Constructive trust on the ground of common intention
120 A constructive trust will not necessarily arise merely because one partner to a marriage or de facto relationship has made express or implied undertakings to the other to provide support and accommodation: Green v Green (1989) 17 NSWLR 343 at 353 or even to give them an interest in the property: Miller v Sutherland (1990) 14 Fam LR 416 at 423.
121 However, where a party seeks to impose a constructive trust based on actual intention, it is necessary for it to establish two matters. First, there must be a common intention between the parties that both should have a beneficial interest. Second, the claimant must have acted to his or her detriment on the basis of that common intention: Grant v Edwards [1986] Ch 638 at 651; Miller v Sutherland at 423.
122 The question of whether the necessary common intention existed between the parties may be demonstrated in various ways based on the conduct of the parties and can be implied by the Court: Miller v Sutherland at 423. Grant v Edwards was applied by Gleeson CJ in Green v Green (at 355) who discussed this notion of common intention and noted:
"…proof of such common intention can be direct, as for example, by evidence of express agreement or the making of admissions, or such common intention can be inferred from the making of contributions to the cost of a property, or meeting expenses in maintaining it. That, however, is merely one of the ways, but not the only way, in which the evidentiary basis for inferring a common intention can be laid…such conduct may also be of considerable factual importance in establishing an acting to detriment, but once again, in that respect its status is evidentiary and is not a matter of legal necessity."
123 The line of authorities which have imposed a constructive trust in reliance on this reasoning have primarily involved situations where the common intention was expressed at the time of, or shortly following acquisition of the property. However, Nourse LJ in Grant v Edwards (at 651) did add:
"I use the expression "on acquisition" for simplicity. In fact, the event happening between the parties which, if followed by the relevant type of conduct on the part of the claimant, can lead to the creation of an interest in the claimant, may itself occur after acquisition. The beneficial interests may change in the course of the relationship."
124 As to the question of whether the claimant has acted upon this conduct to his or her detriment, the conduct must be referable to the promise or intention and this will ultimately depend upon the nature of the conduct and of the promise or intention: Grant v Edwards at 652. Nourse LJ in Grant (at 648) held that it must be conduct on which the claimant could not reasonably be expected to embark unless he or she was to have an interest in the house.
125 Evidence of a promise to marry is arguably not capable of giving rise to any inference that the parties intended to pool their financial and non-financial resources for the purposes of their joint relationship: Stowe v Stowe (1995) 19 Fam LR 409 at 414. Repudiation of an executory contract of marriage will not, of itself, be treated as unconscionable conduct for the purposes of the imposition of a constructive trust: Public Trustee v Kukula (1990) 14 Fam LR 97 at 101.
126 As I accept the evidence given by Mr Pike to be generally reliable and as I reject the plaintiff's evidence that the discussion in relation to the returning of title of the Berkeley Vale house took place in relation to any discussion where the plaintiff had suggested that the defendant would not be eligible for the dole, and as I accept as reliable the defendant's evidence set out in paragraphs 63 - 68 of his main affidavit, it becomes clear that no case for a constructive trust is made good.
127 On the facts proven the defendant's continued contention that after the relationship failed the Hollisdale property remains his sole property to the exclusion of any interest at all on the part of the plaintiff, does not amount to unconscionable conduct such as to attract the intervention of equity and the imposition of a constructive trust in favour of the plaintiff of any part of the property. Having regard to the manner in which both parties conducted their relationship and the financial and non-financial contributions that each have made in the course of that relationship it is not shown that it is unconscionable for the defendant to retain the sole beneficial ownership of the property which was acquired prior to the commencement of what, in the result was, all things being considered, a very short term relationship. I am neither persuaded that there was a common intention between the parties that both should have a beneficial interest in the Hollisdale property nor that the plaintiff acted to her detriment (to an extent as could conceivably justify the imposition of a constructive trust over part of the property) on the basis of any such common intention to any real extent. For the same reasons the claim to a charge for the benefit of the plaintiff over that property must fail.
128 Even had I accepted the plaintiff's evidence that the discussion in relation to the returning of title of the Berkeley Vale house had taken place in relation to a discussion where the plaintiff had suggested that the defendant would not be eligible for the dole, I would not have found that a constructive trust was appropriate or that the defendant's conduct was relevantly unconscionable conduct so as to attract the doctrine of equity and the imposition of a constructive trust in favour of the plaintiff of any part of the property. And this for the reason that, on my findings, the plaintiff at no material time had the anticipation or expectation that she had a serious or substantive interest in the Berkeley Vale property. Hence the consideration for the transfer is not shown to be inadequate and/or to constitute detriment of the type remotely qualifying for constructive trust relief of the nature sought.
129 Nor do the facts establish that the plaintiff has an interest in the property on the basis of a proprietary estoppel. In relation this claim it is appropriate to revisit the underlying principles.