Dinsdale bht Protective Commissioner v Arthur

Albion Insurance Company Limited v GIO (NSW) (1969) 121 CLR 342 Baumgartner v Baumgartner (1987) 164 CLR 137 Brown v Brown (1993) 31 NSWLR 582 Calverley v Green (1984) 155 CLR 242 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Currie v Hamilton (1984) 1 NSWLR 687 Dickson v Reidy [2004] NSWSC 1200 (Nicholas J) Doolan v Shepherd [2005] NSWSC 42 (White J) CASES CITED : Farrugia v Official Receiver in Bankruptcy (1982) 43 ALR 700 Forgeard v Shanahan (1994) 35 NSWLR 206 Gee v Liddell [1913] 2 Ch D 62 Ingram v Ingram [1941] VLR 95 Martin v Martin (1959) 110 CLR 297 Napier v Public Trustee (Western Australia) (1980) 32 ALR 153 Parsons v McBain (2002) 192 ALR 772 Ryan v Dries [2002] NSWCA 3 Shepherd v Cartwright [1955] AC 431 West v Mead [2003] NSWSC 161 (Campbell J)

PARTIES : Anthony George Dinsdale by his tutor the Protective Commissioner (plaintiff) Dale Warren Arthur (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2248/05 Anthony George Dinsdale bht the Protective Commissioner v Dale Warren Arthur JUDGMENT 1 HIS HONOUR: The Plaintiff Anthony Dinsdale and the defendant Dale Arthur are the registered proprietors as tenants-in-common in equal shares of the land comprised in folio identifier A/397226 at 190 Alexandra Street, Albury, which Mr Dinsdale occupies as his home. Mr Dinsdale is a chronic alcoholic, and has suffered extensive brain damage and cognitive deficits as a result of long-term ethanol abuse; as a result he has been unable to adequately care for himself, or manage his personal or financial affairs, and the Protective Commissioner manages his estate pursuant to an order of the Guardianship Tribunal. Mr Dinsdale, by his tutor the Protective Commissioner, claims that he is entitled to a beneficial interest in Mr Arthur's legal share of the Albury property, pursuant to a combination of (1) a resulting trust arising from unequal contributions to then purchase moneys, (2) a constructive trust based on a Baumgartner equity, (3) equitable contribution in respect of mortgage repayments made by Mr Dinsdale in excess of his share, and (4) an equity of exoneration in respect of borrowings made for the exclusive benefit of Mr Arthur on a joint security.

2 Mr Arthur is the former defacto spouse of Mr Dinsdale's daughter. Mr Dinsdale and Mr Arthur purchased the Albury property on 22 December 1999 for a price of $94,000; additional costs associated with the purchase (legal costs and stamp duty) amounted to $4,166.60. The Albury property is now worth between $175,000 and $225,000, and is subject to a joint mortgage registered number 6519660 by Mr Dinsdale and Mr Arthur as mortgagors to Hume Building Society Ltd as mortgagee. The mortgage secures the liability of Messrs Dinsdale and Arthur under a loan agreement dated 9 November 1999 between them as borrowers and Hume as lender, by which Hume agreed to lend them up to $45,350 on Loan Account 392350L11, on the security of the Mortgage. The current balance of the loan account is $39,193.62.

3 Before 1 December 1999, Mr Dinsdale was the tenant, from the State Rail Authority, of 445 Parkinson Street Albury ("the SRA Land"), pursuant to a yearly tenancy at a rental of $100. In 1998, the Roads and Traffic Authority ("RTA") proposed to acquire the SRA Land; as part of this transaction it acquired Mr Dinsdale's leasehold interest for a price of $75,000, of which $9,400 was paid by the RTA to Stein Nicholls Real Estate, the selling agents in respect of the Albury Property, and the remaining $65,600 to Mrs F Prodanovic, the vendor of the Albury property. Thus, of the total funds required to complete the purchase of the Albury property ($98,166.60), $75,000 was derived from the sale of Mr Dinsdale's leasehold interest in the SRA Land to the RTA. The remaining $23,166.60 was drawn down from the loan account with Hume, on the security of the mortgage, and was disbursed, as to $19,413.60 to the vendor Mrs Prodanovic; as to $2,209, to the Office of State Revenue; and as to $1,544, to Richard Leyland, the solicitor who acted on the purchase. 4 During the period from 22 December 1999 until 16 November 2000, Mr Arthur made further drawdowns on the Loan Account by Cashback Debit, totalling $22,000, exclusively for his own benefit. During the period from 22 December 1999 to 19 January 2001, Mr Arthur made periodical repayments of $246 per month to the Loan Account. He made a further payment on 21 May 2001, but he has made no repayments since then. The repayments that he has made total $3,432. There is no evidence that they came other than from his own separate resources. 5 The Protective Commissioner was appointed to manage Mr Dinsdale's estate pursuant to a financial management order made by the Guardianship Tribunal on 29 October 2001. Mr Arthur had ceased to make any mortgage payments after 21 May 2001, and Mr Dinsdale has made all the mortgage payments since that date. During that period to date, Mr Dinsdale has made repayments on the Loan Account totalling $18,221.65. The periodical monthly payments have increased over that period from $285 to $320.

6 The Summons was filed on 4 April 2005. It was served personally on Mr Arthur on 15 November 2005, together with a letter informing him that the matter was returnable on 22 November 2005. On 21 November 2005, Mr Arthur spoke on the telephone to Mr Zucker, the solicitor with the conduct of the matter for the Protective Commissioner, and indicated that he wanted to resolve the matter without lawyers. He also provided a current address, at Lavington. On 12 December 2005, Mr Zucker sent Mr Arthur a letter at that address, which informed him that the matter had been adjourned to 20 February 2006, and proposed a resolution. There was no response. On 15 March 2006, Mr Arthur was served personally with a letter dated 22 February 21006, which advised him that the matter had been adjourned to 20 March 2006, on which date the plaintiff would be asking the court to proceed to hear the matter either on that or on a subsequent date, in his absence. On 1 June 2006, Mr Zucker sent Mr Arthur a registered letter, which informed him that the case was listed for hearing on 21 June 2006, and that if he did not appear, the plaintiff would apply to have the matter proceed in his absence. On 19 June 2006, a copy of the principal affidavit in support, the various affidavits of service, and a letter advising that the plaintiff would seek an order that the defendant transfer his interest in the land to the plaintiff on an undefended basis on 21 June, was left at premises then apparently occupied by Mr Arthur in Albury. 7 On 21 June 2006, when the matter was listed for hearing before White J, there was no appearance for Mr Arthur. The plaintiff wished to amend the relief claimed, and his Honour granted leave to amend the summons and stood the matter over to the one-day list on 28 July 2006. The Amended Summons was filed on 27 June 2006, returnable on 28 July 2006, and was served personally on Mr Arthur, together with a copy of the plaintiff's Outline of Submissions, the principal supporting affidavit of Mr Zucker, and a covering letter, on 3 July 2006. On 28 July 2006, the matter was fixed for hearing on 3 August 2006, and on the same day, a letter informing Mr Arthur that it was listed for hearing in the Court at Sydney at 0930 on 3 August 2006 was personally served on Mr Arthur. 8 At the hearing, as on every prior occasion, there was no appearance on behalf of Mr Arthur. I am satisfied that he has proper notice of the hearing, and that it is appropriate to proceed in his absence with the trial generally, under UCPR r 29.7. Resulting Trust 9 Mr McInerney, who appears for Mr Dinsdale, submits that there is a resulting trust arising from contributions to the purchase price pursuant to which the Albury property is held for Mr Dinsdale as to a share in the ratio of 75,000:98,166.60, consistent with his contribution of $75,000 to the purchase price. Subject to his Baumgartner submission, addressed below, in respect of the residual beneficial interest of 23,166.60:98,166.60 ("the residual portion"), he submits that half the residual portion is also held upon constructive trust for Mr Dinsdale. 10 The prima facie position that the beneficial ownership of real property is commensurate with the legal title [Currie v Hamilton (1984) 1 NSWLR 687, 690 (McLelland J)], is displaced by the presumption of a resulting trust arising from payment of the purchase price, unless that presumption is in turn rebutted by a presumption of advancement, or by evidence [Martin v Martin (1959) 110 CLR 297; Calverley v Green (1984) 155 CLR 242]. Where parties contribute unequally to the purchase price of property, they are presumed to hold it beneficially pro-rata to their contributions to the purchase price [Martin v Martin (1959) 110 CLR 297; Calverley v Green (1984) 155 CLR 242, 246, 258-259]. As Deane J said in Calverley v Green (at 266-267): Where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it. 11 For these purposes, the "purchase price" includes costs, fees and disbursements incidental to the acquisition of the property [Ryan v Dries [2002] NSWCA 3, [52]-[53]]. If the purchase price is funded in whole or in part by moneys raised on mortgage, the mortgage moneys are treated as a contribution by the person who is liable to repay them; where purchasers jointly borrow funds on mortgage loan, they are to be regarded as contributing the part of the purchase price so raised equally [Calverley v Green (1984) 155 CLR 242, 251 (Gibbs CJ), 257-258 (Mason and Brennan JJ), 267-268 (Deane J)]. Although the presumption of a resulting trust may be rebutted by evidence [Napier v Public Trustee (Western Australia) (1980) 32 ALR 153, 158 (Aickin J, with whom Gibbs CJ, Mason, Murphy and Wilson JJ agreed)], it is a presumption which is not displaced by slight circumstances [Shepherd v Cartwright [1955] AC 431, 445; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, 365; Brown v Brown (1993) 31 NSWLR 582, 596]. 12 Accordingly, the purchase price is to be treated as $98,166.60. Mr Dinsdale is to be regarded as having contributed $75,000 from the proceeds of his interest in the SRA Land, and half of the mortgage moneys of $23,166.60. Mr Arthur is to be regarded as having contributed the other half of the mortgage moneys. There is no evidence that would rebut the presumption of a resulting trust, nor any circumstances that would support a presumption of advancement. Accordingly, the Albury property is held upon resulting trust for the parties in proportions 86,583.30 for Mr Dinsdale and 11,583.30 for Mr Arthur, which I shall round to 88:12.

13 However, Mr McInerney submits that by reason of the parties' disparate contributions to the mortgage repayments, the beneficial entitlements to the residual portion are not equal (as on resulting trust arising from the joint contribution of the mortgage moneys), but are the subject of a constructive trust of the type described in Baumgartner v Baumgartner (1987) 164 CLR 137 [see also West v Mead [2003] NSWSC 161 (Campbell J); Doolan v Shepherd [2005] NSWSC 42 (White J)], pursuant to which the residual portion is held on constructive trust for the parties in proportions 18,221.65 (for Mr Dinsdale) to 3,432 (for Mr Arthur), according to their respective contributions to date to mortgage repayments.

14 In my opinion, this submission is misconceived. First, the extent of the beneficial interest of the parties, arising by reason of a resulting trust, is determined at the time when the property was purchased and the trust created, and disparate contributions to mortgage repayments do not usually affect those beneficial interests [Calverley v Green (1984) 155 CLR 242, 252 (Gibbs CJ), 262 (Mason and Brennan JJ)]. The appropriate remedy in such a case is contribution or an accounting between the mortgagors [Calverley v Green, 252-3 (Gibbs CJ), 262-3 (Mason and Brennan JJ)]. Ryan v Dries illustrates such an accounting. Although contributions to a joint endeavour for the purpose of a Baumgartner constructive trust may include their respective contributions to mortgage repayments [Baumgartner v Baumgartner (1987) 164 CLR 137, 148-149; West v Mead [2003] NSWSC 161, [60]-[61]], whether such a trust is imposed does not depend upon proof of such contributions. In distinction to a resulting trust, a Baumgartner trust does not arise from contributions, disparate or otherwise, to the acquisition of property, but is imposed where it would be unconscionable for a party upon failure of a joint endeavour to retain the benefit of the other's contributions which were not made on the basis that they would be for the benefit of the other if the joint endeavour failed [Baumgartner v Baumgartner (1987) 164 CLR 137, 148]. Where the doctrines of resulting trust, accounting and contribution provide an adequate remedy, there is no unconscionability in insisting upon the position that they produce.

15 Secondly, the Baumgartner equity is one to "… [restore] to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them" [Baumgartner v Baumgartner (1987) 164 CLR 137, 148]. The requirements were explained by Campbell J in West v Mead [2003] NSWSC 161, [52]-[64], where his Honour said (at [59]): … a plaintiff needs to establish that there is indeed a joint endeavour between the parties, in which expenditure is shared for the common benefit. It is also necessary to identify what the scope of that joint endeavour is. It is a question of fact, for any couple, what the scope of the joint endeavour they are engaging in is. Further, for any couple, the scope of the joint endeavour they are engaged in might change from time to time. If, within the scope of a joint endeavour which lasts for years, an asset is acquired, as a result of contributions both parties have made, and for a purpose of the ongoing joint endeavour of the parties, this gives rise to a presumption that the beneficial interest ought to be shared equally. That presumption can be displaced if one party is able to show that the contributions, both financial and non-financial, to that asset should be regarded as unequal.

16 There is no evidence in this case of a joint endeavour between the parties, in which expenditure is shared for the common benefit, or even of a pooling of resources [cf Baumgartner v Baumgartner (1987) 164 CLR 137, 147-8; Parianos v Melluish (2003) 30 Fam LR 524, [35]-[36], [55]-[58]]. There is no reason to suppose that each was no pursuing their own separate interest, albeit through investing in one property which each could use for his own advantage. There is no evidence of anything that would ordinarily suggest contemplation of a long-term relationship beyond that of co-ownership; Mr Arthur was Mr Dinsdale's daughter's defacto husband. Moreover, I am unable to accept the submission that the acquisition of the residual portion (as distinct from the whole) of the Albury property, by the loan account on security of the mortgage, under which each assumed a joint and several liability to Hume to make good the loan, was the scope of any relevant joint endeavour: if there was a joint endeavour at all, it was in respect of the acquisition of the whole of the property and not limited to the residual portion. 17 Accordingly, I reject the submission that the residual portion is the subject of a Baumgartner constructive trust.

Equitable Contribution 18 Mr Dinsdale claims equitable contribution from Mr Arthur to the extent that Mr Dinsdale's contributions to the mortgage repayments exceed his proper share of the liability to make those payments. 19 As between themselves, persons who are under co-ordinate obligations, such as joint debtors or co-sureties, share the burden pro rata, with the consequence that one who pays more than his or her share is entitled to recover the excess by way of contribution from the other [Albion Insurance Company Limited v GIO (NSW) (1969) 121 CLR 342, 350 (Kitto J)]. In particular, where one of several co-owners pays more than his or her share of the mortgage repayments or rates, that co-owner is entitled to recover the excess from the others [Ingram v Ingram [1941] VLR 95, 102; Forgeard v Shanahan (1994) 35 NSWLR 206, 224F-225C (Meagher JA, Mahoney JA agreeing); Ryan v Dries, [56]-[57], [70]]. 20 Mr Arthur's 12% interest in the property is based upon a contribution by him of half of the mortgage advance, which carries with it a commensurate liability to contribute one half of the mortgage repayments. Mr Dinsdale has, to date, made mortgage repayments amounting to $18,221.65, whereas Mr Arthur has made repayments amounting to only $3,432. Assuming that as between themselves they were each liable for one half of the mortgage repayments, Mr Dinsdale would be entitled to contribution for the amount which he has paid or pays in the future in excess of one-half. Equity of Exoneration

21 However, Mr McInerney next contends that by reason of Mr Arthur having drawn-down $22,000 on the security of the Albury Property exclusively for his own benefit, Mr Dinsdale is entitled, by way of an equity of exoneration, to a charge over Mr Arthur's interest in the property for that amount. 22 The equity of exoneration is an incident of the relationship between surety and principal debtor, and operates as a charge upon the estate of the principal debtor by way of indemnity for the purpose of enforcing against that estate the right which the surety has, as between the surety and the principal debtor, to have the principal debtor's estate resorted to first for the payment of the debt [Gee v Liddell [1913] 2 Ch D 62, 72; Parsons v McBain (2002) 192 ALR 772, 779 [20]]. In Farrugia v Official Receiver in Bankruptcy (1982) 43 ALR 700, Deane J (at 702) explained that the doctrine operated where joint property is charged partially for the benefit of one mortgagor alone and partly for the benefit of both. His Honour said: Where the property of a married woman is mortgaged or charged in order to raise money for the benefit of her husband, it is presumed, in the absence of evidence showing an intention to the contrary, that, as between her husband and herself, she meant to charge her property merely as a surety. In such a case, she is, as between her husband and herself, in the position of surety and entitled both to be indemnified by the husband and to throw the debt primarily on his estate to the exoneration of her own (see, generally, 22 Halsbury's Laws of England (4th ed) paras 1071-6; Fisher & Lightwood's Law of Mortgage (8th ed) p445; Huntington v Huntington (1702) 2 Bro Parl Cas 1; 1 ER 753 Peirs v Peirs (1750) 1 Ves Sen 521; 27 ER 1180; Pocock v Lee (1707) Vern 604; 23 ER 995; Hall v Hall [1911] 1 Ch 487. The present case is not, however, the simple one where the whole of the moneys borrowed jointly by husband and wife on the security of their joint property have been applied for the benefit of the husband. As has been mentioned, $12,500 of the amount borrowed was applied for the joint benefit of Mr and Mrs Farrugia upon the discharge of the previous mortgage under which they were jointly liable. It was only the balance of $10,500 that was applied for the benefit of Mr Farrugia alone. A question which arises is whether the one borrowing can, for the purposes of the application of the relevant equitable principles, be in effect subdivided into what was borrowed and applied for the joint benefit of Mr and Mrs Farrugia and what was borrowed and applied for the benefit of Mr Farrugia alone. In my view it can. It seems to me that where the joint property is charged partially for the benefit of the husband alone and partly for the benefit of both husband and wife and it is possible to apportion the principal between the two, there is room for the application of the equitable doctrine of exoneration and the wife is, in the absence of agreement to the contrary, entitled to exoneration to the extent of what was borrowed and applied for the benefit of the husband alone (see, 22 Halsbury's Laws of England (4th ed) para 1073; Gee v Smart (1857) 8 EI & BI 313 at 319; 120 ER 116 at 119.

23 It is sufficient to attract the operation of the doctrine that funds are raised and applied for the separate use of one of the co-obligors (the defendant) without benefit to the other (the plaintiff), and the equity is not confined to situations in which the liability is incurred to discharge a debt or obligation personal to the defendant [Dickson v Reidy [2004] NSWSC 1200, [33] (Nicholas J)]. 24 Mr Arthur authorised cash back debits totalling $22,000 to be drawn down on the Loan Account, which were credited to his personal account. He thereby increased the joint liability of Dinsdale and himself to Hume under the mortgage by that amount. As a result, of the total amount borrowed on the security of the mortgage, $22,000 was for the sole benefit of Mr Arthur and not for the joint benefit of the mortgagors, whereas the initial $23,166 was for their joint benefit, being applied to fund the purchase of the property. 25 Accordingly, as between the parties, Mr Dinsdale is entitled to have Mr Arthur's estate resorted to first for the mortgage repayments to the extent that they are in respect of the $22,000 applied for the use of Mr Arthur without benefit to Mr Dinsdale, and to a charge by way of indemnity insofar as any is recovered out of his own share. The liability for the balance of the mortgage repayments is borne equally. Mr Dinsdale is therefore liable for 23/90, and Mr Arthur for 67/90, of the mortgage repayments, and Mr Dinsdale is entitled to contribution for the amount by which his repayments have exceeded and in the future may exceed his proper share of the liability, secured by a charge on Mr Arthur's interest in the property. For practical purposes, rounding these proportions, so as to hold Mr Arthur responsible for three-quarters and Mr Dinsdale for one-quarter of the mortgage liability, will do justice. 26 In making the mortgage repayments as he has, Mr Dinsdale has discharged a liability for which Mr Arthur was responsible as to three-fourths, and is entitled to contribution for the amount that he has paid, or may in the future pay, in excess of one-fourth. At present, the total repayments amount to $21,653.65; one-fourth is $5,413.41; and Mr Dinsdale has paid $18,221.65, which exceeds one-fourth by $12,808.24, for which amount he is entitled to contribution from Mr Arthur. Occupation Fee 27 However, a co-owner who claims an allowance in respect of mortgage payments made by him and invokes equitable principle in support of that claim - as Mr Dinsdale does here, at least by invoking an equity of exoneration - must do equity by making allowance for his exclusive or greater use of the property, if that be the case [Ryan v Dries, [69]-[75]]. 28 Before me it was conceded on behalf of Mr Dinsdale that he had always occupied the property to the exclusion of Mr Arthur. While Mr Arthur has had use of the property as security for his borrowing of $22,000, he is to account for that, so that it may fairly be said that Mr Dinsdale has effectively had exclusive use and occupation of the property. 29 While the evidence is slight, there is some evidence that a three-bedroom house in Albury had a rental value of $160 per week in 1999. The property the subject of these proceedings is a two-bedroom home with a sunroom made of fibro and wood, with a tin roof. It was purchased in 1999 for $94,000 and has appreciated to a current value of between $175,000 and $225,000. In the absence of better evidence, and where Mr Arthur has offered no evidence and advanced no cross-claim for an occupation fee, the best I can do is that the rental value of the subject property, with two rather than three bedroom, would have been in the order of $120 per week in 1999, and consistent with the appreciation in its capital value would now have approximately doubled to $250 per week; this corresponds to a return of about 6.5%. I therefore allow $185 per week as average notional rent for the period from 1999 to date, as the amount for which Mr Dinsdale should account to the owners, of which Mr Arthur's share is 12%, or $22.20 per week. For the period of 6 years and 33 weeks from 22 December 1999 to 10 August 2006, that amounts to $7,659, which sum must be allowed in favour of Mr Arthur. Conclusion

30 The Albury property is held upon resulting trust for the parties for Mr Dinsdale and Mr Arthur, in proportions 88:12. Mr Dinsdale is liable for three-quarters and Mr Arthur for one-quarter of the mortgage repayments. 31 Mr Dinsdale is entitled to contribution for the amount by which his repayments exceed his one-quarter share, secured by a charge on Mr Arthur's interest in the property. At present that amount is $12,808.24. 32 However, Mr Dinsdale must do equity by allowing for his exclusive use of the property, on which account $7,659 must be allowed in favour of Mr Arthur.

33 Subject to any submissions as to their form, my orders are: 1. Declare that the plaintiff and the defendant hold the land comprised in folio identifier A/397226 situate at and known as 190 Alexandra Street, Albury upon trust for themselves as tenants-in-common in proportions 88:12 respectively.

Declare that as between the plaintiff and the defendant, they are liable under mortgage registered number 6519660 by them as mortgagors to Hume Building Society Ltd as mortgagee in proportions 25:75 respectively.

Declare that subject to and conditional upon the plaintiff allowing the defendant an occupation fee equivalent to 12% of the market rental value of the property, the defendant is liable to pay to the plaintiff by way of contribution the amount by which the plaintiff's mortgage repayments exceed his 25% share, and that the amount of such liability net of the occupation fee is charged upon the defendant's interest in the property.

Declare that at this date: 4.1 the amount by which the plaintiff's mortgage repayments exceed his 25% share is $12,808.24;

4.2 the amount of an occupation fee equivalent to 12% of the market rental value of the property is $7,659;

Order that the defendant pay the plaintiff's costs.

Reserve further consideration and liberty to apply.

29/11/2006 - Order made on 28.11.06 pursuant to UCPR r 36.17 omitting from order 2 above "75:25" and substituting "25:75". - Paragraph(s) Paragraph 33, order 2.

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