1. Soon after the purchase - whether it was before or after settlement was not made clear in the evidence - the parties changed their plans for the land. Ms Robinson wanted to occupy the house herself. Mr Gates agreed to her doing so, and she did. Their evidence was that she agreed that she could pay rent to him once she began occupation, but they never agreed upon the amount of periodical rent or when or how it should be paid. In the event, Ms Robinson did not ever make any rental payments to Mr Gates.
2. Either before or shortly after Ms Robinson took occupation, Mr Gates paid $990.00 for polishing of the timber floor. Otherwise, all payments for improvements to the land or maintenance or repair of the house have been made by Ms Robinson.
3. Ms Robinson has remained in occupation to the present day. All payments of Council rates, water rates and insurance have been made by her, not by Mr Gates.
4. Until 2008 both parties contributed to mortgage loan repayments. Since 2009 Ms Robinson alone made the payments. The parties have agreed that Mr Gates' total payments under the mortgage have been $21,385.00 and Ms Robinson's have been $165,959.15.
5. In May 2008 the parties fell out. Ms Robinson asked Mr Gates to agree to sell his interest in the land to her and he said that he would. Matters, however, did not get to the stage of Ms Robinson ever making an offer. As a consequence of the falling-out, Ms Robinson registered an instrument of transfer which severed the joint tenancy so that the parties instead became registered as tenants in common in equal shares.

1. There is no dispute about the financial contributions that Mr Gates has made in relation to the land. Those contributions are:

1. In addition, Mr Gates claims to be entitled to compensation from Ms Robinson for her occupation of the land. The parties have agreed upon what was the total market rent payable from the date of the commencement of the occupation in 2004 until the hearing date. The total is $173,900.00, calculated on the basis of a valuer's assessment. The amount which Mr Gates claims is $92,253.95, which is 53.05% of the total.
2. The financial contributions that Ms Robinson claims to have made in relation to the land are:

1. The first four of those contributions - the acquisition costs, the mortgage payments, the Council rates and the water rates - are not in dispute. The others are in dispute, either wholly or partly.

The Competing Claims for Adjustment of Interests

1. Mr Gates has sought an order that adjusts the parties' interests in the land so that they are no longer equal but he holds a 53.05% share and Ms Robinson holds a 46.95% share, and that there be compensation by one to the other after some of the above contributions have been taken into account. Mr Felkel of Counsel for Mr Gates submitted the following table in explanation of the adjustment sought; in the table, Mr Gates is described as "John" and Ms Robinson as "Lyndel".

Balance of purchase price of $152,800 (based on an equal legal interest and paid through Home Loan)

Mr Felkel submitted that because of the unequal contributions to the purchase price and other acquisition costs there was a presumption of a resulting trust so that the parties held their respective beneficial interests in the land in the proportions which equated to the proportions of their respective contributions.[1] He correctly submitted that a calculation made on that basis must regard the parties' equal liability under the mortgage as being an equality of contribution by them for the mortgage debt and that payments of instalments in reduction of the mortgage debt are not to be regarded as direct contributions to the purchase price.[2] He also correctly submitted that for the purposes of such a calculation one may include not only the contributions to the purchase money but also incidental costs such as stamp duty and disbursements.[3]

1. Ms Robinson also has sought an order that adjusts the parties' interests in the land, but so that Mr Gates holds a 27.93% share and she holds a 72.07% share. A calculation that results in such an adjustment takes into account all contributions, actual or nominal (i.e. rent payable by Ms Robinson), not just contributions to the purchase price. Mr Ternes of Counsel for Ms Robinson submitted another table in explanation of the adjustment sought; again, Mr Gates is described as "John" and Ms Robinson as "Lyndel."

In that calculation, Mr Ternes has included in Mr Gates' favour only "an amount for loss of rental income proportionate to his share of the mortgage repayments over the years", submitting that that was the fairest method of calculation.[4] Except for the way in which "loss of rent" has been treated, there is authority that the method of calculation set out in the table is a legally permissible approach to adjustments of interests in land by an order made under Part IV of the Act.[5]

1. For reasons that I give below, I have decided that no adjustments to the parties' interests are warranted and that they should remain equal. A fair and just division of the proceeds of sale of the land, however, in view of the contributions that the parties have made in relation to it, requires that Mr Gates make a compensation payment to Ms Robinson from the proceeds of sale before those proceeds are divided equally.

1. The parties are co-owners of the land within the meaning of Part IV of the Act. They agree that the land should be sold and that there should be a division of the proceeds of sale, in accordance with ss 228 and 229(1) of the Act. Those sections provide:

(1) In any proceeding under this Division, VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land or goods occurs.

(2) Without limiting VCAT's powers, it may order -

• (a) the sale of the land or goods and the division of the proceeds of sale among the co-owners; or
• (b) the physical division of the land or goods among the co-owners; or
• (c) that a combination of the matters specified in paragraphs (a) and (b) occurs.

229 Sale and division of proceeds to be preferred

(1) If VCAT determines that an order should be made for the sale and division of land which is, or goods which are, the subject of an application under this Division, VCAT must make an order under section 228(2)(a) unless VCAT considers that it would be more just and fair to make an order under section 228(2)(b) or (c).

1. The obligation of VCAT under those sections is to make an order that achieves a "just and fair" division of the proceeds of sale. I accept Mr Felkel's submission that, to achieve an order that is "just" as well as "fair", the Tribunal should have regard to and be informed of the general law as well as Part IV of the Act, and should not impose "some form of instinctive justice".[6] One must, however always keep in mind the provisions of Part IV themselves. The general law must yield to these provisions wherever they differ from the general law, as s 233(5) of the Act, which I am about to set out, makes clear.
2. So far as it is relevant to this proceeding and to the parties' competing contentions in it, s 233 of the Act provides:

(1) In any proceeding under this Division, VCAT may order -

(a) that compensation or reimbursement be paid or made by a coowner to another coowner or other coowners;

(c) that an adjustment be made to a coowner's interest in the land or goods to take account of amounts payable by coowners to each other during the period of the co-ownership.

(2) In determining whether to make an order under subsection (1), VCAT must take into account the following -

(a) any amount that a co-owner has reasonably spent in improving the land or goods;

(b) any costs reasonably incurred by a coowner in the maintenance or insurance of the land or goods;

(c) the payment by a co-owner of more than that co-owner's proportionate share of rates (in the case of land), mortgage repayments, purchase money, instalments or other outgoings in respect of that land or goods for which all the co-owners are liable;

(e) in the case of land, whether or not a coowner who has occupied the land should pay an amount equivalent to rent to a coowner who did not occupy the land;

(3) VCAT must not make an order requiring a coowner who has occupied the land to pay an amount equivalent to rent to a co-owner who did not occupy the land unless -

(a) the co-owner who has occupied the land is seeking compensation, reimbursement or an accounting for money expended by the coowner who has occupied the land in relation to the land; or

(b) the co-owner claiming an amount equivalent to rent has been excluded from occupation of the land; or

(c) the co-owner claiming an amount equivalent to rent has suffered a detriment because it was not practicable for that co-owner to occupy the land with the other co-owner.

(5) This section applies despite any law or rule to the contrary.

1. Having taken into account all the matters which s 233(2) requires it to take into account, VCAT, in discharging its obligation to achieve a "just and fair" division of the proceeds of sale of the land, may make an order:
   1. under s 233(1)(c), that an adjustment be made to a co-owner's interest in the land; or
   2. under s 233(1)(a), that compensation or reimbursement be paid by one co-owner to another; or
   3. so, that there is a combination of an adjustment of an interest and compensation or reimbursement.

1. When purchasers of land contribute equally to the purchase price and to other incidental acquisition costs, there is a presumption of a resulting trust so that the purchasers hold the land in trust for themselves as tenants in common in the proportions in which they contributed.[7] The presumption, however, may be rebutted by evidence that the intention of the parties was otherwise.[8]
2. Although the unequal contributions of Mr Gates and Ms Robinson, as set out in the table contained in paragraph 17 above, do give rise to the presumption of a resulting trust in the way contended for by Mr Felkel, I consider that the presumption has been rebutted by the evidence of both parties: Mr Gates' evidence that they agreed to buy the land jointly and "always intended that it be 50 - 50", and Ms Robinson's evidence that Mr Gates "paid more than the 50% he was supposed to pay" when they purchased the land. Each of those pieces of evidence was admissible against the party who gave it,[9] for each was contending that he or she was entitled to a greater than 50% interest in the land. The evidence was of a common intention, at the time of acquisition, that their interests in the land should be equal. It rebutted the presumption of a resulting trust.
3. So I do not accept the submission on behalf of Mr Gates that it is just and fair to make adjustments to the parties' interests in the land so that Mr Gates holds a 53.05% share and Ms Roberson holds a 46.95% share.

1. To support his submission on behalf of Ms Robinson that there should be adjustments to the interests so that she holds a 72.07% share and Mr Gates holds a 27.93% share, Mr Ternes argued that the facts give rise to a constructive trust whereby the parties hold the land in trust for themselves in those proportions.
2. A constructive trust is a remedial concept that meets the case when it would be unconscionable for one party to retain a benefit with respect to land that is not commensurate with that party's contribution to a joint acquisition and retention of the land.[10] It is a remedy which equity imposes regardless of actual or presumed agreement or intention.[11] So the evidence to which I referred above and which rebutted the presumption of a resulting trust would not prevent there being a constructive trust if it is unconscionable for Mr Gates to have the benefit of the half interest in the land which he holds at law by virtue of being a registered proprietor of the land together with Ms Robinson as tenants in common in equal shares.
3. The circumstances which give rise to a constructive trust appear to be these. First, there has been a relationship or joint endeavour which has broken down. Secondly, there has been a financial contribution by one or both parties to the relationship or to the joint endeavour. Thirdly, in those circumstances and in all the circumstances, it would be unconscionable for one party to the relationship or joint endeavour to retain a benefit not commensurate with that party's financial contribution.[12]
4. In cases where a constructive trust has been found to exist the relationship between the parties has usually been one of de-facto husband and wife, but the concept is not confined to such a relationship. In the present case, the relationship between the parties has broken down. Mr Ternes submitted that the case was also one in which the basis of a "joint endeavour" had been removed. I do not accept that submission. At first the parties had had in mind to pursue a "joint endeavour" of holding the land as an investment property and renting it out, but then very soon changed their minds. Ms Robinson decided to live in the house herself and Mr Gates agreed to her doing so. The joint endeavour did not break down. It did not begin. This is a case of change of minds, not of the removal of the basis for a joint endeavour.
5. As shown in paragraphs 13 and 15 above, the financial contributions by the parties while they have been owners of the land have been unequal. However, in my view, the circumstances in which Ms Robinson has made greater contributions than the Mr Gates has made do not involve any conduct by Mr Gates that would make it unconscionable for him to retain a half interest in the land. Ms Robinson can be compensated in another way for the contributions she has made.
6. Between 2004 and 2008 both parties made contributions towards repayment of the mortgage loan. To 2008, Ms Robinson paid $51,942.53 and Mr Gates paid $21,385.00.[13] Why, to that date, the contributions had been unequal was not explained in the evidence. After 2008 Ms Robinson alone made all payments in reduction of the mortgage loan. Mr Gates' evidence was that at the time when Ms Robinson was indicating to him that she wanted to buy him out she asked him to stop making any further payments under the mortgage. Ms Robinson did not contradict that evidence. I accept it. There was therefore nothing unconscionable about Mr Gates' omission to contribute mortgage loan repayments after 2008.
7. I shall be dealing in detail with the claims that Ms Robinson is making with respect to improvements to or maintenance of the house and land. For the moment, however, it is relevant to observe that, with one exception, all work that was done on the land and the house and all payments that she made for that work were done or made on Ms Robinson's initiative, without any request by Mr Gates for the doing of the work and without his having been consulted before it was done. The exception was a retaining wall which she wanted to replace; she consulted Mr Gates about that, and he did not approve of it. In particular, she spent $15,917.00 in 2008 on renovating the bathroom and laundry, on her own initiative and without consulting Mr Gates. This is not a criticism. I am merely explaining why it was not unconscionable that Mr Gates did not contribute to the cost. Likewise, Ms Robinson paid the rates and insurance premiums on her own initiative, without asking Mr Gates to contribute to them.
8. It is noteworthy that in one of the leading cases where the constructive trust remedy was expounded and put into operation[14] the High Court did not make an order that altered the parties' ownership interests. A man and a woman who had lived together for three years decided to buy a property, erected a house on it and renovated a cottage on it. The woman contributed $25,259.45 and the man contributed $2549.77 to the purchase and improvement of the property, which was conveyed to them as tenants in common in equal shares. The High Court declared that the parties held their respective legal interests upon trust to repay to each his or her respective contribution and as to the residue for them both in equal shares.
9. For those reasons I conclude that it is not unconscionable for Mr Gates to retain a half interest in the land, that it is not appropriate to apply the constructive trust remedy in this proceeding, and that it would not be just and fair to alter the interests of the parties in the land in the way contended for on Ms Robinson's behalf.

1. It is just and fair to make an order for compensation, under s 233(1)(a), to each party for what he or she has paid by way of mortgage repayments: $21,385.00 by Mr Gates, and $165,959.15 by Ms Robinson. These figures have been agreed.
2. Likewise, Ms Robinson should be compensated for the Council rates and water rates (excluding usage charges) which she has paid throughout. The figures of $15,840.86 for Council rates and $5290.39 for water rates have been agreed.
3. As for building insurance, Ms Robinson claimed to have contributed $9349.37. While in the Tribunal Book she meticulously documented the payment of Council rates and water rates, the Tribunal Book contained no documents about insurance and Ms Robinson did not give any oral evidence about a calculation of $9349.37. She did, however, tender and I received in evidence[15] insurance renewal notices and certificates for the years 2008, 2009, 2010, 2011 and 2016. These documents show that Ms Robinson had taken out and renewed for those years a combined insurance policy for the building at 9 Buckingham Crescent, for contents and for a motor vehicle, and that the total premiums paid for the building insurance component for those years totalled $3750.48. So she proved the payments of building insurance in that total sum and should be compensated accordingly.

1. In relation to Ms Robinson's claims that she had contributed payments towards installation of solar panels ($4866.93), house repairs and renovations ($39,324.31) and garden and other external works ($21,198.20), Mr Felkel submitted that I should not take any of them into account because Ms Robinson had not led any evidence that the subject matter of any of those payments had increased the value of the land and so had not proved that they had increased the value. In support of the submission he cited a passage from a judgement of the Supreme Court of Western Australia,[16] and set out the passage in his written submission. In reproducing it I include his underlining.

It is therefore necessary to examine the principles which apply to claims for an account or an allowance in respect of improvements, mortgage repayments, repairs and other like expenditure on property as between beneficial co-owners.

In an instance where the beneficial ownership of the property is shared between two people, either husband or wife, co-habitees or others, and one leaves, with the remaining co-owner continuing or taking over mortgage repayments and the responsibility for repairs and improvements, there can be an account taken in equity between those parties. For the paying party to recover an allowance for any appreciation in the value of the capital asset because of these outgoings it is necessary to prove that the expenditure has, in fact, produced an ascertainable increase in the capital value as, for example, in the case of renovation which has enhanced the market value of the house or, in relation to the repayments of mortgage whether repayments have affected an ascertainable reduction in the principle previously owing under the mortgage. In the absence of proof of an increase in capital value so caused, no recovery because of unrelated appreciation in value will be possible and the parties are left to hold the property, or share the proceeds of any sale, on the basis of their established beneficial interests, usually, but not always, arising from the extent of the contributions towards the cost of its acquisition

Often there will be a situation where one of the co-beneficial owners vacates the premises and leaves the other in occupation who, staying on, through choice of necessity continues to meet the mortgage repayments, rates, taxes and like expenditure but, in such cases, the person claiming a contribution or an account will be chargeable with occupation rent in respect of the period in which he or she continued to enjoy sole possession of the premises.

1. If the submission were correct it would follow that I should also not take into account the payment of $990.00 that Mr Gates made for floor polishing, because he too did not lead any evidence of a consequent increase in value.
2. Mr Felkel drew attention to a VCAT decision[17] in which the Senior Member, after setting out the above passage, accepted that it was the correct approach to take to a claim based upon expenditure on repairs and improvements and stated that a Supreme Court judge in Victoria had cited it with approval.[18] But the only part of the passage which the Victorian judge cited with approval was the final paragraph, beginning "Often there will be a situation ...", which dealt with the matter of an occupation rent. Moreover, that Victorian case turned on the law relating to partnership, not on upon Part IV of the Act. So there is no Victorian decision which binds me to accept the proposition that in a claim made under Part IV there can be no allowance for expenditure on repairs, maintenance or improvements unless the subject matter of the expenditure has been proved to have increased the value of the land.
3. The Property Law Act 1969 (Western Australia) contains provisions[19] which, as in Part IV of the Victorian Act, enable the making of an order for sale of co-owned land, the discharge of any encumbrance affecting the land directed to be sold and the division of the residue between the parties interested. But there is no provision in the Western Australian Act like s 233 of the Victorian Act, which specifies the matters which VCAT must take into account when making an order for compensation or for adjustment of an interest, and which in sub-section (5) states that the section applies "despite any law or rule to the contrary." The specified matters which VCAT must take into account include "any amount that a co-owner has reasonably spent in improving the land" and "any costs reasonably incurred by a co-owner in the maintenance ... of the land." There is no qualification in the section that the amount spent on the costs incurred must have been proved to have increased the value of the land.
4. So, while a court in Western Australia must apply the general law, contained in the passage I set out in paragraph 39 above, when deciding whether to make an allowance for the cost of renovations, etc. in the division of the proceeds of sale of co-owned land, and by applying the general law must require the party seeking the allowance to prove that there has been an increase in the value of the land because of the renovations, etc., a VCAT member must instead take into account of the matters set out in s 233 of the Act, unqualified as they are by any such requirement, for s 233 applies despite any law or rule to the contrary.
5. I therefore reject the submission that I should not take into account monies which Ms Robinson claims to have spent upon the house and the land because there was no evidence that there had been a consequent increase in value.

1. Ms Robinson gave evidence that she had had solar panels installed on the house at 9 Buckingham Crescent in May 2015, in the hope that by doing so she would reduce her electricity bills. She claimed to have paid $4866.93 for the solar panels. The Tribunal Book did not include any contract for the installation of the panels or any record of claimed payments. In the end, Mr Felkel conceded the figure claimed but not any entitlement of Ms Robinson to the benefit of it.
2. In view of the well-known contemporary concerns in the community about climate change, renewable energy and electricity prices, I consider that many (but not all) prospective purchasers of the property would regard the presence of solar panels as a desirable feature which adds to the property's marketability and so is an improvement to the property. In the reckoning of whether one party shall pay to the other as compensation before the proceeds of sale are divided, I should and do allow that amount of $4866.93 to Ms Robinson.

1. Ms Robinson has claimed $39,324.31 for "house repairs and renovations". The Tribunal Book included annual lists of her alleged payments for these, and include copies of invoices and receipts which documented many, but not all, of the items for which she was claiming.
2. I do not allow those items which represent the cost of purchase of (for example) paint, paint brushes and rollers, and sealer, apparently purchased for the purpose of Ms Robinson's do-it-yourself painting and performance of other minor maintenance items. I do not allow the claimed cost of locks and keys and similar items which appear to be for Ms Robinson's personal security and benefit rather than improvement to the property.
3. I do allow the items which one could reasonably regard as having been improvements to the property, whether by way of additional fixtures and fittings or by way of upgrading existing fixtures and fittings. By far the most significant in terms of amount was $15,917.00 which Ms Robinson paid in mid-2008 for renovation of the existing bathroom and laundry. It and the others which I allow are satisfactorily documented in the Tribunal Book. I set them out, as follows, to the nearest dollar, the column "TB" referring to the relevant page in the Tribunal Book. The items carrying an asterisk are those which Mr Felkel conceded (subject to his overall objection, referred to in paragraph 39 above, which I have rejected).

1. There were other items which I might have allowed if there had been documentary evidence of them, but there was none.

1. I also do not allow items of a kind that are notoriously susceptible to depreciation in value and to fair wear and tear:

1. In the result, I allow Ms Robinson $26,439.00 for improvements, maintenance and repair. I allow Mr Gates $990.00 for the polishing of floorboards.[20]

1. Ms Robinson has claimed $21,198.20 paid by her for making changes to the garden at 9 Buckingham Crescent, maintaining the garden and improving or otherwise altering the exterior. Again, the Tribunal Book documented many of her payments by including copies of relevant invoices or receipts.
2. For the more substantial items of expenditure I make a distinction between those which can reasonably be regarded as improvements to the land and those which can just as readily be regarded as having been for Ms Robinson's personal amenity and enjoyment. She purchased two water tanks and spent money having them installed. Whatever might be a prospective purchaser's plans and intentions about a garden, I think that the prospective purchaser would welcome the tanks as a good drought-proofing measure and would consider that they improved the land. Similarly money spent on replacing fences - by way of a half share of the cost, the other half share being met by the relevant neighbour, except for one fence the whole cost of which Ms Robinson bore because (so she said and I accept) the neighbour was hostile and she needed to replace the fence for her own protection - I regard as having been spent on improvements to the land. By contrast, money spent on landscaping and paving may have produced a result that was pleasing to her but might not be to everyone's taste and which prospective purchaser might not necessarily want to retain. I also put into the category of money spent for Ms Robinson's personal amenity the cost of tree removal; her evidence was that the tree had been healthy but she had wanted to plant a vegetable garden in its place.
3. I allow the cost of what I consider to have been improvements to land. Again I set those out, to the nearest dollar, and with the column "TB" and the asterisks having the same significance as for the table under paragraph 49. The notation "R1" refers to the document received as exhibit R1, separately from the Tribunal Book.

1. I do not allow those items which I consider to have been for Ms Robinson's personal amenity, not for improvements, or the item for the "sleeper wall" to which, as I understood the evidence, Mr Gates had refused to agree when Ms Robinson consulted him about it.

1. I do not allow the numerous items claimed for things purchased for maintenance of the garden: plants, mulch, fertiliser, potting mix, and so forth. Those were for maintenance of something for Ms Robinson's personal amenity and enjoyment.
2. In the result, I allow Ms Robinson $7756.00 for improvements to the exterior.

1. Ms Robinson having agreed to pay rent to Mr Gates at the time when she began to occupy the land alone with his consent, there is no need for any other legal justification for allowing to Mr Gates one half of the market rent payable during the period of her occupation until the date of the hearing. The parties have agreed that the market rent for that period was $173,900.00. One half of that is $86,950.00. Had Ms Robinson not agreed to pay rent, the justification for allowing an occupation rent in favour of Mr Gates in that amount would have been s 233(2)(e) of the Act, in the circumstances that Ms Robinson has sought compensation for money within the terms of s 233(3)(a).

1. The amounts I have allowed it to Mr Gates and Ms Robinson respectively for money expended in relation to land are:

1. To equalise the amounts expended there should be an allowance to Ms Robinson of half of $195,235.66, which is $97,617.83.
2. Offset against that equalising allowance is the amount of $86,950.00 payable by Ms Robinson to Mr Gates for occupation rent. The result is that the balance payable by Mr Gates to Ms Robinson is $10,667.83, calculated as follows:

1. The orders I make for the sale of the land and division of the proceeds of sale are largely in the form which Mr Felkel proposed, Mr Ternes accepted and s 232 of the Act authorises, except that I order that before there is a division of the net proceeds of sale between the parties equally there must be a payment to Ms Robinson of $10,667.83.

[1] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at pp 246-247.

[2] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at p 257.

[3] Murtagh v Murtagh [2013] NSWSC 926; Halsbury's Laws of Australia, volume 27, para [430-545], footnote 12.

[4] Respondent's written submissions, paras 14-16.

[5] Tien v Pho [2014] VSC 391 at [12] and [13].

[6] Sherwood v Sherwood [2013] VCAT 1746 at [27]- [34], following Edelsten v Burkinshaw [2011] VSC 362 at [27].

[7] See footnote 1. Mr Felkel correctly submitted that there was no countervailing presumption of advancement, because the relationship of two cousins does not give rise to a presumption that one is intending to advance the other.

[8] Halsbury's Laws of Australia, volume 27, para [430-550].

[9] Ibid, especially footnote 5 to para [430-550].

[10] Halsbury's Laws of Australia, volume 27, para [430-620].

[11] Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at p 148, approving Deane J. in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at p 614.

[12] See footnote 10 and the authorities cited in footnote 11.

[13] TB p 342. The figures were agreed.

[14] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583.

[16] Silvester v Sands [2004] WASC 266 at [139]- [141] (Heenan J.)

[17] Sherwood v Sherwood [2013] VCAT 1746 at [87]- [89].

[18] Rosselli v Rosselli [2007] VSC 14 at [156] (J. Forrest J.)