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Judgment

1. THE COURT: The applicant seeks leave to appeal from orders made by a judge of the Equity Division on 30 June 2020 dismissing the applicant's statement of claim with costs and ordering consequential relief (Mouin Junior Dalati v Shereen Rifat Brown [2020] NSWSC 783, Kunc J).
2. The applicant had claimed a beneficial interest in two properties purchased in the respondent's name in February and October 2016.
3. Leave to appeal is required because the amount at issue is less than $100,000 (Supreme Court Act 1970 (NSW) s 101(2)(r)).
4. At the time the respondent acquired the two properties in question, the parties were in a de facto relationship that commenced on or about 22 December 2015. The relationship broke down by about May 2017.
5. The respondent contracted to purchase a unit in Punchbowl in February 2016 as an investment property. The purchase was completed on 4 April 2016 (J [25]-[27]). In around October 2016 she contracted to purchase a Green Valley property, settlement of which occurred on 22 November 2016 (J [29]-[31]). The applicant contended that he had a beneficial interest in both properties by reason of financial and non-financial contributions he made to the acquisition and maintenance of the properties. His claim was based on a resulting or constructive trust. As to the latter, he contended that it was the common intention of the parties that he would have a beneficial interest in the properties and, or in the alternative, that his contributions were made as part of a joint endeavour whereby the parties were pursuing their joint financial objectives in purchasing the properties.
6. The primary judge concluded that the financial and non-financial contributions made by the applicant were gratuitous. The applicant intended the payments to be gifts to the respondent made in furtherance of his stated desire to demonstrate his ability to provide for her. His Honour found there was no agreement, arrangement, understanding or promise between the parties, either express or imputed by common intention, that they would hold the properties together (J [5]).
7. Before the primary judge the parties were agreed that the issues in the case were entirely issues of fact. The law as to constructive and resulting trusts was not in issue.
8. In his written summary of argument the applicant submits that the resolution of the dispute in the court below came down to the characterisation of three payments made by the applicant to the respondent about which there was no dispute. The applicant made a cash deposit into the respondent's bank account of $12,500 prior to the settlement of the Punchbowl property. He also gave the respondent $21,000 for the purchase of a hair salon of which only $8,000 was returned. The remainder was applied towards the purchase of the Green Valley property. He also deposited $16,000 into the respondent's bank account on 8 November 2016 prior to the settlement of the Green Valley purchase. Those funds were also applied towards the purchase of the Green Valley property. The respondent conceded that without the money that the applicant had given her, she would not have been able to purchase the two properties (J [64]).
9. The primary judge found that the deposits made by the applicant to the respondent's bank account were gifts. This was how the applicant himself described the payments (or intended so to describe the payments) when making the deposits (J [33] and [80]). The primary judge did not accept the applicant's evidence as to why he described the deposits as gifts. This finding depended upon an assessment of the parties' credibility. The primary judge preferred the evidence of the respondent to the applicant and made adverse findings as to the applicant's credit (J [62]-[65]).
10. The applicant submitted before the primary judge that if the court were to find that one or more of the payments was a gift, that would not necessarily be fatal to his claim to enforce a constructive trust (written submissions below paras 8, 47(b), 60 and 62). He submitted: "60. The plaintiff says that a constructive trust also arises in the circumstances. Where one or both of the parties to a failed de facto relationship own property, it is established that constructive trusts affecting such property may arise by reason of the common intention of the parties or on the basis that it would be unconscionable, in the circumstances of a failed joint endeavor [sic], for a party to insist on their strict legal rights. ... 61. For a constructive trust to be found on that basis, the plaintiff would need [to] show that there was a joint endeavor [sic] by the parties (which may be a personal relationship), that the plaintiff made contributions to the properties for the purpose of that joint endeavor [sic], that the joint endeavor [sic] failed and that the legal ownership of relevant properties is disproportionate to the contributions, such as to render it unconscionable for the defendant holding legal title to all of the properties to insist on her legal rights. It is submitted that [the] plaintiff can establish these matters here. He says that there was a joint endeavor [sic] to purchase an investment property and a home for the parties. He says that he made contributions to the properties. It would therefore be unconscionable for the defendant to insist on her 100% legal interest in the properties. 62. Even if the Court finds that one or more of the payments made by [the] plaintiff were 'gifts', those gifts would not have been given unless the parties were in a personal relationship and engaged in a joint endeavor [sic]. Those gifts allowed the defendant to pool enough funds to purchase both properties. It is therefore unconscionable for the defendant to insist on her 100% legal interest in the property."
11. The applicant submitted that a constructive trust arose by reason of the common intention of the parties, or on the basis that it would be unconscionable, in the circumstances of a failed joint endeavour, for a party to insist on her strict legal rights.
12. In the draft notice of appeal, which the applicant seeks leave to file, he contends that the primary judge erred in failing to have regard to that submission. In his summary of argument, the applicant submitted that by reason of the alleged failure, he was not afforded natural justice.
13. The primary judge said: "121 Mr Moutasallem submitted that even if the Court characterised the 'big ticket' items as a gift, it was not fatal to MJ's claim for a constructive trust. I do not accept that submission. The finding that a payment is a gift will rebut the presumption of a resulting trust. However, to establish a constructive trust over a gift it is necessary to demonstrate that the gift was the product of unconscionable conduct or undue influence on the part of the donee over the donor: see, for example, McCulloch v Fern [2001] NSWSC 406 at [50], [63], [67]-[69]. Such claims were no part of MJ's case against Shereen. 122 Having regard to all of the evidence, and having observed the parties closely in the witness box, I am unable to reach a state of actual satisfaction on the balance of probabilities that MJ and Shereen ever had a common intention or engaged in a common endeavour in relation to the Properties, or anything else, of a sufficiently substantial or enduring nature as would engage equitable relief. I am satisfied that MJ gave Shereen money not pursuant to some common intention or endeavour but in an attempt to endear himself to her or to create some sense of indebtedness or dependence on her part by demonstrating his determination and ability to provide for her. His vision was very much that the man in a heterosexual relationship should be, and be seen to be, the breadwinner or provider."
14. Contrary to the applicant's submission, the primary judge did deal with his submission. His Honour rejected the applicant's contention that the acquisition of the properties was part of a joint endeavour by the parties and rejected the applicant's contention that the payments made by him to the respondent were contributions made by him to the properties for the purpose of the asserted joint endeavour.
15. The proposed appeal raises no issue of general importance or matter of principle. It turns upon the primary judge's findings of fact. In large measure, those findings were based upon the primary judge's assessment of the credibility of the parties. The applicant's prospects of success, if leave were granted, are not more than arguable.
16. The requirement for leave, where the amount in issue or the value of the right claimed is less than $100,000, reflects the public policy in finality of litigation over small claims where the costs incurred are likely to be disproportionate to the amount in issue (Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32], [39]). Leave to appeal should be refused.
17. The order of the court is that the summons seeking leave to appeal is dismissed with costs.