b) occupation fees in relation to both lots 1102 and 1105. Further, while it had been contended by Neil Campbell that there was no profit to be shared in relation to lot 1102, there was no expert evidence as to valuation of lot 1102 or as to any occupation fee. 77 The matter was stood over initially until 29 November 2017 and ultimately until 31 May and 1 June 2018. In the interim, a number of things occurred. 78 As noted previously, orders were made by consent joining Cheryl Campbell as an applicant and Neil Campbell was granted leave to represent Colin Campbell's estate following his death in January 2018. 79 Leave was granted to the parties to amend their pleadings and to file and serve a further Statement of Agreed Facts and Agreed Issues in Dispute, evidence of financial records and contribution schedules with respect to the purchase, construction and financing of lot 1102.

Amended points of claim 80 The applicants filed an amended points of claim to include the following matters. 81 The applicants asserted in the alternative that a third agreement was made about February 2003; it was express and oral and consisted of conversations that took place between Neil Campbell and Mrs Rowan before February 2003 and it was memorialised in the draft joint venture agreement provided by Neil Campbell to Mrs Rowan by email on 4 February 2003. That agreement was that: (1) Lot 1102 was to be registered in Mrs Rowan's name as to a 98% share and in the names of Neil Campbell and Colin Campbell as to a 1% share each; (2) Neil Campbell and Mrs Rowan agreed to hold their respective registered interest in lot 1102 on trust for the benefit of each other to the extent of their respective entitlements to the proceeds of lot 1102 under the terms of the third agreement; and (3) Neil Campbell and Mrs Rowan were each entitled to the proceeds of lot 1102 in proportion to their respective contributions to the acquisition, construction and disposal of lot 1102 as a total of all such contributions. 82 The applicants asserted that Neil Campbell, or in the alternative, Neil Campbell, Colin Campbell and/or Chery Campbell paid, and Mrs Rowan did not pay: (1) Between 7 February 2003 and 30 April 2003, repayments to Suncorp; and between 18 May 2003 and 7 August 2015, repayments to BankWest, the effect of which (together with the payment of $803,957.40 previously pleaded) was to pay out the BankWest loan and enable the BankWest mortgage over lot 1105 to be discharged on about 7 October 2004 and the BankWest mortgage over lot 1102 to be discharged on about 15 August 2015; (2) Construction costs in respect of lots 1102 and 1105 that were not the subject of construction finance facilities from Suncorp and BankWest; (3) Council rates and utilities, insurance premiums, costs of landscaping and maintenance of completed buildings in respect of lots 1102 and 1105; and (4) Those payments exceed the market value of lot 1102, and the particulars of the contributions were as follows: (a) The applicants referred to the summary of payments recorded in the three charts served under cover of a letter from Gillis Delaney Lawyers to MCW Lawyers dated 28 November 2017. (b) To the extent that payments were made from accounts in the names of Autus Australia or Innovated Leasing Australia Pty Ltd ACN 129 526 365 (Innovated Leasing), such payments were made by way of a loan to, alternatively as income otherwise to be distributed to, alternatively as a gift to, Neil Campbell, alternatively each of the applicants. (c) To the extent that payments were made from accounts in the name of Colin Campbell, such payments were made by way of a loan, alternatively as a gift, to Neil Campbell, alternatively such payments were made by Colin Campbell. (d) To the extent that payments were made from accounts in the names of Neil Campbell and Cheryl Campbell jointly, such payments were made by Neil Campbell for his benefit only, alternatively such payments were made for the benefit of Neil Campbell and Cheryl Campbell jointly. 83 The applicants asserted that payments made to Mrs Rowan on 18 and 19 October 2004 (in aggregate $50,000) were made by Neil Campbell or in the alternative by Neil and Cheryl Campbell in effective discharge of Neil Campbell's obligations under the first agreement and the particulars to that amended claim were: (a) Pages 461 and 690 of Exhibit "NCC3" to the affidavit of Neil Campbell sworn 22 November 2017. (b) The payments made from the account in the name of Autus Australia were made by way of a loan to, alternatively as income otherwise to be distributed to, alternatively as a gift to, Neil Campbell, alternatively each of the applicants. 84 The relief sought in the amended summons filed on 16 February 2018 may be summarised as follows: (1) Declarations that, upon a true construction of the contract for the sale of lot 1102 dated 25 July 2001 and in the events that have occurred: (a) Neil Campbell is the beneficial owner of the whole of the land comprised in lot 1102, or in the alternative the applicants are the beneficial owners of the whole of the land comprised in lot 1102 as tenants in common in proportion to their respective contributions to the costs of acquiring, developing and occupying the land. (b) The interest of Mrs Rowan as registered owner of a 98/100 share in lot 1102 is held on constructive or resulting trust for Neil Campbell or, in the alternative, for the applicants in proportion to their contributions to the costs of acquiring, developing and occupying the land comprised in lot 1102. (2) An order that the trustee execute a registrable transfer (and associated documents) in respect of lot 1102 with Neil Campbell named as transferee or in the alternative with the applicants named as transferee as tenants in common in proportion to the value of the payments each of them made.

Defence to the amended points of claim 85 For present purposes, it is enough to note that the trustees: (1) Denied the third agreement. (2) Did not admit the claims set out at [81] and [83] above. (3) Further to the claim that Neil Campbell unilaterally determined that he would keep lot 1105 in September 2001 in breach of the joint venture/partnership agreement, said that Neil Campbell was obliged to "bring to account the value of market value occupation fees in respect of the continued occupation of the property". (4) Further to the claim that Neil Campbell breached the joint venture/partnership agreement by selling lot 1105 and moving into lot 1102, said that Neil Campbell failed to bring to account the value of market value occupation fees in respect of the continued occupation of that property.

Amended cross-claim 86 The amended cross-claim provided for: (1) Detailed accounts to be made as at the determination rather than commencement of the proceedings. (2) Neil and Colin Campbell to bring to account: (a) the value of the respective expenditure of the parties to the joint venture/quasi-partnership to the date of determination of the proceedings; and (b) the value of any benefits received by the parties to the joint venture/quasi-partnership including the market value of occupation for the period that Neil Campbell occupied lots 1102 and 1105.

Cross-defence to the amended cross-claim 87 The cross-defence was in most respects in the same terms as the cross-defence to the original cross-claim save that the cross-respondents specifically traversed some claims and denied any responsibility to pay an occupation fee.

AGREED ISSUES IN DISPUTE 88 The 20 issues in dispute were said to be: (1) In assessing the contributions towards the development and construction of lot 1102, are expenses recorded in Exhibit A, volume 4 to be counted? There were 10 categories of items on which rulings were sought. (2) What were the total repayments made on the loans attributable to the purchase, development and construction of lot 1102, and who made those payments? (3) With respect to the two deposits of $25,000 paid by Mrs Rowan for lots 1102 and 1105: (a) are the deposits to be counted as part of the Mrs Rowan's contributions towards the purchase, development and construction of lots 1102 and/or 1105? (b) were the deposits repaid by Neil Campbell or any of the other applicants and, if so, what is the effect of such repayment on the Mrs Rowan's contributions towards the purchase, development and construction of lots 1102 and/or 1105? (4) What were the total contributions towards the purchase, development and construction of lot 1102? (5) Who contributed towards the purchase, development and construction of lot 1102 and in what amounts? (6) What were the terms of the joint venture agreement? (7) Were the terms of the joint venture agreement varied by the signing of the Transfers? (8) Was lot 1105 part of the joint venture agreement? (9) Was the joint venture agreement, or any part of it, abandoned by Neil Campbell and Mrs Rowan? (10) Did Mrs Rowan waive, elect not to pursue or otherwise act (or fail to act) in a manner that estops or precludes the trustee from pursuing any of Mrs Rowan's rights under the joint venture agreement? (11) Did Neil Campbell breach the joint venture agreement? (12) Are the respective rights of the parties in relation to lots 1102 and/or 1105 to be dealt with pursuant to either the provisions of the Partnership Act 1892 (NSW) or the terms of the joint venture agreement? (13) Is it the case that: (a) Mrs Rowan has held her interest as a registered proprietor in a 98/100 share as a tenant in common in lot 1102 on trust (express, resulting or constructive) for the applicants, or any one or more of them, and, if so, to what extent is her interest held on trust and for whom? (b) Mrs Rowan's interest as a registered proprietor in a 98/100 share as a tenant in common in lot 1102 does not vest in the respondent pursuant to s 58(1) of the Bankruptcy Act? and/or (c) the applicants, or any one or more of them, became the beneficial owner(s) of Mrs Rowan's interest as a registered proprietor in a 98/100 share as a tenant in common in lot 1102? (14) Are the trustee's claims with respect to lot 1105 time barred? (15) Were any acts done by Neil Campbell with respect to lot 1102 with the intention of defeating the revenue and, if so, does this preclude the first applicant from being granted relief? (16) Are the applicants entitled to the relief set out in the application (namely the document headed Amended Summons filed on 16 February 2018)? (17) Should there be an account in respect of lots 1102 and/or 1105? (18) Is Neil Campbell, or, in the alternative Neil and Cheryl Campbell, liable to pay an occupation fee and, if so, in what amount? (19) What is the effect of Colin and Cheryl Campbell not giving evidence? (20) Whether Neil and Cheryl Campbell entered occupation of lot 1102 because they were unable to afford to pay rent and mortgage repayments.

TRUSTEE'S CONCESSIONS 89 The trustee's written closing submissions indicated that the trustee now accepts that lot 1105 was not part of any joint venture between Mrs Rowan and Neil Campbell from 14 December 2001, when the purchase of lots 1102 and 1105 was completed. At the close of oral submissions on the last day of the hearing, counsel for the trustee confirmed that the declarations sought by the trustee in the cross-claim now related only to lot 1102 and that he abandoned the claim for an occupation fee in relation to lot 1105. 90 Counsel for the trustee also indicated that the trustee had abandoned claims for an account because of the detailed material which had been provided in contribution schedules relating to the construction and finance attributable to lot 1102 and the work that had been performed by both parties in preparing the schedules. 91 Those concessions disposed of issues 8, 14 and 17 of the Agreed Issues in Dispute, and issues 12 and 18 of the Agreed Issues in Dispute insofar as they related to lot 1105.

CONTRIBUTIONS TOWARDS PURCHASE OF LOT 1102 AND DEVELOPMENT AND CONSTRUCTION OF A HOUSE ON IT 92 The following material responds to issues 1, 2, 4 and 5 of the Agreed Issues in Dispute. 93 As noted above, in advance of the second tranche of hearings, the applicants and the respondent prepared detailed schedules in relation to the amount and source of contributions to the purchase, construction and financing of lot 1102, highlighting their areas of difference. During the second tranche of hearings, the Court was asked to make rulings about sample transactions in relation to a list of issues in the first issue of the Agreed Issues in Dispute. At the end of the last day of hearings, counsel for the trustee indicated that the trustee did not seek to challenge those rulings. 94 Following the last day of hearings, the parties provided agreed schedules headed "Schedule of Additional Construction Costs" (marked as exhibit K) and "Apportionment of Loans to Lot 1102 (No 19)" (marked as exhibit L). Those schedules applied the Court's rulings in relation to the issues raised in issue 1 of the Agreed Issues in Dispute and took into account concessions made by the parties. The parties also provided a chart headed "Campbell v van der Velde, NSD 1742 of 2016: Summary of Contributions by Issues" which relevantly summarises that material (marked as exhibit M). Following a request from the Court to indicate what the interest payable to 31 August 2006 was, the parties provided an updated chart headed "Campbell v van der Velde, NSD 1742 of 2016: Summary of Contributions by Issues" which has been marked as exhibit N) (Revised Summary of Contributions) and a further spreadsheet marked "Further Loan Apportionment" which has been marked as exhibit O. 95 The chart containing the Revised Summary of Contributions is as follows: In this chart, "Interest post-occupation" refers to interest charged after October 2004 to the end of the loan and "Interest post off-market" refers to interest charged after 31 August 2006 to the end of the loan. The loan ended in August 2015. 96 Having regard to all of the evidence, the Court finds that payments recorded in the schedules marked as exhibits K and O as having been made in relation to financing the purchase and development of lot 1102 from accounts in the name of Neil Campbell, Neil and Cheryl Campbell, Colin Campbell, Autus Australia and Innovated Leasing (insofar as rulings indicated that they should be included in the calculation of contributions) should be treated as contributions which were intended to inure for the benefit of the Campbells, through Neil Campbell, not for the benefit of Mrs Rowan. The Court notes that the shareholders of Autus Australia and Innovated Leasing were Neil, Colin and Cheryl Campbell and that Neil Campbell was the sole director of Autus Australia from 2005 and of Innovated Leasing. Colin Campbell ceased to be a director of Autus Australia in 2003 and Cheryl Campbell ceased to be a director in 2005. 97 The applicants submitted, and the Court accepts, that it is unnecessary for the Court to determine whether all such payments should be treated as a loan to Neil Campbell or the exact proportion of the interests of Neil, Colin and Cheryl Campbell, Autus Australia and Innovated Leasing as between them if the payments were to be regarded as being on account of those entities and not as a loan to Neil Campbell. The joint venture agreement between Mrs Rowan and Neil Campbell did not focus on where the "contributions" came from to that granular detail. Practically, under their arrangement, Mrs Rowan spoke for $66,688 and Neil Campbell spoke for the other direct contributions by or on behalf of members of his family and companies controlled by them which were used to meet the costs and charges of financing the purchase of lot 1102 and construction of a house on it. On the final day of the hearing, the trustee's counsel conceded that the appropriate person to whom the property should be conveyed - upon payment to the trustee of any outstanding contributions of Mrs Rowan - is Neil Campbell. 98 The trustee relied on the fact that Mrs Rowan was a party to, and carried liability under, the building contract with Dennis Homes and all of the facility agreements and mortgages with respect to lot 1102, albeit that her actual cash contributions were limited to a maximum of $66,688. 99 Even if non-monetary contributions are to be taken into account, the contributions of the Campbells far outweigh Mrs Rowan's. While it is undoubtedly true that Mrs Rowan carried liability under the building contract and financing arrangements for lot 1102, the reality is that recourse to Mrs Rowan (who has few assets) was unlikely. If such non-monetary contribution were to be taken into account, it would be necessary to have regard to the following facts that: (1) As the trustee conceded in closing submissions, Neil Campbell was the person responsible for all discussions with Dennis Homes in relation to the building works on both lots 1102 and 1105 and with lenders in relation to the finance facilities; (2) Neil and Colin Campbell were also signatories of the building contract with Denis Homes and Mrs Rowan made no payments under that contract while the Campbells did; (3) Neil and Colin Campbell, and Neil and Cheryl Campbell were also signatories to financing arrangements and Mrs Rowan made no payments under any of those contracts (apart from $2,200 in application fees) but the Campbells did; (4) Neil and Colin Campbell gave mortgages over 18 and 18A Megan Avenue and the only security provided by Mrs Rowan was jointly with Neil and Colin Campbell over lot 1102; and (5) Guarantees were provided by Autus Australia and Colin Campbell. 100 In support of a contention that the interests in lot 1102 should be found to be as recorded on title, the trustee submitted that representations were made to lenders that Mrs Rowan was the 98% owner of lot 1102. The Court rejects that argument; the lenders were fully paid out (both as to principal and interest) by people or entities who were not Mrs Rowan and, in light of the nature of the security which was sought from Neil and Colin Campbell over 18 and 18A Megan Avenue, lot 1105 and the guarantee from Autus Australia and Colin Campbell, it is plain that the lenders did not place significant reliance on the proportion in which Mrs Rowan was registered as the proprietors of lot 1102.

VALUE OF LOT 1102 AND OCCUPATION FEE FOR LOT 1102 101 It was agreed that the "as is" market value of lot 1102 in mid-2018 was $1.5 million, based on a report by Philip Rowland Black annexed to his affidavit affirmed on 20 February 2018. 102 The Court allowed the applicants' objection to admitting Mr Black's evidence as to an occupation fee for lot 1102 for the period from October 2004. Mr Black's assessment of possible rent was founded on assumptions that defects in the house constructed on lot 1102 had been remedied, when that was not the case and in his view 19 Applecross Avenue was not rentable. Accordingly, his assessment of an appropriate rent was based on other four bedroom houses in the area. That was not evidence of the value of any occupation fee in relation to lot 1102.

CREDIT 103 Neil Campbell and Mrs Rowan were cross-examined. Neither was a convincing witness in relation to the entirety of their dealings. 104 The Court generally prefers Neil Campbell's evidence as to the circumstances in which Mrs Rowan came to place deposits of $25,000 each on lots 1102 and 1105 and be named as the purchaser of lot 1102 and the circumstances in which Mrs Rowan came to be registered as the holder of a 98/100 share as tenants in common with Neil and Colin Campbell in lot 1102 for the following reasons. 105 First, while Neil and Cheryl Campbell and Marilyn and Christopher Rowan had a friendly relationship before 2001 and Mr Rowan had been employed on a part-time basis in Neil Campbell's business, the extent of any joint arrangement between Neil Campbell and Mrs Rowan before mid-2001 was sharing a subscription to a business journal. 106 Second, a plan to harvest economies of scale by using the same suppliers, with Neil Campbell having design control and financial responsibility over lots he acquired while Mrs Rowan had design control and financial responsibility for her own lots is more credible as a first time venture than Mrs Rowan's evidence. Further, it is consistent with the Court's impression of Neil Campbell, which is that he likes to be in control. 107 Third, it was Mrs Rowan's evidence that she and her husband sold their Barden Ridge home to fund a project with Neil Campbell to develop his father's home at 18A Megan Avenue as a duplex which morphed into a joint plan to develop a number of blocks in Applecross Avenue. The Court accepts Neil Campbell's evidence that he had told Mrs Rowan of plans that he and his father were considering, which included discussions with officers of Bankstown Council but that he had no plan with Mrs Rowan. It is the Court's impression of Mrs Rowan that she exaggerated her role in plans developed by Neil Campbell and sought to insert herself into them. When Neil Campbell accepted her offer to place the deposits on lots 1101, 1102 and 1105, she obtained a foothold in development plans in which she could not otherwise afford to participate. The Court accepts Mrs Rowan's evidence given in cross-examination that, following the sale of the Rowans' Barden Ridge home, she only had enough cash ($75,000) to pay three deposits on lots in Applecross Avenue and all of her evidence demonstrates that she did not otherwise have ready access to substantial funds between 2001 and 2004. 108 Fourth, Neil Campbell's evidence that lot 1105 was always intended to be his family home is consistent with his family circumstances. Neil and Colin Campbell had homes on adjoining land at 18 and 18A Megan Avenue, Bankstown. Neil, Cheryl and Colin Campbell were shareholders of Autus Australia and they were all directors of it, with Colin Campbell retiring as a director in June 2002 and Cheryl retiring as a director in April 2005. Neil Campbell was a cosignatory of his father's Police Credit Union account. Neil and Colin Campbell had discussed developing 18A Megan Avenue, Bankstown as a duplex. The Court accepts Neil Campbell's evidence that he intended to move his family to Castle Hill and develop lot 1105 as his family home with provision for a self-contained apartment for his father at the time the deposits were made. 109 Fifth, even allowing for the time that elapsed between relevant events and when Mrs Rowan gave her evidence, her evidence in relation to the circumstances in which she came to be involved in lots 1102 and 1105 is less credible. She was evasive on some issues, such as whether she was the author of the spreadsheet which appears at CB119-121 and deals with projections in respect of lots 1101, 1102, 1105, 12 and 13. Her evidence that Neil Campbell was not angry that she had not placed a deposit on lot 1101 and had her own name recorded in relation to lot 1102 is not sustainable having regard to the September 2008 summation which predates the threats of proceedings against Neil Campbell made by Mrs Rowan's legal advisors and the proceedings commenced by Autus Australia against Mrs Rowan and could not be regarded as written in contemplation of those proceedings or these proceedings. 110 Sixth, the Court does not accept Mrs Rowan's evidence about when the conversations occurred concerning capital gains tax and when the agreement was made that she and Neil Campbell would each take a management fee of $20,000 from the proceeds of sale of lot 1102. It is entirely possible that the effluxion of time has caused her to misplace the order of events, but the evidence given in her affidavit concerning that timing is also self-serving in that it appears to be designed to support her claim that both lots 1102 and 1105 were the subject of a joint venture. 111 Seventh, there is no evidence that Mrs Rowan sought a share of the proceeds of sale of lot 1105 in 2004. 112 Having said that, Mr Campbell's sense of grievance, which is apparent in the September 2008 summation and later correspondence with Mrs Rowan's legal representative is such that it invites caution about aspects of his evidence and some doubt about his honesty. This primarily relates to the period from around the time lot 1105 was sold, particularly in relation to whether $50,000 was paid to Mrs Rowan in October 2004 as a loan from Autus Australia, or as repayment of the loan for the deposits or (as Mrs Rowan says) as an advance repayment of her "contribution" to the venture. So too does the attitude revealed in the September 2008 summation and later correspondence, that Mrs Rowan was obliged to take responsibility for certain costs blowouts when that was not a term of the draft joint venture agreement which Neil Campbell sought to have Mrs Rowan sign as late as September 2003 when the house on lot 1102 was nearing completion. 113 One of the Agreed Issues in Dispute is the effect of Colin Campbell and Cheryl Campbell having failed to give evidence. The trustee properly conceded that, having regard to Colin Campbell's health at the time of the first tranche of hearings and his death before the second tranche, no adverse inference should be drawn from his failure to give evidence. However, the trustee submitted that: (1) Cheryl Campbell ought to have given evidence about whether Neil Campbell was entitled to benefit from her contributions. The Court accepts the applicants' submission that, as Cheryl Campbell is a party to the proceedings but was not a party to the arrangements between Mrs Rowan and Neil Campbell, there is no adverse inference to be drawn from her failure to give evidence on that issue. (2) Cheryl Campbell ought to have given evidence about whether they could afford to pay rent and mortgage repayments when they went into occupation of lot 1102. For the reasons given at [153]-[154], the Court is also not satisfied that any adverse inference should be drawn from Cheryl Campbell's failure to give evidence on that issue.

WHAT WERE THE TERMS OF THE JOINT VENTURE AGREEMENT? 114 The applicants submitted, and the trustee did not dispute, that what the terms of the joint venture agreement are is a question of fact to be determined by reference to what the parties say they agreed, contemporaneous documents and how the parties conducted themselves: see County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [7] (Spigelman CJ). 115 As indicated above: (1) It is an agreed fact that Mrs Rowan advanced the deposits on lot 1102 and 1105; (2) The trustee now accepts that, by the end of 2001 when the contracts for purchase were settled, lot 1105 was not part of any joint venture agreement and he no longer seeks relief in relation to that property. For reasons previously given, in the Court's view, that concession was properly made. 116 Whatever Mrs Rowan's belief as at 26 July 2001, the Court does not accept that (as pleaded by the trustee) there was a common understanding at that time that lots 1102 and 1105 would be developed and sold and the net profits shared between Neil Campbell and Mrs Rowan or that, as part of that arrangement, she would get a management fee of $20,000 in respect of lot 1102 and he would get a $20,000 management fee in relation to lot 1105 before profits were shared. (The trustee's pleadings reverse the lots in respect of which the management fee was to be paid, but that order was not logical.) The Court also does not accept Mrs Rowan's evidence that at that time, she had a conversation with Neil Campbell in which it was agreed that she should be named as purchaser with the intent of avoiding capital gains tax liability. As indicated above, in the Court's view Mrs Rowan has brought forward events to a period before 26 July 2001 and inaccurately included lot 1105 in them. 117 As at 26 July 2001, the payment of the deposits constituted a loan to Mr Campbell, payable on demand (as pleaded in the points of claim), even though Neil Campbell "thought that [he] could defer a repayment to Marilyn for at least a few months, because of our mutual trust and friendship". 118 In response to issues 6 and 7 of the Agreed Issues in Dispute, the Court finds that, on the balance of probabilities, by the time the purchase of lots 1102 and 1105 were completed in December 2001, Neil Campbell and Mrs Rowan had the following common intention on which they acted, in the nature of a joint venture agreement with respect to lot 1102: (1) Neil Campbell, Colin Campbell and Mrs Rowan would hold their respective registered interests in lot 1102 for and on behalf of the joint venture to purchase lot 1102, construct a house on it and sell it with a view to profit; (2) Lot 1102 would be registered in Mrs Rowan's name as to a 98/100 share and in the names of Neil Campbell and Colin Campbell as to a 1/100 share each. This was with a view to minimising capital gains tax (for the benefit of all of them) and as security for Mrs Rowan's contributions, but it was not intended to be an accurate reflection of their beneficial interests in lot 1102. The transfer documents which appear at CB 132-134 gave effect to the joint venture agreement; they did not vary it as submitted by the trustee; (3) Upon sale of lot 1102 with the constructed house, they would first be repaid contributions towards the costs of acquisition, construction and disposal of lot 1102, including financing costs; and (4) Neil Campbell and Mrs Rowan would each be entitled to the remaining sale proceeds of lot 1102 in proportion to their respective contributions to the acquisition, construction, and disposal of lot 1102, including financing costs, as a total of all such contributions made by or on their respective behalf. 119 The reasons for this view are as follows. 120 First, however unwelcome the manner of Mrs Rowan's intrusion into his affairs was on 26 July 2001, Mr Campbell adjusted to the consequences of Mrs Rowan's unilateral actions and, as he conceded in his affidavit sworn on 20 June 2017, he "tolerated" her being named as purchaser of lot 1102 and they came to an agreement about jointly developing lot 1102 by the time the purchases were completed on 14 December 2001. 121 Second, the Court accepts Mr Campbell's evidence that, because he intended to sell lot 1102 after completing construction, he did not think he needed to do anything about Mrs Rowan's inclusion as a registered proprietor of that land until later, although it is noteworthy that he required that both he and his father be registered as having a 1% interest each. More relevantly, the evidence demonstrates that he also sought to give effect to his desire to be able to take advantage of the $50,000 deposit to avoid drawing down on his loan over 18 Megan Avenue and to make a virtue of Mrs Rowan's requirement to remain on title until she was repaid the deposits (and other payments made by her) by seeking to minimise capital gains tax liability. He sought to achieve those ends by drafting the Transfers in the manner that he did. The Court accepts Neil Campbell's evidence that, based on some information on capitals gains tax which he obtained at about the time he prepared the second transfer, he thought that he may be able to minimise his capital gain tax liability on lot 1102 when it was eventually sold if Mrs Rowan was shown on the title. Both Neil Campbell and Mrs Rowan gave evidence that she agreed and she signed the Transfers giving effect to that agreement. 122 The Court accepts Mrs Rowan's evidence that Neil Campbell said: I have decided that my family will keep the Lot 1105 and build it as our family home. The property at Lot 1102 will still be sold, and your interest in that property will increase accordingly 123 This evidence does not reflect any change to Mr Campbell's intentions with respect to lot 1105. However, the words "your interest in the property will increase accordingly" said in relation to lot 1102 was an affirmation that the $50,000 paid in deposits on lots 1102 and 1105 and the stamp duty and application fees she paid would be treated as a "contribution" by Mrs Rowan to the purchase and development of lot 1102. This finding is in response to issue 3(a) of the Agreed Issues in Dispute. 124 The Court accepts that as at 26 July 2001, the $50,000 paid in deposits had the character of an on demand loan (as pleaded in the points of claim) and that Mr Campbell might have believed that he would be able to resist repaying the loan for a few months. However, they did not retain that character. It is Mrs Rowan's evidence that she had no choice but to accept Mr Campbell's position with respect to lot 1105. It is not plausible that Mrs Rowan would not, in 2001, seek repayment of at least $25,000 or all $50,000 and the $16,688 she paid for stamp duty and application fees on the contracts unless she was to derive some benefit from advancing those moneys. It is Mrs Rowan's evidence, which the Court accepts, that she regarded the moneys advanced as an investment, that is, that she expected a return from the development and ultimate sale of lot 1102. The draft joint venture agreement proffered by Neil Campbell to Mrs Rowan in February 2003 and again in September 2003 is evidence that he shared that view. 125 Third, and most importantly, in his affidavit sworn on 20 June 2017, Neil Campbell concedes and accepts that, by February 2003, he and Mrs Rowan had a verbal agreement for jointly developing lot 1102, deducting a management fee of $20,000 each before distributing sale proceeds in proportion to their respective contributions to the acquisition, construction and disposal of lot 1102 as a total of all such contributions. 126 Mr Campbell made his concession having regard to 4 February 2003 email to which was attached the draft joint venture agreement (see [19] and [20] above), which appear to have been drawn to his attention between the swearing of his August 2016 and June 2017 affidavits. While he says that he does not recall when exactly the conversations which formed the basis of the draft joint venture agreement occurred, he thinks it was between when he found out that she had only put deposits on two lots and when he asked her to sign the Transfers in late 2001. The Court accepts that as the most likely timing, given that the Transfers were signed around then, the loan to complete the purchase of the lots was drawn down on 14 December 2001 and it was at that point that security was given by Neil and Colin Campbell. 127 The Court accepts that Neil Campbell sought to document the joint venture agreement in February 2003 because this was the time at which they were about to draw down on the Suncorp facility and he had just been informed that BankWest would provide the development facilities for lots 1102 and 1105. Mr Campbell renewed the request to formalise their arrangements by email sent on 25 September 2003. 128 Although Mrs Rowan did not sign the draft joint venture agreement, she also did not tell Mr Campbell that she disagreed with its terms. She explained that she was not prepared to sign it until she got legal advice and she could not afford that. However, there is no evidence from either of Neil Campbell or Mrs Rowan that she disputed its broad terms nor is there evidence in correspondence between Mrs Rowan's lawyers and Neil Campbell during 2008-2015, that she disputed the essential elements of the draft joint venture agreement. In the 2002/2003, 2004/2005 and the 2008/2009 tax years, Mrs Rowan specified her "home address" as being 19 Applecross Avenue. 129 It is notable that the draft joint venture agreement makes reference to Colin Campbell having a share in the joint venture, reflecting the role he played in providing guarantees and security over 18A Megan Avenue. For the purposes of the relief now sought by the applicants, and having regard to the representative role played in these proceedings by Neil Campbell in relation to Colin Campbell, the fact that Colin Campbell is mentioned in the draft joint venture agreement is not material. In any event, while (as submitted by the trustee) it is true that elements of the role of Colin Campbell are unclear, the evidence given by both Neil Campbell and Mrs Rowan is to the effect that the dealings with respect to lot 1102 were between them and Colin Campbell's contributions could not be construed as being for Mrs Rowan's benefit to the extent of her registered holding in lot 1102. 130 The trustee submitted that under the joint venture agreement, Neil Campbell and Mrs Rowan would divide any profit from the sale of lot 1102 equally between them. The draft joint venture agreement does not suggest that Neil (and Colin) Campbell would share in any surplus equally with Mrs Rowan and there is nothing in the evidence given by Neil Campbell or Mrs Rowan that suggests that. Mrs Rowan's evidence in cross-examination is that the joint venture was one in which the proceeds of sale would be divided in proportion to "inputs": T 159:39-44. It is also Mrs Rowan's evidence that she had no capacity to finance the development of lot 1102 beyond her direct contribution (to a maximum of $75,000) and that to the extent that it was required, it would be provided by Neil Campbell. 131 Neil Campbell and Mrs Rowan were not in a domestic relationship and (beyond the manner in which title to lot 1102 is registered) there is nothing to suggest that, at any stage, either Neil Campbell or Mrs Rowan had an intention that either would benefit beyond their proportionate contribution to the venture. On that basis, and despite the fact that Mrs Rowan was a signatory of the building contract and most of the financing arrangements, there is no reason to infer that there was a common intention that any profit would be divided equally between them, as opposed to by reference to their respective (very unequal) contributions. 132 Fourth, while there is reference to a management fee payable to Mrs Rowan and Mr Campbell in the draft joint venture agreement, Mr Campbell and Mrs Rowan gave conflicting evidence about it. It is not clear that any position had been reached by the time that the purchase of lots 1102 and 1105 was completed and it is not clear that it survived the exigencies of the development of lot 1102. As the draft joint venture agreement was never signed, no claim was made for such a fee in Mrs Rowan's solicitors' correspondence and neither the applicants nor the trustee appears to have pressed that feature of the arrangement in their submissions, the Court does not find that it was a feature of the joint venture agreement between Mrs Rowan and Neil Campbell. 133 It is notable that, despite the assertions made in Mr Campbell's correspondence from the September 2008 summation onwards, no claim was made in these proceedings that Mrs Rowan's interest should be diminished having regard to the loss of a $5,000 allowance which would have been made if a deposit had been placed on lot 1101, Mrs Rowan's tardiness in signing finance documents in 2001 which made the initial loan to purchase lots 1102 and 1105 more expensive, charges imposed by PEK Holdings for delayed settlement, cost overruns due to errors in the topographical survey. That was a prudent forensic choice. Mr Campbell acquiesced in all conduct that occurred before settlement of the purchase of lots 1102 and 1105 and he was asserting as late as September 2003 that the draft joint venture agreement should be signed. There was no term of the draft joint venture agreement that such costs would be borne by Mrs Rowan and it is Mr Campbell's evidence that when he later suggested that she should bear responsibility for them, she did not respond, indicating that she did not accept that was the case.

WERE THE DEPOSITS REPAID TO MRS ROWAN IN OCTOBER 2004? WHAT IS THE EFFECT OF THE PAYMENT OF $50,000 TO MRS ROWAN IN OCTOBER 2004 ON HER CONTRIBUTION TOWARDS THE PURCHASE, DEVELOPMENT AND CONSTRUCTION OF LOT 1102 134 This is issue 3(b) of the Agreed Issues in Dispute. 135 In her evidence given in cross-examination, Mrs Rowan characterised the payment to her of $50,000 in October 2004 as an advance of the amounts she would be entitled to receive upon sale of lot 1102. Her lawyers generally characterised the $50,000 as having been repaid, although there is also a reference to the payment being an advance on the proceeds of sale of lot 1102. From at least 2 August 2005 until June 2017, Mr Campbell characterised the payments as a loan either from himself or from Autus Australia. The Court finds that the two payments of $25,000 each made to Mrs Rowan in October 2004 were repayment of the deposits paid on lots 1102 and 1105 and not, as submitted by the trustee, a loan from Autus Australia. The Court finds that the $50,000 payment is properly characterised as the repayment of Mrs Rowan's contributions to that amount, leaving $16,688 as her cash contribution. 136 The reasons for those findings are as follows. 137 First, the Court accepts that, in October 2004, Mrs Rowan asked Neil Campbell for an advance of $25,000 out of the sale of the proceeds of 25 Applecross Avenue and he agreed to pay her $50,000 at that time. The request was not made because Mrs Rowan thought that she was entitled to any share in the sale proceeds of lot 1105, but it is notable that she sought the amount of $25,000 (equal to the deposit on lot 1105) at a time when lot 1105 was sold. Her acceptance of $50,000 should not be understood as an abandonment of the joint venture agreement. It is notable that, in October 2004, it was the intention of Mrs Rowan and Neil Campbell that the house be sold; it remained on the market until August 2006, the Campbells were moving into it rent free and without complaint from Mrs Rowan, and the joint venture had had the use of the $50,000 since 26 July 2001. 138 Second, it is Mrs Rowan's evidence that, when received, she understood the $50,000 to have been provided by Neil Campbell; she only learnt later that it came from Autus Australia. There is no reason to doubt that evidence. 139 Third, there is evidence that, on 18 October 2004 and again on 19 October 2004, Autus Australia's account with the Commonwealth Bank was debited with an amount of $25,000 itemised as "AUTUS - TRUST AC RETURN OF LOAN" and "DE A/C CLOSED RETURN TO ROWANS" respectively. On 21 October 2004, that account was credited with an amount of $25,000 itemised as "AUTUS AUSTRALIA AUTUS AUSTRLAIA PTY LTD". In his written submissions, counsel for Mr Campbell submitted that the payments on 18 and 19 October 2004 were made by Autus Australia to Mrs Rowan, albeit that there is no identification of an account into which the moneys were transferred and that $25,000 was repaid to Autus Australia out of his joint account with Cheryl Campbell on 21 October 2004. 140 Also in evidence is a page of a statement from a St George Bank account in the name of Neil and Cheryl Campbell which indicates that on 21 October 2004, their account was debited $25,000 which is described as "AUTUS AUSTRALIA RETURN TO ROWAN.S". While the evidence does not account for the payment of all $50,000 from Neil or Neil and Cheryl Campbell to Autus Australia, the Court accepts that, as submitted by counsel for Mr Campbell, it is unlikely that the $25,000 payment to Autus Australia's account with that designation would have been made within such a short time if there was a separate $50,000 loan by Autus Australia to Mrs Rowan. 141 The Court finds that, as pleaded in the points of claim at [16], although $50,000 was paid by Autus Australia to Mrs Rowan, it was in effect a loan to Neil Campbell and it was repaid to Autus Australia out of Neil and Cheryl Campbell's account as to $25,000 within days. The language of the notations made on the account statements suggests that, at that time, Neil Campbell thought he was making a return of a loan made by "the Rowans". 142 Fourth, the Court accepts Mrs Rowan's evidence (see [38] above), which was disputed by Neil Campbell, that some months after the $50,000 was paid to her in October 2004, Mr Campbell told her that the ATO was auditing Autus Australia and there was a need to document a loan of $50,000 from Autus Australia to her to avoid the payment as being treated as a dividend. The Court does not accept Neil Campbell's evidence given in his affidavit sworn on 20 June 2017 "correcting" his position concerning the $50,000 payment, that he referred to the payment as a loan at Mrs Rowan's request to assist her in how her accounts were prepared for her business. 143 Mrs Rowan's evidence is not inconsistent with Mr Simpson's statutory declaration. Further, the terms of the loan agreement are themselves strange in the circumstances existing at the time the document was signed and inconsistent with evidence given by Neil Campbell and Mrs Rowan. The amount of the loan is said to be a maximum of $400,000, it purports to be for the purpose of residential construction in Applecross Avenue but that construction was complete by October 2004, let alone 15 November 2005, and it requires Neil Campbell's name to be put on title as security and the basis that his name "will be removed once the loan is repaid", when his name was already on title and Neil Campbell and Mrs Rowan were in a joint venture relationship in relation to lot 1102. 144 The Court concludes that the loan agreement is a fiction and does not accurately reflect the fact that, as now submitted by counsel for the applicants in closing submissions at [55], Autus Australia made the loan to Mr Campbell by way of paying $50,000 to Mrs Rowan, not as a loan to Mrs Rowan. 145 Fifth, in cross examination, Neil Campbell explained the inconsistency between his verification of the application made to the Local Court in June 2012 for recovery of moneys said to be owing by Mrs Rowan under the loan agreement and the "correction" of his evidence by way of his June 2017 affidavit at [29]-[31] on the basis that his solicitor in 2012 "began to question the basis of the $50,000 because Marilyn refused to do anything. So that was the basis of this because she wouldn't even - anyway, that was the basis for …". 146 This explanation reflects badly on his honesty in demanding and commencing proceedings to recover moneys to which he was not entitled and the reliability of his evidence, but it is consistent with the position now put by the applicants that the $50,000 paid by Autus Australia to Mrs Roan was in effect a loan to Neil Campbell to fund the payments to Mrs Rowan. 147 Sixth, Mrs Rowan's solicitors referred to the payment as a repayment of the deposits in the letters to Mr Campbell or his lawyers dated 1 December 2008, 29 January 2009, 7 August 2009, and 5 August 2013. While her solicitors also characterised the payment of $50,000 as an advance on amounts which she would receive upon sale of lot 1102 in the letter dated 30 July 2012, which is consistent with Mrs Rowan's evidence, the payment is properly characterised as a repayment of the deposits.

WAS THE JOINT VENTURE BREACHED, VARIED OR ABANDONED? 148 What follows responds to issues 9, 10 and 11 and 20 of the Agreed Issues in Dispute. 149 As indicated above, the Court finds that the terms of the joint venture agreement were as set out at [118] above. The execution of the transfer documents that appear at CB 132-134 did not change, but rather gave effect to, the joint venture agreement. 150 While it appears that Mrs Rowan's efforts in relation to the joint venture did not meet Mr Campbell's expectations and he dealt with the builder and financiers, it was her view that from at least mid-2003 that she was excluded from decision-making. In this context, it is notable that the draft joint venture agreement specified the "primary obligations" obligations of Mrs Rowan and Mr Campbell as being: Marilyn Rowan Cash input used in relation to the acquisition, construction and disposal of Lot 1102 Meeting the ATO 'primary place of residence' requirements for Lot 1102 to minimise capital gain tax obligations. Neil Campbell Guarantor for finance purposes in relation to the acquisition and construction of Lot 1102. Cash input used in relation to the acquisition, construction and disposal of Lot 1102 151 There was no specification as to the respective amounts of cash to be contributed, but as at September 2003, when Neil Campbell again sought to have Mrs Rowan sign the draft joint venture agreement, it was clear that her cash contributions would be limited to $66,688 and the extent of her non-monetary contributions was also known. Further, the expectation that the contributions might be unequal is reflected in words of the draft joint venture agreement, being "the 'net return', at the point of disposal, will be in accordance with the inputs (cash, security and expenses incurred) of each of the three parties, after the costs associated with the acquisition, construction and disposal of Lot 1102 have been taken into account". The Court notes that there was a provision for payment of a $20,000 management fee to each of Neil Campbell and Mrs Rowan to reflect "inputs" which might reflect an expectation of equal effort and financial contribution but it was reasonably clear by February 2003 and certainly clear by September 2003 that their contributions had not and would not be equal. 152 Mrs Rowan did not abandon the joint venture agreement nor did she act or fail to act in a way that estops the trustee from pursuing Mrs Rowan's rights under the joint venture agreement. While Mrs Rowan asked to receive $25,000 out of the sale proceeds of lot 1105 and she was paid $50,000 through Neil Campbell, she did not seek to withdraw all her contributions from the joint venture. Further, 19 Applecross Avenue was on the market for sale at that time. Her name remained on title and on financing documents and it appears that from the 2002/2003 financial year onwards she named 19 Applecross Avenue as her place of residence. 153 In the Court's view nothing much turns on whether the Campbells could or could not in fact afford to pay ongoing financing costs on lots 1102, 1105 and 18 Megan Avenue in October 2004 and rent on a new residence when the Campbells made the decision to accept an offer made on 25 Applecross Avenue and move into 19 Applecross Avenue. Neil Campbell's evidence that his finance costs were around $13,000 a month suggests that it was likely to be a burden and the Court sees no reason to doubt that evidence even though Cheryl Campbell was not called to give evidence as to that matter. Further, Mrs Rowan was not in a financial position to contribute to interest or expenses. 154 The fact is, the Campbells were bearing the burden of financing the purchase and construction of improvements on lot 1102 without any contribution from Mrs Rowan beyond $66,688 (and only $16,688 by October 2004). Mrs Rowan accepts that she did not complain about the Campbell's residence in lot 1102 in circumstances where the property remained on the market for sale. 155 Having said that, the Court finds that the joint venture agreement ended when, on or about 31 August 2006, Mr Campbell unilaterally decided that 19 Applecross Avenue should be taken off the market because he and his wife had determined that, in the future, it would be used by them as their family home and he believed that the property could not be sold at a price acceptable to him and none of the prices offered would have exceeded the amount of the contributions made to 31 August 2006 as now established by the Revised Summary of Contribution. That action meant that the ultimate purpose of the joint venture, being the sale of the development property at a profit, could not be fulfilled. The venture failed at that point. 156 When, in early September 2006, Mrs Rowan learned of the Campbells' decision to keep 19 Applecross Avenue as their family home, Mrs Rowan appropriately asked for an accounting which would establish what the contributions to the venture had been. Only Neil Campbell had the information on the basis of which an account of contributions could be made. Mrs Rowan did not get an accounting of any sort (despite persistent requests) until September 2008, and it may be that the more detailed accounting was not provided until December 2008. As the applicants assert that there was a common intention constructive trust or a constructive trust arising on the failure of the joint venture agreement, the account was necessary to establish the extent of the interests of Mrs Rowan and Mr Campbell (or persons or entities claiming through him) in lot 1102. Her request for (and later insistence on getting) an accurate account was therefore justified. 157 The correspondence from Mrs Rowan's solicitors after September 2008 was directed to obtaining a more accurate accounting and then to a settlement; that did not involve abandonment of the venture by Mrs Rowan. Her settlement offers were not accepted and counter-offers made by Neil Campbell were made and rejected. In those circumstances, the offers conveyed by Mrs Rowan's solicitors are not appropriately interpreted as a waiver of any of her rights under the joint venture agreement. The rights asserted by Neil Campbell in his correspondence are not supported by the terms of the joint venture agreement or the circumstances of the payment of $50,000 to Mrs Rowan as found by the Court (or, in that latter regard, as now asserted by Neil Campbell). In so doing, Neil Campbell failed properly to account to Mrs Rowan for her interest in lot 1102.

IS MRS ROWAN'S INTEREST IN LOT 1102 HELD ON TRUST? ARE THE INTERESTS TO BE DEALT WITH UNDER THE TERMS OF THE JOINT VENTUE AGREEMENT OR THE PARTNERSHIP ACT 1892 (NSW)? WHAT INTEREST VESTS IN THE TRUSTEE UNER S 58(1) OF THE BANKRUPTCY ACT? 158 This section responds to issues 12 and 13 of the Agreed Issues in Dispute. 159 Although the applicants made extensive written submissions concerning whether Mrs Rowan held her interest in lot 1102 upon an express, resulting or constructive trust, the trustee made no submissions disputing the propositions of law contended for by the applicants. The applicants' propositions included that: (1) The starting point is to presume a resulting trust in proportion to the respective contributions, relying on Neilson v Letch (No 2) [2006] NSWCA 254 at [25]-[28] (Mason P, McColl and Basten JJA agreeing); and (2) Where land is acquired for development, contributions to be taken into account relate not only to amounts paid for purchase of the land, but also include development costs and principal and interest payments under a mortgage, relying on Bloch v Block [1981] HCA 56; 180 CLR 390 at 398, 402, Calverley v Green [1984] HCA 81; 155 CLR 242 at 263, Trustees of the Property of Cummins (a Bankrupt) v Cummins [2006] HCA 6; 227 CLR 278 at 301. 160 The applicants submitted that, even if a resulting trust is rebutted by the terms of the joint venture agreement, the result is the same. They submit that the Court should find that the parties' intention was such as to create a common intention constructive trust and the parties acted to their detriment on the basis of that common understanding, relying on Allen v Snyder [1977] 2 NSWLR 685 and Shepherd v Doolan [2005] NSWSC 42 at [30]-[46]. 161 The applicants also say that, by at least December 2008, the joint venture had failed and a constructive trust should be imposed on the basis that their interests reflect their contributions to the purchase and development of lot 1102 (including interest on loans) (in effect, the terms of the joint venture agreement) having regard to the principles in Muschinski v Dodds [1985] HCA 78; 160 CLR 583 at 617-620 (Deane J, with whom Mason J agreed); Baumgartner v Baumgartner [1987] HCA 59; 164 CLR 137 at 148 (Mason CJ, Wilson and Deane JJ). They say that the same result would be achieved under s 44(b) of the Partnership Act. 162 It is the trustee's position that, absent a determination of constructive trust as pleaded by the applicants, "the register remains unaffected", by which the Court understands the trustee to say that Mrs Rowan holds a 98% interest as tenant in common in lot 1102 and the applicants have no beneficial interest in Mrs Rowan's share of lot 1102. As the applicants point out, that is contrary to the trustee's own pleadings in the cross-claim that Mrs Rowan and Neil and Colin Campbell held their interest in lot 1102 on trust or as fiduciaries in the joint venture. 163 In written submissions in reply on the cross-claim (but not in submissions responding to the closing submissions in chief), counsel for the trustee sought to rely on a ground of unconscionable conduct by Neil Campbell which was said to disentitle the applicants to equitable relief, relying on Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 447 at 474 (Deane J) and Louth v Diprose [1992] HCA 61; 175 CLR 621 at 626 (Brennan J). That claim was not addressed in oral submissions. That claim is rejected: it was not pleaded and there is no evidence of special disadvantage of Mrs Rowan which would call into play the principles discussed in those cases. 164 The Court has found that the common intention of Neil Campbell and Mrs Rowan reached by the time of completing the purchases of lots 1102 and 1105 on 14 December 2001 was that Neil and Colin Campbell and Mrs Rowan held their interests in lot 1102 for and subject to the joint venture agreement set out at [118] above. The basis of that finding is set out above and meets the evidentiary standard discussed by Gleeson CJ in Green v Green (1989) 17 NSWLR 343 at 355. Their common intention rebutted any resulting trust which might otherwise have arisen. Both of them acted on that common intention by signing the various loan and mortgage documents and building agreements, in Mrs Rowan's case by contributing $66,688 towards the deposits, stamp duty and application fees and in the Campbells' case by providing security over other assets owned by them and paying financing costs and some construction costs. While an express trust of land requires writing under s 23C(1)(b) of the Conveyancing Act, the Court is satisfied that the elements of a common intention constructive trust exist such that the absence of writing will not defeat the interests of Neil Campbell (or those who might claim through him) due to s 23C(2) of the Conveyancing Act. The Revised Summary of Contributions is sufficient to establish what their respective contributions are and their intention that they should recover first their contribution and then any profit in proportion to their contribution is clear having regard to the findings made by the Court. That is sufficient to determine the manner in which Mrs Rowan and Neil Campbell hold their respective interests as discussed by Gleeson CJ in Green v Green at 355. It would be inequitable for Mrs Rowan or the trustee claiming through her to assert a greater interest: see Allen v Snyder at 694 (Glass JA, Samuels JA agreeing). 165 If that finding were thought to be wrong, the applicants assert that the joint venture agreement failed by December 2008 on the basis that the parties abandoned the venture or Mrs Rowan waived her rights and a constructive trust should be imposed having regard to the principles in Muschinski v Dodds at 617-620 and Baumgartner v Baumgartner at 148 (Mason CJ, Wilson and Deane JJ). 166 In the Court's view the joint venture failed on 31 August 2006, Mrs Rowan did not waive her rights for an account and Mr Campbell failed properly to account to her for the reasons set out at [155]-[157] above. 167 In Baumgartner v Baumgartner at 147-148, the High Court noted that a constructive trust may be imposed irrespective of intention and that its foundation is that a refusal to recognize the existence of the equitable interest amounts to unconscionable conduct and the trust is imposed as a remedy to circumvent that unconscionable conduct. The High Court then set out the following quote from Deane J's judgment in Muschinski v Dodds at 618: … the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude (18) and per Jessel M.R., Lyon v. Tweddell (19) 168 Is this a case where the venture failed "without attributable blame"? 169 Mr Campbell's failure to provide any accounting for almost two years was unjustified having regard to the degree of control he exercised over the construction and financing of the house on lot 1102. The tenor of the September 2008 summation is rancorous and riddled with misconceptions about how costs should be determined. For instance, its assertions of liability by Mrs Rowan were not justified by the terms of the joint venture agreement as found by the Court or the draft joint venture agreement. Mr Campbell proffered the draft joint venture agreement for signature by Mrs Rowan twice after most of the events of which he complained had occurred. Later correspondence from Neil Campbell and his lawyers was equally ill-based in light of the Court's findings concerning the loan agreement and Neil Campbell's assertion in these proceedings that he repaid Mrs Rowan $50,000 in deposits. 170 However, while it is impossible to construe many of Mr Campbell's actions after October 2004 as having been undertaken in good faith, the Court accepts that it would be unconscionable for Mrs Rowan and the trustee who claims through her to take the value which was so disproportionately contributed by Neil Campbell and those who claim through him on the basis of the joint venture agreement. 171 The evidence demonstrates that there had been a paucity of offers for 19 Applecross Avenue between 2004 and 2006 and neither of the highest offers received in that time, $1.22 million and $1.15 million, would have covered all contributions to expenses of purchase and development of lot 1102, including financing costs as at 31 August 2006 (being $1,366,147.49) as has now been established in the Revised Summary of Contributions. 172 If Mr Campbell was not prepared to limit loss in August 2006 by selling the property at the best price available and instead wished to keep the property for himself, it was necessary for him to account to Mrs Rowan for her share of the contributions, taking into account any loss they might make having regard to the value of the property in the eyes of possible purchasers. Since Mr Campbell was not prepared to do that and enjoyed the benefit of continuing to live in No 19, it is inequitable that his interest be inflated by interest costs incurred after the failure of the joint venture on 31 August 2006. Equity requires that a constructive trust be imposed to the same effect as the joint venture agreement as at that date and that they recover their contributions and then share in any profit proportionately to their contributions. If Mr Campbell wishes to retain the property, then he must pay the trustee those moneys to which Mrs Rowan would be entitled and bear the costs of the transfer for of the property into his name or it is appropriate to order that the property be sold. 173 For completeness, the Court finds: (1) Section 23C(2) of the Conveyancing Act exempts both the common intention constructive trust and the constructive trust imposed following the failure of the joint venture agreement from the requirement of writing under s 23C(1). Section 54A of the Conveyancing Act does not operate to prevent that outcome. (2) On this basis, having regard to the Revised Summary of Contributions, the Campbells (through Neil Campbell) should be taken to be entitled to an interest in lot 1102 based on a contribution of $1,349,579.49 and Mrs Rowan based on a contribution of $16,688. Those interests were vested on 31 August 2006. As at the date of Mrs Rowan's bankruptcy, the Campbells' beneficial interest did not vest in the trustees and her beneficial interest did. (3) As 19 Applecross Avenue is valued at $1.5 million, there is a surplus of value over contributions of $133,852.51. Mrs Rowan's share of that surplus is in the same proportion as her beneficial interests set out at (1) immediately above and it vests in the trustee, while the rest vests in Neil Campbell and those who claim through him. (4) The Court does not accept that the matter falls to be determined under the Partnership Act. The submissions made by the trustee in this regard were mere assertions without reasoning; this was a single venture subject to the joint venture agreement. (5) It is unnecessary to consider the applicants' estoppel claim.

SHOULD THERE BE AN OCCUPATION FEE? 174 The trustee contends that, as the applicants sought to establish their interest in the property by reference to mortgage fees paid after the Campbells occupied 19 Applecross Avenue, they should pay an occupation fees for the same period relying on Forgeard v Shanahan (1994) 35 NSWLR 206 at 223-224, paragraphs 8 to 16 (Meagher JA with whom Mahoney JA agreed) and Ryan v Dries [2002] NSWCA 3 at [72]-[77] (Hodgson JA). 175 The applicants submit that a co-owner who exercises his or her right to occupy and use a property is not liable to another co-owner for an occupation fee unless one of two exceptions apply, relying on Forgeard v Shanahan at 223 (Meagher JA); Draper v Official Trustee in Bankruptcy [2006] FCAFC 157; 156 FCR 53 at [102] (Rares J) and [163] (Besanko J). Those exceptions are: (1) Where there is ouster, which they say does not apply since Mrs Rowan had no objection to the Campbells occupying 19 Applecross Avenue and did not ask for rent; and (2) Where the occupier seeks from the other co-owner their share of amounts the occupier spent on maintaining and improving the property. An occupation fee only becomes payable as a set-off to any claim by the occupier to account and cannot exceed the amount claimed by the occupier: see W v D [2012] SASCFC 142; 115 SASR 61 at [72] (Kourakis CJ, Anderson and David JJ agreeing). 176 The applicants say that, contrary to the trustee's claim, an occupation fee cannot be counted as a contribution for the purpose of determining equitable interests in lot 1102. They agree that an occupation fee can be charged as a set-off against a claim by an occupier for payments over and above the respective beneficial interests and the obligation to account is in proportion to the beneficial interest, relying Forgeard v Shanahan at 218 and 226. They say that it would be inequitable to impose an occupation fee because it would give the trustee a windfall gain albeit that in this case the maximum amount would be about $5,000, even on Mr Black's calculations (on the basis that Mrs Rowan's contribution was $16,688). 177 The applicants say that Forgeard v Shanahan at 223-224 does not provide a basis for the trustee's claim as the principles there discussed by Meagher JA (which they say do not support an occupation fee in this case in any event) are principles that applied in partition actions and cannot be relied on elsewhere except in administration actions and other cases where there is a fund in court, for example, because of resumption. 178 The applicants say that Ryan v Dries was a resulting trust case concerning parties in a romantic relationship buying a home in which to live together. In such cases, repayments made on loans are not taken into account for purposes of assessing beneficial interests, but a party making payments in excess of their proportionate share (based on their beneficial interest) can require the other party to account for that excess. In Ryan v Dries, Hodgson JA found at [75] that the same principle applies as when a party in possession seeks an account for improvements from a co-owner. But that is not this case as the Campbells do not seek contribution from Mrs Rowan for her proportionate share of the mortgage repayments made or for continued upkeep and improvement. Rather, it is because of those mortgage payments (together with other contributions made in building the house on lot 1102 before the Campbells took occupation) that the Campbells say that they hold almost the entire beneficial interest in 19 Applecross Avenue. The applicants note that in the authorities where occupiers claim mortgage fees as an "improvement", they are not counted as affecting the parties' beneficial interest in the land. They are all concerned with domestic relationships. 179 The applicants also submit that any claim for an occupation fee up to 9 March 2012 (six years before these proceedings were commenced in the Supreme Court) was out of time having regard to ss 14,15 and 23 of the Limitations Act. 180 The applicants finally submit that there is no evidence as to the quantum of any occupation fee. They note that it is Mr Black's evidence that 19 Applecross Avenue is unsuitable for rental without a number of defects being fixed, yet he applied a 28.57% above average rental for four bedroom houses in the area. 181 The Court finds that no occupation fee should be allowed. The Court accepts the analysis of the authorities as submitted by the applicants as generally applicable but also notes the following: (1) Mrs Rowan and Neil Campbell were not in a domestic relationship and lot 1102 was not developed as a property intended for their use as a residence. (2) Mrs Rowan did not object to the Campbells' occupation of 19 Applecross Avenue nor has she, at any time, demanded rent. (3) During the period from October 2004 to 31 August 2006, the property was on the market for sale and the Campbells allowed visitations for that purpose. (4) The applicants claimed mortgage payments on the basis that it established their beneficial interest in lot 1102. While the parties accepted that repayments of principal should be allowed as a contribution towards the purchase and development of lot 1102, the Court has not accepted that interest payments after 31 August 2006 should be allowed on the basis that that is the point at which the constructive trust was imposed and the joint venture failed so that it would be inequitable to allow the Campbells' interest in lot 1102 to be enlarged by reference to those interest charges. The applicants do not claim that Mrs Rowan or the trustee should contribute to interest charges paid by the Campbells after 31 August 2006. It would therefore be inequitable to allow an occupation fee in relation to that period. (5) There is no admissible evidence of an appropriate rental amount for 19 Applecross Avenue before the Court.

SHOULD RELIEF BE DENIED BECAUSE OF AN ATTEMPT TO AVOID THE REVENUE? 182 This section responds to issue 15 of the Agreed Issues in Dispute. 183 The trustee submitted that the 4 February 2003 email and Neil Campbell's conduct in relation to lot 1102 (by which the Court takes the trustee to mean procuring the transfer of lot 1102 into Mrs Rowan's name as to a 98/100 share), he was endeavouring to avoid any obligation to pay capital gains tax and/or income tax on any sale at a profit and/or land tax obligations arising out of the ownership structure. He says that the conduct has a relevant nexus with the relief now sought by the applicants and therefore the Court should decline the relief, relying on Dering v Earl of Winchelsea (1787) 1 Cox Eq 318 at 319; 29 ER 1184 at 1185; Oliveri v Oliveri (1993) 38 NSWLR 665; Nelson v Nelson [1995] HCA 25; 184 CLR 538 at 581 (Dawson J) and 587 (Toohey J) and 611-613 (McHugh J); REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd [2017] NSWCA 269 and Lay v Pech [2018] NSWSC 460 at [77]-[79] (Robb J). 184 The applicants submitted, and the Court accepts, that the trustee's argument is contrary to well established principle, including that expressed by the High Court in Nelson v Nelson at 616-17 (McHugh J), reinforced in Miller v Miller [2011] HCA 9; 242 CLR 446 at [27] and Equuscorp Pty Ltd v Haxton [2012] HCA 7; 246 CLR 498 at [96]. On this basis, the crucial step is to identify the relevant public policy giving rise to the alleged illegality, beginning with the provisions of the relevant Act. If that policy is not infringed by the Court granting the relief sought or the relief can be fashioned so as not to infringe the policy, then there is no reason for the Court to refuse relief on account of any unlawful purpose connected with the circumstances of the case in which the relief is sought. As an example, in Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492 at [165] Heydon JA (Spigelman CJ and Sheller JA agreeing) said: Nelson v Nelson would require that Australian tax law be complied with in the sense that the following conditions would be imposed on the husband. He would be obliged to communicate with the Australian tax authorities with a view to ascertaining the amount of tax escaped, and now payable, together with interest and penalties, and obliged to pay the relevant amount. The fact that the evidence before the court does not permit the calculation of what is owing does not matter, because in Nelson v Nelson (at 572, 618-619) the majority granted the parties time to reach agreement on the relevant sum, and in default of agreement contemplated that the matter would be referred to the trial court for an appropriate finding. 185 In REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd, the New South Wales Court of Appeal reached the same result in ordering specific performance of a contract of sale that allegedly attempted to improperly avoid stamp duty. 186 The agreement between Neil Campbell and Mrs Rowan to have lot 1102 registered in her name as to 98/100 with a view to structuring their affairs so as to avoid capital gains tax and give Mrs Rowan security with respect to her deposits should not preclude the granting of relief sought by the applicants. As the applicants correctly point out: (1) The trustee did not take the Court to any of the specific legislation which he said Mr Campbell was seeking to avoid. (2) The trustee has not provided any evidence as to what capital gains tax, income tax, land tax or GST was in fact avoided by lot 1102 ownership interests being registered as they were in December 2001. (3) There is no reason to think that any capital gains tax or GST was avoided, as Mr Campbell and his family have used 19 Applecross Avenue as their residence since October 2004. 187 Further, there is no evidence that one of the purposes of Neil Campbell and Mrs Rowan was to avoid land tax. 188 In those circumstances, no illegality has been established which would disentitle the applicants to the relief sought.

CONCLUSION 189 The Court will direct the parties to bring in agreed orders which give effect to the Court's reasons or, if the form of orders cannot be agreed, their competing orders within 14 days. 190 The Court is minded to make a declaration along the following lines: (1) The purchase and subsequent development of lot 1102 was pursuant to a joint venture agreement between Neil Campbell and Mrs Rowan. (2) The payments recorded in the schedules marked as exhibits K and O in these proceedings as having been made in relation to purchase and development of lot 1102 (including financing costs) from accounts in the name of Neil Campbell, Neil and Cheryl Campbell, Colin Campbell, Autus Australia Pty Ltd and Innovated Leasing Pty Ltd inure for their benefit, through Neil Campbell (and without making any determination of the respective rights or liabilities as between them), not for the benefit of Mrs Rowan. (3) Mrs Rowan holds her 98/100 share of lot 1102 as tenant in common upon constructive trust for her bankrupt estate in the proportion that 16,688 bears to 1,366,147.49 and for Neil Campbell and those with a right to claim through him in the proportion that 1,349,579.49 bears to 1,366,147.49. 191 The Court is minded to make an order, having regard to the agreed value of 19 Applecross Road and the proportions in which interests on lot 1102 are held, that the applicants pay to the trustee the sum of $18,323.06 on or before a specified date in full and final satisfaction of the interest Mrs Rowan's bankrupt estate has in lot 1102. That payment will condition the other relief in favour of the applicants. 192 In their closing submissions, the applicants suggested alternate methods of achieving the transfer of Mrs Rowan's registered 98/100 share in lot 1102 to Neil Campbell. The Court would accommodate either method. The Court would be minded to order that Mrs Rowan be joined as a party (upon application being made under r 9.05(1) of the Federal Court Rules 2011 (Cth) and that she execute the necessary transfer in favour of Neil Campbell. Alternatively, the Court is prepared to make orders that the trustee provide an executed bankruptcy application under s 90 of the Real Property Act 1900 (NSW) to effect transmission of Mrs Rowan's registered interest in lot 1102 into the trustee's name and the trustee then execute a transfer in favour of Neil Campbell. In either case, the trustee must provide to Neil Campbell an executed withdrawal of Caveat AJ785807 together with the relevant certificate of title. 193 The Court also would be minded to make orders that: (1) Grant liberty to apply for such further or other orders as may be required to give effect to the transfer of Mrs Rowan's registered interest in lot 1102 into the name of Neil Campbell. (2) The applicants will be solely liable for any stamp duty or other fee incident upon the execution and registration of the transfer of Mrs Rowan's registered 98/100 share of lot 1102 into Neil Campbell's name. (3) The application and the cross-claim otherwise be dismissed. 194 Costs will be reserved and the parties will be invited to provide submissions in relation to appropriate costs orders. I certify that the preceding one hundred and ninety-four (194) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

SCHEDULE OF PARTIES NSD 1743 of 2016 Cross-Respondents Second Cross-Respondent NEIL COLIN CAMPBELL AS REPRESENTATIVE OF THE DECEASED ESTATE OF COLIN MALCOLM CAMPBELL Third Cross-Respondent CHERYL ANNE CAMPBELL

Limitations Act 1969(NSW)

Conveyancing Act 1919(NSW)ss 23C, 54A

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