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[2010] WASC 409
Supreme Court of WA
2010-12-23
Dr P, Simmonds J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : GRUNDY -v- CASSAR [2010] WASC 409
Equitable interests - Whether parties held equitable interests in land as tenants in common in equal shares - Relevance of parties' agreement to acquire land with partnership funds for partnership purposes - Whether land acquired as partnership property - Whether partnership dissolved by agreement and land taken in specie as ultimate residue
Equitable interests - Rights and obligations between tenants in common in equity - Relevance of agreements to proceed on the basis of equal sharing of benefits and burdens of coownership - Whether and to what extent tenant in common in equity in possession of the land can claim allowance for expenses in respect of the land
Equitable interests - Right to apply of tenant in common in equity in land to apply for order for sale of land - Whether sale of land should be ordered - Whether order should be made to allow for the other tenant in common to acquire the land
Equitable interests - Joint undertaking to acquire land for purposes of partnership - Position where partnership dissolved and parties thereafter dealt with land jointly
Partnership Act 1895 (WA), s 7, s 8, s 31, s 50, s 57
Property Law Act 1969 (WA), s 34, s 126
Statute of Frauds 1677 (Imp), s 4
Baumgartner v Baumgartner (1985) 2 NSWLR 406; (1985) 10 Fam LR 319
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Calverly v Green [1984] HCA 81; (1984) 155 CLR 242
Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352
French v Styring [1857] EngR 509; (1857) 2 CBNS 357; 140 ER 455
Millar v Guthrie (Unreported, WASCA, Library No 970552B, 28 October 1997)
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
Noack v Noack [1959] VicRp 22; [1959] VR 137
Ryan v Dries [2002] NSWCA 3; [2003] ANZ Conv R 47
Silvester v Sands [2004] WASC 266
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; [1988] ANZ Conv R 98; (1988) 164 CLR 387
Willis v The State of Western Australia [No 3] [2010] WASCA 56
1 This is an action in which the plaintiff claims an interest in land of which the first defendant is the registered proprietor and which was used in the business of a partnership between the plaintiff and the first defendant. The first defendant accepts that the plaintiff has an interest in the land, but takes the position that that interest is not as the plaintiff claims.
2 The second defendant did not participate in the trial nor did he lodge any pleadings.
3 As will be seen, the factual matters in the action are complex. However, much - although by no means all - of that matter is common ground between the parties. Their principal differences lie in the legal significance of the factual matters.
4 I begin this judgment by setting out the background to the issues in this case by reference for the most part to those matters that are common cause between the parties. However, I include in that part of this judgment my principal findings on contested evidence. I then describe the issues as framed by the pleadings before describing the trial. I then deal with the issues on which I have concluded that the contest between the parties should be resolved.
5 The final section of this judgment is my conclusions and proposed orders.
Background: up to the commencement of the transport business
6 Over the period from about 1986 to about 1993 the plaintiff and the first defendant lived together in a property at Fewster Street in Muchea in this State (the Fewster Street property) in a de facto relationship. The plaintiff had acquired the property on 27 May 1985 and she met the first defendant in 1986. As will shortly appear the plaintiff and (save for some breaks) the first defendant continued to occupy that house after the end of the relationship, until the first defendant moved out, in 2002. The plaintiff was throughout the registered proprietor of the Fewster Street property.
7 It is not in dispute that at the time the first defendant began to live at the Fewster Street property it was subject to a mortgage to the Commonwealth Bank. The plaintiff had taken out that mortgage, with a principal sum of $24,000, when she acquired the Fewster Street property, with the balance of the purchase price, $9,000, coming from her savings. The plaintiff had made payments on the loan so secured up to the time the first defendant moved into the property. Up until early 1987 the plaintiff's uncontradicted evidence was that she had paid a total of $5,550 towards the mortgage loan on the Fewster Street property.
8 It was also not in dispute that the plaintiff had applied for and obtained a subsidy under the first home owner's scheme in the initial amount of $804.68 and a further $509.18 paid over 60 months by monthly instalments of varying amounts.
9 It is not in contest that from early 1987 the first defendant began to make payments by way of contribution to the payments on the loan, and later contributed to the cost of improvements to the Fewster Street property. The first defendant's contributions to the payments on the mortgage loan on the Fewster Street property were made by payments made by her monthly, from January 1987, with some breaks, up until September 1989. Over that period, on the uncontradicted evidence of the plaintiff, her contributions totalled $5,610 while the first defendant's contributions totalled $4,690. Thereafter, payments on the loan, on the uncontradicted evidence of the plaintiff, totalling $26,090.87, were from the income earned from a roadhouse business the plaintiff and the first defendant entered into, and, on the plaintiff's uncontradicted evidence, a joint savings account the two set up in December 1987 into which they had paid the wages they had earned from employment each had had until they were made redundant just prior to Christmas 1989. The plaintiff's uncontradicted evidence is also that there was a final payout amount for the Fewster Street mortgage loan, including fees and charges, of $2,162.87, to which both she and the first defendant contributed, although the proportions in which they did so is not in evidence before me.
10 There was evidence from the plaintiff that between March 1987 and October 1989 improvements and renovations were made to the Fewster Street property; the first defendant's contributions totalled $18,801.22, with the parties' contributions 'about equal'. There was evidence from the first defendant as to amounts she paid from 19 March 1987 to at least 5 March 2003 for improvements to the Fewster Street property, showing payments totalling $20,779.79 which it appears (the matter was not explored in evidence) was in addition to the amount of $18,801.22. There was evidence from the plaintiff that in or about October 1988 she contributed the sum of $11,914.30 to the parties' joint savings account, $10,000 of which she spent on improvements to the property. There was no other evidence to which my attention was directed or which I have been able to find as to the amounts the plaintiff paid in respect of improvements to the Fewster Street property, during the period March 1987 to March 2003. However, her uncontradicted evidence was that prior to early 1987 she had done 'quite comprehensive work to the property in that first two years' (cross-examination, ts 154).
11 Further, the plaintiff's uncontradicted evidence was that, after the initial period from her acquisition of the Fewster Street property to soon after the first defendant began to contribute towards the mortgage on that property, and although the plaintiff had not kept a record of her contributions to the total expenditures on payments towards the mortgage loan and improvements, as between her contributions and those of the first defendant 'they were very equal' (cross-examination, ts 154).
12 The only evidence I have as to outgoings, other than payments on the mortgage on the Fewster Street property and improvements to it until events in 2002, was from the plaintiff, that the first defendant had expressed a wish in early 1987 to contribute to 'maintenance' as well as improvements. I also have unchallenged evidence from the plaintiff that income from the parties' two businesses they conducted jointly, being the roadhouse business and the transport business (to both of which I return below), was used, after payment towards the mortgage loan, towards 'general living expenses'. There is also evidence that, in 2002, about the time the first defendant moved out of the Fewster Street property to live with her then partner in the dwelling house on another property where the transport business had been conducted, she and the plaintiff agreed the plaintiff would share the 'expenses' at that property, except that the first defendant would pay the 'outgoings' for that property while the plaintiff would pay the 'outgoings' for the Fewster Street property. Finally, as I will explain, when the Fewster Street property was sold in 2004, the proceeds were divided equally between the parties, subject to an agreed setting aside of $6,000.
13 On the body of evidence referred to in the preceding paragraphs, I find that the parties shared the cost of improvements and outgoings on the Fewster Street property from the time their de facto relationship commenced, beyond its breakup, to the time the first defendant moved out of the property in 2002; and they did so on a basis of equality. I will consider separately the matter of the basis on which the parties approached the expenses in relation to the Fewster Street property from the time the first defendant moved out of it until its sale.
Background: from the commencement of the transport business to the acquisition of the Depot Property
14 In early 1990 the plaintiff and the first defendant in partnership set up and conducted a business transporting goods (the transport business). The transport business was carried on initially under the business name 'Coo-ee Couriers', which was registered on 6 February 1990 under the Business Names Act 1962 (WA) (the BN Act). There was no written partnership agreement. Nor were any partnership financial statements in evidence before me.
15 The first defendant's evidence is that earlier, in or about September 1989, she had agreed orally with the plaintiff to lease in partnership, from Gull Petroleum, premises at the corner of Great Northern Highway and Brand Highway in this state (the Gull Petroleum premises). The Gull Petroleum premises were to be leased for a roadhouse business (the roadhouse business). On that evidence the parties conducted the roadhouse business from October 1989. Subsequently, in or about 1990, the parties agreed to establish the transport business, to 'complement' the roadhouse business. After the registration of the business name for the transport business, the parties conducted the transport business, with the first defendant providing assistance from the Fewster Street property.
16 On the plaintiff's evidence it was a 'few months' after the commencement, in January 1990, of the transport business that she was offered the opportunity to take over the lease of the Gull Petroleum premises, where she had been working at the time, so as to establish the roadhouse business. On her evidence the transport business was operated at the Fewster Street property until the parties began to operate the roadhouse business. From that point the transport business was operated from the Gull Petroleum premises.
17 Counsel for the first defendant acknowledged that there is no significance to the issues in this case to the difference in the order in which the two businesses were commenced, with this saving: counsel contended that the first defendant's evidence, on a point where the plaintiff had testified she had a clear recollection, was to be preferred, which indicated that I should be careful before accepting the plaintiff's account in other respects. I consider that the first defendant's evidence gains support from the only evidence apart from that of the parties that is directly on the point, that of a friend of theirs, Rhonda Kendall. Ms Kendall was at the time an officer of the Commonwealth Bank at which an account for the roadhouse business was opened. She testified that as far as she knew the roadhouse business was started first (23 March 2010, cross-examination, ts 188).
18 I accept that the evidence I have described gives me reason to be careful in accepting evidence from the plaintiff that is in contest as to events occurring as long ago as 1990. However, for reasons I will give as to other contests between the evidence of the plaintiff and of the first defendant, I consider that for the most part I should prefer the recollections of the plaintiff over those of the first defendant where they differ over more recent events.
19 I should note at this point that my preference for the recollections of the plaintiff, where I have indicated that preference, is without regard to matters that counsel for the plaintiff submitted went very much to the credit of the first defendant. Those matters were four. One was the failure of the first defendant to have her defence amended until the time of a previous trial in this action, when for some time previously she must have been aware that the denial in that defence that she had executed, in October 2004, a transfer of the property the subject matter of these proceedings was unwarranted. The second matter was that an earlier version of her witness statement (exhibit 11) had had an allegation in it as to an amount remaining due to her from the sale in 1996 of the business in which that property was used, which she admitted had no basis. The third matter was that there was, in former pleading of hers, an allegation that certain money of hers had been stolen by the plaintiff. This allegation had been removed from the pleading because, as she accepted, there was nothing in the allegation. The fourth matter was that she had not described in answer to cross-examination on an agreement she alleged the parties made in May 2004 that, as she had said in her witness statement representing her examination-in-chief, she had promised to transfer the property into the parties' joint names in consideration of the plaintiff continuing to pay her share of the payments on the mortgage on the property. I accept that the first, second and third - although not in my view the fourth, where it seems to me the first defendant's recollection failed her, and there is an undoubted conflict on the evidence of the parties that I need to address below - of these give rise to some concern with respect to the credibility of the first defendant. However, in my view, where these were matters arising out of dealings between the parties of some complexity, and where, as was common ground, the plaintiff had been responsible for keeping the relevant records, I am unable to draw from those first three matters the conclusion that I should doubt the first defendant's credibility as counsel for the plaintiff would have me doubt it. That is, I am unable to conclude the first defendant was someone who was prepared to tell untruths to support her case. Indeed on how she presented to me in the giving of her evidence I concluded she sought to tell the truth as she understood it to be. However, I also concluded, as I will indicate, that in some significant matters of detail in her evidence it could not be relied upon.
20 I note that it is common ground there was no written partnership agreement for the roadhouse business. I have no financial statements for that partnership. Nor do I have much evidence as to the parties' contributions to the establishment of the roadhouse business. The only evidence I have, from the plaintiff, was that the only initial contribution put into the business by either party was by the first defendant, who contributed $12,000 from the proceeds of the sale of a motorcycle of hers, to permit the acquisition of stock and to set up the business. It was not in contest that the parties were equal partners in the roadhouse business.
21 The only evidence I have of the initial contributions of the parties to the establishment of the transport business was a van the plaintiff purchased for $13,000 with the proceeds of a personal loan, and $500 from the parties as starting capital paid into the business account for the partnership. It was not in contest that the parties were equal partners in the transport business.
22 During or about the period from 1990 to 1992 the plaintiff and the first defendant conducted both the roadhouse business and the transport business. It is not in contest, as I have previously indicated, that some of the funds from the conduct of the roadhouse business and of the transport business were applied towards the instalments on the loan that was secured by the mortgage on the Fewster Street property; and some other such funds were applied towards the joint living expenses of the plaintiff and the first defendant.
23 In October 1991 the parties completed the instalments on the loan secured by the mortgage on the Fewster Street property, and that mortgage was discharged.
24 It is not in contest that in 1992 the roadhouse business partnership was dissolved by agreement and, by the re-amended defence and counterclaim, it is admitted that the proceeds of dissolution were applied to the transport business. However, in her examination in chief the first defendant stated that $30,000 of the proceeds had been applied by the plaintiff to purposes not disclosed or otherwise known by her, and no objection was taken to that evidence. The plaintiff in her examination-in-chief denied that any part of the proceeds had been so applied. The matter was not further explored in the parties' evidence. I note that the first defendant makes no claim in respect of that $30,000. I consider I do not have sufficient reason from the first defendant's evidence to conclude that the proceeds of the sale of the roadhouse business were applied otherwise than as the parties' pleadings indicate.
25 It is not in contest that, from about the time of the sale of the roadhouse business until the time of the acquisition of the property near the Gull Petroleum premises I reach below, the transport business was conducted from the Fewster Street property.
26 In 1993 the de facto relationship between the plaintiff and the first defendant ended. However, the relationship between them remained amicable, and the first defendant continued to live at the Fewster Street property.
27 The first defendant's evidence was that at the time of the termination of the relationship the parties agreed orally that in the event the plaintiff were to sell the Fewster Street property she would first offer it to the first defendant. The plaintiff's evidence was that she could not recall any such option having been agreed. However, it was common ground that there was no significance to be attached to any such option in the events that happened.
28 In any event, it was common ground that at the time of the termination of the de facto relationship between the parties the plaintiff assured the first defendant that, in the event of any sale of the Fewster Street property, the first defendant would receive one half of the proceeds.
29 I should also note that on the pleadings the parties had pooled their personal resources during their de facto relationship, and there is no pleading or evidence to indicate that that pooling survived that relationship's termination.
30 In June 1993 the business name 'Coo-ee Couriers & Transport' was registered under the BN Act showing the plaintiff as the person carrying on business under that name. The transport business was conducted under that name from that date, when it was also conducted under another name.
31 In January 1994 the business name 'Coo-ee Freightlines' was registered under the BN Act. It is not in contest that this was the name under which the first defendant conducted a business of her own, not in partnership with the plaintiff.
32 In July 1994 the business name 'Bullsbrook Hiab' was registered under the BN Act. It is common ground the parties conducted business under that name in partnership as part of or on the same terms as the transport business. For convenience I will describe the businesses conducted under those names collectively as the transport business.
33 In February 1995 changes in relation to the persons carrying on business under the name Coo-ee Couriers & Transport were registered: the changes were to add the first defendant to the plaintiff as such a person.
Background: from the acquisition of the Depot Property to the sale of the transport business
34 In March 1995 the first defendant acquired a commercial property located at 3599 Great Northern Highway in Muchea in this state (the Depot Property). The present action concerns the parties' interests in or in respect of the Depot Property.
35 The Depot Property is located on the south west corner of the intersection of the Brand and Great Northern Highways, near the Gull Petroleum premises. As will be seen the Depot Property is also referred to in some of the evidence and other material in the trial as the Depot or the Property. The first defendant has been the sole registered proprietor of the Depot Property since March 1995. At that time it appears it was described as Lot M1606 on Diagram 7048 being the whole of the land comprised in Certificate of Title Volume 913 Folio 103; the current title is Certificate of Title Volume 2030 Folio 784.
36 The Depot Property includes a dwelling house. For a part of 1995 the first defendant lived in that dwelling house with her new partner. However, with that exception, and another for a trip overseas in 2001 to which I will return, she continued to live in the Fewster Street property until about March 2002, when she went with her then partner to live in the dwelling house on the Depot Property.
37 There is a contest between the parties as to whether or not the first defendant acquired the Depot Property as her own property with (as I understood the first defendant's position) the provision of the use of it to the transport business partnership, or on behalf of that partnership as a partnership asset. I will return to that contest. However, it is not in contest that the Depot Property was acquired by the first defendant for it to be used for the transport business in place of the Fewster Street property. However, there is no written record of the understandings of the plaintiff and the first defendant as to the acquisition of the Depot Property.
38 The purchase price of the Depot Property was $157,000. In early February 1995 the Commonwealth Bank granted the first defendant a loan of $165,000. The loan was secured by a mortgage on the Depot Property with the first defendant as mortgagor, and by a mortgage on the Fewster Street property with the plaintiff as mortgagor. It is not in contest that the total, $161,442.45, of the purchase price of the Depot Property plus fees, stamp duty and other charges in respect of the settlement was paid, as to $141,990.45, from proceeds of the mortgage loan, and, as to the balance of $19,452, from funds from the transport business. The balance of the proceeds of the mortgage loan was paid into the transport business cheque account.
39 It is also common ground that the first defendant received a grant under the first home owners' scheme in the amount of $7,000 in respect of the acquisition of the Depot Property, which as I have indicated had a dwelling house on it. I note again that the first defendant and her then partner lived in the dwelling house on the Depot Property for a time in 1995. However, the length of that time is not in evidence before me, except that it was only a 'part' of 1995. It is not clear where the first defendant then lived, but on the whole of the evidence I would infer she returned to live at the Fewster Street property after that period had expired. The evidence is that during the time the transport business was conducted on the Depot Property the dwelling house was used for the administration of the transport business.
40 It is common ground that the payments on the loan that was secured by the mortgage on the Depot Property and the Fewster Street property, as well as payments for improvements and other expenses or outgoings on the Depot Property, were made throughout the conduct of the transport business from transport business funds. It was further common ground that this was pursuant to the agreement of the parties. There is evidence from the plaintiff, not in contest from the first defendant, that in or about February 1996 the plaintiff negotiated a new loan with the Commonwealth Bank, to replace the initial loan. It is also not in contest that the instalments on this new loan (the loan in respect of the Depot Property) were paid in the same way as the instalments on the initial loan; and the security, a mortgage on the Depot Property and a mortgage on the Fewster Street property, was the same, at least until the sale of the transport business.
Background: from the sale of the transport business to the first defendant's move out of the Fewster Street property
41 In 1996 the parties decided to sell the transport business. By an agreement dated 6 November 1996 the plaintiff and the first defendant sold the transport business to Richard and Dorothy Adshead (the Adsheads). Settlement was on 1 January 1997.
42 The net proceeds of settlement of the sale, comprising the purchase price of $150,000 plus adjustments of $1,316.89, plus a credit of customer accounts payable of $40,000, for a total of $191,316.89, were disbursed as follows, on the uncontradicted evidence of the plaintiff:
Term deposit in joint names of parties: at maturity the $60,752.57 was disbursed as to $30,878 to or for the benefit of the first defendant, and as to $29,873 to the plaintiff
43 It may be seen that a substantial portion of the proceeds of the sale of the transport business was applied towards reducing the amount owing on the loan in respect of the Depot Property, which was not sold but retained in the name of the first defendant. It is common ground that this loan continued to be secured by the mortgage on the Depot Property. However, there is no evidence or common ground as to whether the loan continued to be secured by a mortgage on the Fewster Street property, and the fate of that mortgage is not otherwise apparent to me. In any event, the parties made nothing of any discharge of the latter mortgage before me.
44 It will also be seen that, while the balance of the proceeds of the sale of the transport business was paid for the parties' joint benefit (the term deposit, the payments on the loan in respect of the Depot Property, the payment towards the transport business overdraft and the purchases of the caravan and the shared vehicle), there were other payments then or later to or for the benefit of the parties individually, being the initial payments to or for the benefit of the first defendant totalling $29,000, and the later final payments (from the term deposit) totalling $30,878 to the first defendant and (from the term deposit, the caravan and the shared vehicle) totalling $47,023 to the plaintiff, although she could not recall the final application of $7,650 of that amount. There was thus a disparity in favour of the first defendant resulting from those payments of $12,855. There was no explanation in the evidence for that disparity.
45 The plaintiff and the defendant also agreed at about that time that the rental payable under a five year lease of the Depot Property by the Adsheads would be used to pay the instalments on the loan in respect of the Depot Property.
46 On the uncontradicted evidence of the plaintiff, following settlement of the sale of the transport business, the first defendant continued to live at the Fewster Street property, and she resumed the operation of her business Coo-ee Freightlines. On that evidence over the period 1997 to 2001 the plaintiff assisted the first defendant in that re-establishment and operation in various ways.
47 In 2001 the plaintiff and the first defendant signed two transfer of land forms, in respect of the Fewster Street property and of the Depot Property respectively. The first defendant was about to travel to the United States to work and on the uncontradicted evidence of the plaintiff the purpose for these transfers was to permit the transfer of title to the properties into their joint names, in case it was necessary to effect such transfers while she was away. These forms were never lodged.
48 Some time later, in 2001, on her return from the United States, the first defendant resumed living in the Fewster Street property. She lived there with her partner, while the plaintiff also lived there with her partner.
49 By 18 March 2002 the lease of the Depot Property by the Adsheads, the purchasers of the transport business, came to an end. At or about that time the Adsheads sold the transport business. At or about that time the plaintiff and the first defendant agreed to an oral lease of a shed on the Depot Property together with access to it to the purchaser from the Adsheads. That lease on the plaintiff's unchallenged evidence was for a period of five months, from 19 March 2002 to 18 August 2002. The lease payments, which included an amount for power, were sufficient to pay and were used to pay the instalments on the loan in respect of the Depot Property over that period, with at least a portion of the balance remaining retained by the first defendant for her use. On the first defendant's evidence, denied by the plaintiff, that amount was 'nominal'.
50 After the Adsheads vacated the Depot Property the first defendant and her partner moved out of the Fewster Street property and into the dwelling house on the Depot Property.
Background: from the first defendant's move out of the Fewster Street property to the sale of that property
51 The plaintiff's evidence was that in February 2002, prior to the expiry of the lease of the Depot Property to the Adsheads, she and the first defendant agreed that the first defendant and her partner would live in the dwelling house on the Depot Property while the plaintiff would live in the Fewster Street property. While the first defendant's evidence-in-chief was that she was ejected from the Fewster Street property, this is a characterisation that, as her counsel acknowledged, is difficult to reconcile with the first defendant's further evidence that she 'agreed' to move out of the Fewster Street property to the Depot Property (24 March 2009, cross-examination, ts 289). I find that there was such an agreement made before the end of the Adshead's lease. At about the same time there were other matters agreed between the parties, as I will now indicate.
52 On the evidence of both the plaintiff and the first defendant, the first defendant and her partner took up residence in the dwelling house on the Depot Property after the Adsheads had vacated the Depot Property, their lease over which, on the plaintiff's unchallenged evidence, ended on 18 March 2002. On the plaintiff's unchallenged evidence the first defendant and her partner took up residence there that month.
53 It is not in contest that, by mid-2002, pursuant to an oral agreement between them, the plaintiff and the first defendant had contributed approximately one half each to the cost of certain improvements to the dwelling house on the Depot Property. The date of the oral agreement was, on the evidence of the plaintiff, before the first defendant vacated the Fewster Street property while on the evidence of the first defendant it was July 2002. The latter is difficult to square with the unchallenged evidence of the plaintiff that she made an initial payment of $1,500 towards improvements on the dwelling house in early April 2002; with the date on which I have found the first defendant and her partner moved into the dwelling house; with the first defendant's evidence that the improvements were 'initial improvements ... then required to make the Depot Property suitable as a house for me'; and with the first defendant's evidence in cross-examination that she and the plaintiff 'agreed to some renovations to be carried out to the house on the depot' (cross-examination, ts 289, emphasis added). On these bases I find that there was an oral agreement as appearing in the evidence of the plaintiff. There is also evidence I will shortly reach that the plaintiff and the first defendant agreed some time later that the plaintiff would pay one-half of the cost of renovating the kitchen in the dwelling house.
54 It was common ground that the plaintiff and the first defendant agreed by some time in 2002, after the first defendant and her partner had moved into the dwelling house on the Depot Property, that the plaintiff and the first defendant would share equally the burden of the payments on the loan in respect of the Depot Property and each would pay the 'outgoings' in respect of the property she lived in, the plaintiff in respect of the Fewster Street property and the first defendant in respect of the Depot Property. There was evidence from the plaintiff that she and the first defendant had agreed at about the time the first defendant and her partner moved into the dwelling house to share equally all of the 'expenses' of the Depot Property, including payments on the loan in respect of the Depot Property, except for 'outgoings' in the nature of 'rates and taxes', which the first defendant would bear, while the plaintiff would bear the 'outgoings' on the Fewster Street property. There was no challenge to this evidence, and it appears to be consistent with the evidence of the first defendant that at the time she moved into the dwelling house on the Depot Property the plaintiff agreed with her to pay one-half of the payments in respect of the loan in respect of the Depot Property, and one-half of the 'outgoings', which I consider to be a reference to the cost of the initial improvements I previously referred to. I consider the plaintiff's evidence also derives support from the way in which it accounts for the use of the proceeds of the lease to the purchaser from the Adsheads as well as for the parties' arrangements with respect to the initial improvements and for their respective living arrangements. There is also evidence from the plaintiff and from the first defendant that from the end of the lease to the purchaser from the Adsheads each paid one-half of the payments on the loan in respect of the Depot Property, while the evidence from the first defendant is that she paid 'all outgoings' on the Depot Property from March 2002. I have previously referred to the use of the proceeds of the lease to the purchaser to pay the instalments on the loan in respect of the Depot Property and to the payments by both parties in respect of certain improvements on the Depot Property.
55 There was no other evidence as to an agreement for the bearing of the cost of any improvements, to the Depot Property or to the Fewster Street Property after the first defendant and her then partner moved out of the latter. This is with the exception of uncontradicted evidence of the plaintiff that in 2002 there had been a discussion between the plaintiff and the first defendant as to improving the Fewster Street property, when the first defendant had not separately agreed to pay for any such improvements, and the plaintiff had gone ahead and carried out improvements over the period 2002 to 2004. I have no further evidence as to those improvements. However, the plaintiff's uncontradicted evidence is also that certain maintenance works were done to the Fewster Street Property for painting and tiling prior to it being sold, costing in total about $1,300, of which the first defendant paid one-half. There is also evidence from the first defendant of expenditures she made on the Depot Property with respect to improvements in respect of which the plaintiff had not separately agreed to make any contribution.
56 I find on the common ground referred to and the entirety of the evidence I have referred to in the preceding two paragraphs that the plaintiff and the first defendant had from about the time the first defendant and her partner moved into the dwelling house on the Depot Property an agreement to share equally the payments on the loan in respect of the Depot Property and to share equally agreed improvements to and other agreed expenditure on the dwelling house on the Depot Property and agreed improvements to and other agreed expenditure on the Fewster Street property, while the first defendant would pay other outgoings on the Depot Property and the plaintiff would pay other outgoings on the Fewster Street property.
57 It is common ground the plaintiff made payments of one-half of the instalment payments on the loan in respect of the Depot Property until August 2004, as I will indicate. However, there is evidence of a change in ultimate responsibility for the payments of those instalments before August 2004, as I will also indicate.
58 In September 2003 the first defendant began to conduct an earthmoving business under the name of Atom Ant Earthmoving, from the Depot Property.
59 In late 2003 or early 2004 on the plaintiff's uncontradicted evidence she acquired with her partner a new property in Bullsbrook, and following settlement the plaintiff moved out of the Fewster Street property.
60 In about March 2004, as described in the plaintiff's evidence, she had a conversation with the first defendant in which the plaintiff said that, if the first defendant was to continue to live in the Depot Property, it was 'only right' that she pay 'my half of the mortgage and outgoings'. At that time it is common ground that the instalment payments on the loan in respect of the Depot Property were $261 a fortnight or a total of $522 a month, paid in equal shares by the parties. At first blush it is not clear to what 'outgoings' the plaintiff was referring: I have already indicated my finding as to the agreement between the plaintiff and the first defendant for the latter to bear all of the outgoings on the Depot Property except for one-half of payments on the loan in respect of the Depot Property and agreed improvements to its dwelling house. However, in my view, the reference to 'outgoings' is in fact to that feature of their agreement, in view of the evidence I reach below as to why the plaintiff thought the arrangement she put to the first defendant 'only right.'
61 The plaintiff's evidence is that after this conversation she continued to pay one-half of the instalments on the loan secured by the mortgage on the Depot Property. However, the first defendant reimbursed her for her contributions. As I will indicate there is other evidence to indicate that no later than June 2004 the first defendant paid the plaintiff in respect of a number of her contributions.
62 The first defendant's evidence was that she did not recall any conversation about the mortgage on the Depot Property in March 2004, and that the plaintiff did not suggest to her then that because she was occupying the property it was appropriate she make the payments on the loan it secured. However, her evidence was that she did recall a conversation with the plaintiff, in August 2004, in which the latter indicated to her that the first defendant should pay all of the instalments on loan and that she should backdate the payments, by paying the five previous monthly contributions the plaintiff had made, which would represent a reimbursement for each of the plaintiff's monthly contributions for March 2004 to July 2004, of $261 each. I return to that evidence shortly. However, I note the first defendant's pleading that she refunded five previous monthly contributions, pursuant to the agreement with the plaintiff made in 2002 for each to pay one-half of the loan in respect of the Depot Property. This is a pleading unsupported by any other evidence before me, and I put it aside.
63 I consider that it is more likely than not there was such a conversation in or about March 2004 as that described in the evidence of the plaintiff, because of two other forms of evidence.
64 One form was evidence from a Cathy Lambert, who was a friend of both the plaintiff and the first defendant, as follows (23 March 2010, cross-examination, ts 198), which also explains why the plaintiff considered the arrangement she put to the first defendant was 'only right':
Do you know why Margaret stopped making payments in respect of the mortgage?---She asked my advice as to - now that she wasn't living - after she stopped living at Fewster Street and was living at Bullsbrook, she felt that it was time that she'd get some return on her investment in the depot, in her share in the depot. Prior to that it had all been okay because Charmagne was living in one of their houses, Marg was living in the other but when that stopped Marg felt like she needed some sort of a return, so that's when she asked my advice as to whether she thought it would be fair to ask Charmagne to pay the full amount of the mortgage, and I said I did think that that was fair.
Were you aware of what happened after that?---Charmagne did start paying the full mortgage and - yes, from Charmagne because Charmagne came and asked me my opinion about - she had trouble understanding why she should be paying the full mortgage and I tried to explain it to her.
Do you remember that being in about August, September of 2004?---It was somewhere around the sale of Fewster Street, somewhere around that time. That's the best I can do.
65 In her examination-in-chief (exhibit 9) there was further evidence as to the exchange between Ms Lambert and the first defendant, indicating that there were at least two different occasions on which the exchanges took place, as follows:
On at least two occasions whilst living at the Property Chamagne said to me words to the effect that she was paying the whole mortgage on the Property and she had trouble understanding why she should when she was part-owner.
Those conversations took place at my home in Bullsbrook.
I said to Charmagne words to the effect that as Margaret was a joint owner of the Property she was entitled to get the same benefits from the Property as was Charmagne.
I used as an example the market rent being $1000.00. I said words to the effect that a joint owner would be getting one half of that if the Property was rented out. It was fair therefore that she paid the whole mortgage and outgoings on the Property. I was aware that at that time the mortgage was about $500 a month.
Charmagne did not disagree with what I said and appeared to me that she was comfortable with the arrangements after my explanations to her. However she also said words to the effect that she did not think it was fair that Margaret now had a place of her own when Charmagne herself did not [13] - [17].
66 The first defendant in her evidence testified that she 'might have' had a conversation on one or more occasions with Ms Lambert about the mortgage payments on the Depot Property in 2004.
67 As to the times of these occasions, I will shortly indicate that the plaintiff agreed to sell the Fewster Street property in mid-April 2004 and settlement occurred in mid-June 2004. Counsel for the first defendant put to me that these conversations in fact occurred later, some time in August 2004, on the basis that it was about then the plaintiff stopped paying any amount in respect of the mortgage on the Depot Property. However, Ms Lambert's evidence was clear, it seems to me, as to when the conversations occurred, if not as to their precise month. Further, there is evidence that for a time before the plaintiff stopped those payments the first defendant reimbursed her for them.
68 That evidence is of payments made by the first defendant to the plaintiff, in equal amounts of $261, to reimburse the plaintiff for her contributions to the loan in respect of the Depot Property. The first defendant in her evidence admitted making such payments. She testified that the payments were pursuant to the plaintiff's demand in August 2004 and were made then to backdate the reimbursement of the plaintiff's five previous contributions, to March. However, there was evidence from the first defendant's banking records of the first defendant having paid the plaintiff $522 in June 2004, a payment the first defendant admitted represented two of the five payments. She could not explain those earlier payments.
69 It seems to me more likely than not, on the basis of this evidence, that after the plaintiff's conversation with Ms Lambert, and in around March 2004, the plaintiff and the first defendant made an agreed change in respect of the contributions to the payment of the instalments on the loan in respect of the Depot Property. Under that change, from about March 2004, the plaintiff would continue to contribute one-half, but the first defendant would reimburse her that amount. That arrangement, concluded at about the time of the sale of the Fewster Street property and after the plaintiff had vacated that property, reflected, on the plaintiff's evidence and that of Ms Lambert, the fact that the plaintiff assessed the mortgage at the time as 'modest in comparison with the potential rental income of the Property'.
Background: from the sale of the Fewster Street property up to about 8 April 2005
70 As I previously indicated, in mid-April 2004 the plaintiff agreed to sell the Fewster Street property and settlement occurred in mid-June 2004. There is a contest as to whether or not the plaintiff and the first defendant agreed that the Fewster Street property should be sold, and whether or not the agreement to sell was preceded by a conversation between them at the property in which the first defendant said to the plaintiff she wished to buy the plaintiff's half interest out. However, there is no contest that the net proceeds of sale were divided equally between the plaintiff and the first defendant, save for a sum of $6,000. Although the first defendant in her examination-in-chief gave evidence that the plaintiff's retention of that sum was made 'unilaterally', in cross-examination the first defendant acknowledged that the retention was as agreed between them, for the purposes of paying for the transfer of the Depot Property into their joint names.
71 It is common ground that, at about the time of the sale of the Fewster Property (on the plaintiff's evidence-in-chief) or May 2004, subsequent to that sale but before its settlement (on the first defendant's evidence-in-chief), the plaintiff and the first defendant agreed that the Depot Property would be transferred into their joint names. I find that it was for the purpose of this agreement that the parties agreed to set aside $6,000 from the proceeds of the sale as I have earlier indicated.
72 There is a sharp contest as to whether or not, as the first defendant contended on her evidence, she so agreed so as to make the plaintiff a joint registered proprietor of the Depot Property, and thereby (as I understood the contention) give the plaintiff a half interest in the Depot Property, in consideration of the plaintiff's continuing contributions to the payment of the instalments on the loan secured by the mortgage on the Depot Property.
73 On my findings thus far, and further evidence I will reach below, I have concluded that there was no agreement on such consideration. There was the agreement in March 2004 to which I have referred which resulted in the plaintiff being reimbursed for her continuing contributions to the mortgage on the Depot Property. There was no evidence of any change in that arrangement until August 2004, when it is common ground the plaintiff ceased to make any further such contributions. There is also a body of evidence I will reach below that after that change the first defendant assisted with steps toward that transfer. It seems to me that that body of evidence is inconsistent with the agreement for which the first defendant contends.
74 Therefore I find that there was an agreement between the plaintiff and the first defendant at or about the time of the settlement of the sale of the Fewster Street property that the parties would do such acts as were necessary to permit the transfer of the Depot Property into their joint names as registered proprietors. In consideration for that agreement, each of the parties agreed to apply a portion of the proceeds of the sale of the Fewster Street property to the costs of that transfer.
75 There is also a sharp contest over whether or not, as the first defendant contended on her evidence, she further agreed at or about May 2004 that the plaintiff could obtain a mortgage over the Depot Property to secure a loan of $47,500 to facilitate the repayment of bridging finance the plaintiff had obtained for the purchase of another property in Bullsbrook. This was to be a loan the plaintiff alone would service.
76 The plaintiff's evidence was that she had not sought any bridging finance from any institution. Her evidence was that a loan in that amount was applied for in early August 2004 in the names of both the plaintiff and the first defendant, to be so secured and to replace the loan in respect of the Depot Property, which was in the name of the first defendant only. On the plaintiff's evidence the new loan arrangement was to facilitate the transfer of the Depot Property into the joint names of the plaintiff and the first defendant. The plaintiff's evidence as to that purpose derives support from unchallenged evidence from the settlement agent, Marisa Petersen, who had been retained for the purposes of the transfer of the Depot Property into those joint names. Ms Petersen's evidence was that (examination-in-chief, witness statement, exhibit 7, [14], [15]) she initially wanted to
establish whether the Commonwealth Bank was going to prepare a discharge of mortgage and a new mortgage registered on the title in the names of Margaret and Charmagne. The mortgage documentation had to reflect the names on the title.
I provided a copy of the unsigned Transfer to the Commonwealth Bank to enable them to prepare their mortgage documents.
77 The plaintiff's evidence, supported as I have indicated, derives further support from the records of the account for the loan in respect of the Depot Property as at August 2004, showing a balance then due of approximately $47,000, and the cross-examination of the first defendant. In that cross-examination, she testified she had a 'clear recollection' of the May 2004 agreement. She was asked whether or not she was able to recall any other part of it than its provision for the payment of the plaintiff's contributions to the instalments on the loan secured by the mortgage on the Depot Property, and she testified she could not.
78 I consider on this evidence that there was no agreement in May 2004 or subsequently that the Depot Property would be mortgaged to secure a loan to the plaintiff such as the first defendant testified to. I further consider on this evidence that it is more likely than not that the loan applied for in early August 2004 was to replace the loan in the name of the first defendant only and to reflect the planned change on the title to the Depot Property, from the first defendant as registered proprietor to the first defendant and the plaintiff as joint registered proprietors.
79 In or about mid-May 2004 the plaintiff contacted a settlement agency, Exclusive Conveyancing, to have the Depot Property transferred into the joint names of herself and the first defendant, on the evidence of the plaintiff and the evidence of the contacted settlement agent at Exclusive Conveyancing, Ms Petersen. Ms Petersen was Maria Travaglini at the time. Ms Petersen opened a file for the matter on 13 May 2004. On the evidence of the first defendant both she and the plaintiff instructed Exclusive Conveyancing with respect to the proposed transfer of title to the Depot Property, but nothing turns on the difference in my view.
80 It appears to be common ground that a number of steps were then taken towards making that transfer.
81 Ms Petersen prepared and sent out under cover of a letter dated 2 June 2004 and addressed to the plaintiff an Appointment to Act form, a Transfer of Land document and a Stamp Duty Valuation form.
82 At about the same time she provided an unsigned copy of the Transfer of Land document to the Commonwealth Bank, which held the mortgage on the Depot Property, to enable it to prepare the documents to discharge that mortgage and to provide a replacement mortgage reflecting the change to the title proposed.
83 On the uncontradicted evidence of the plaintiff, by a document dated 7 June 2004 signed by the first defendant she stated that she gave the plaintiff full authorisation to act on the loan account that the mortgage secured 'as Margaret Grundy is part owner and Borrower on this account and has been since this account has been active'. The plaintiff then went to the Commonwealth Bank to request it to prepare papers to discharge the mortgage and establish a new loan account. I find it was as a result of this approach that the documentation proposing a mortgage loan in the joint names of the plaintiff and the first defendant to replace the existing mortgage loan in the name of the first defendant alone, to which I have previously referred, was prepared. I further find that this documentation was accepted by the mortgagee but lapsed by the effluxion of time when the transfer of the Depot Property did not complete, as I will explain.
84 Some time on or before 7 August 2004 Ms Petersen received back the Authority form, the Transfer document and the Stamp Duty form, all executed by the plaintiff and the first defendant: the first and third were dated 4 August 2004, while the second was undated. On the evidence of the plaintiff, which was not challenged, the Transfer document was executed at the same time as the forms, 4 August 2004. On 7 August Ms Petersen signed the Authority form. On 20 August 2004, having completed the Stamp Duty form, she lodged it at the Office of State Revenue.
85 So far as she could recall, some time in August 2004, and before the middle of that month, Ms Petersen received a call from the Commonwealth Bank about the Transfer document she had provided to it. In that call the bank required the amendment of the document to include a more detailed description in the 'Limitations' panel, and Ms Petersen prepared a further Transfer document with such a description which she provided to the bank around the middle of August.
86 In the meantime, on or about 9 August 2004, on the first defendant's evidence, the plaintiff came to her and indicated that the plaintiff would no longer contribute to the payment of instalments on the loan secured by the mortgage on the Depot Property, and she wished to be reimbursed for her five previous monthly contributions. I have previously referred to the matter of earlier payments by the first defendant to the plaintiff which call into question at least that last aspect of the conversation.
87 The first defendant's evidence is also that she did not at that time indicate to the plaintiff that she would not proceed with the transaction to transfer the title to the Depot Property into the parties' joint names, and indeed, as I will indicate, she subsequently executed a number of documents, including a further Transfer form, inconsistent with such a refusal.
88 On the plaintiff's evidence there was a conversation between the parties in or about August 2004 which included the following (23 March 2010, cross-examination, ts 173):
Yes, around that time my payment for August still came out of my account and she was reimbursing me for that, okay, back from her account, and it was after that time that I said to her, 'Look, this is probably a little bit silly. How about I stop sending it from my account to yours and you just pay it all out of your account; you pay my half of the mortgage out of your account in lieu of you having full occupancy of the property?' So with the third transfer we signed, that's how it was at that time.
The reference to a 'third transfer' was to a further Transfer document signed in October 2004 which I will reach shortly.
89 The contest on this matter is of great importance to the first defendant's case. On that case the conversation in or about August 2004 involved the plaintiff repudiating the parties' agreement of May 2004 that the plaintiff would continue to pay her contributions to the instalments on the loan in respect of the Depot Property in consideration for having a half-interest in it. The first defendant says that subsequently, in the circumstances I will describe, she accepted that repudiation, with the result that the plaintiff's equitable interest in the Depot Property is equal to that proportion of the value of the Depot Property at the time of that acceptance represented by the plaintiff's contributions to the Depot Property relative to the first defendant's.
90 I prefer the evidence of the plaintiff as to the conversation between her and the first defendant in August 2004. I do this because of my earlier finding that there was an arrangement between the parties as to the first defendant assuming responsibility for the payments on the mortgage on the Depot Property, out of which the arrangement which the plaintiff's version of the conversation described would have been a natural progression. Further, the action of the first defendant in subsequently, in October 2004, executing a transfer of the Depot Property into the joint names of the parties is very difficult to explain consistently with the version of the conversation the first defendant provides. In addition, as I will explain below, the first defendant sought to buy out the plaintiff's 'half interest' in the Depot Property, which is also difficult to explain on that version.
91 On 7 September 2004 Ms Petersen rang the Commonwealth Bank, and as a result understood that on 25 August 2004 it had processed the documentation such that the bank was ready to proceed to settlement. The plaintiff testified that she and the first defendant had on 23 August 2004 signed documents received from the bank including the mortgage prepared by the bank, and so far as she could recall she had then delivered the original signed documents to the bank. There is support for that evidence in a Commonwealth Bank form entitled 'Customer Detail Acknowledgement' dated 23 August 2004 signed by both the first defendant and the plaintiff. The new loan account was opened on 14 September 2004 in anticipation of the transaction to transfer the Depot Property into the parties' joint names being completed. In fact, as will be seen, the transaction did not complete.
92 In early October 2004 the plaintiff instructed Ms Petersen to include in the 'Consideration' panel of the Transfer document to be used in the transaction the figure of $250,000, for the purposes of assessment of stamp duty, which had not yet occurred.
93 At that point Ms Petersen prepared a further Transfer document, which so far as she could recall the plaintiff collected from Ms Petersen's office and which Ms Petersen received back, signed, from the plaintiff and the first defendant, by personal delivery made by 'someone', or by mail, about a week later. Ms Petersen added the date '13 October 2004' to the document, which she submitted to the Office of State Revenue for the assessment of stamp duty. It was not in contest that the first defendant had signed this further Transfer document after the alleged repudiation of August 2004.
94 On 1 November 2004 stamp duty on that Transfer document was assessed, and the assessed duty was paid on 10 December 2004. It may be noted on the uncontested evidence of Ms Petersen that by 24 November 2004 as a result of effluxion of time the Commonwealth Bank would have required fresh mortgage documentation for it to be prepared to go ahead with the transaction.
95 Not long after the payment of the assessed stamp duty, Ms Petersen received a telephone call from the plaintiff in which she asked Ms Petersen to put the transaction on hold. On the plaintiff's evidence this call was the result of a conversation she had had with the first defendant at this time. In that conversation the plaintiff had offered to sell her half interest in the Depot Property to the first defendant for a price of $120,000, with the first defendant to pay the plaintiff's one-half of the cost of certain kitchen renovations at the Depot Property. The plaintiff had earlier agreed to share that cost with the first defendant. I note in passing evidence of the first defendant in her cross-examination that there was a 'conversation' between the plaintiff and her with respect to a 'kitchen', although the matter was not explored further with her, and I am unable to ascribe any significance to that evidence of the first defendant in this context. I consider the plaintiff's (unchallenged) evidence is sufficient to establish that there was an agreement to share the cost of certain kitchen renovations, although there is no further detail as to that agreement.
96 On the plaintiff's evidence, it was understood the first defendant would have to raise the finance for the purpose of buying out the plaintiff's one-half interest on the terms indicated. There is in evidence a letter dated 13 December 2004 from the plaintiff to the Commonwealth Bank requesting it to maintain the loan secured by the mortgage on the Depot Property until 'further notice', indicating that a 'decision as to its continuance or change is expected to be made around the end of March 2005'.
97 On the first defendant's evidence, in March 2005, she attempted to raise finance to buy out the plaintiff's 'half interest' in the Depot Property at that time. On that evidence and that of Ms Kendall, who at the time was a mortgage broker, the first defendant spoke with Ms Kendall to secure her assistance in raising that finance, in the amount of one-half of what the Depot Property was then worth. On the evidence of those witnesses, and that of the plaintiff, I consider it more likely than not that the first defendant was acting pursuant to an arrangement with the plaintiff of the kind to which the plaintiff testified.
98 On 8 April 2005 Ms Kendall submitted an application for finance, which was refused or declined.
99 At about this time it is common ground that the plaintiff and the first defendant had a conversation, as a result of which it was apparent to the parties that the transaction to transfer the Depot Property into their joint names would not go forward.
100 On the plaintiff's evidence, the first defendant informed her that the attempt to secure finance to buy out the plaintiff's half interest had been unsuccessful. When the plaintiff said that the parties should revert to the transaction to transfer the title to the Depot Property into their joint names, and for that purpose the first defendant should sign fresh mortgage documentation to replace the earlier documentation which had become 'stale', the first defendant refused to sign, adding that she would not allow the plaintiff's name on to the title, adding there had to be 'conditions'. This was not further explored with the plaintiff in her evidence.
101 On the first defendant's evidence she did indeed indicate to the plaintiff at about that time that she refused to go ahead with the transaction to transfer the title to the Depot Property into the parties' joint names by signing the mortgage documentation. However, her evidence did not extend to any other part of the conversation or conversations with the plaintiff at that time, other than to indicate that the plaintiff had told her in a conversation, apparently at about the same time, that the plaintiff might move to sell the Depot Property, and further to indicate that the first defendant's refusal to sign the mortgage documentation and to go ahead with the transaction to transfer the title to the Depot Property into the parties' joint names was because she was concerned that once the plaintiff's name was on the title she might move to sell it.
102 On that evidence of the plaintiff and the first defendant, as well as her signature of the Customer Detail acknowledgement form of 23 August 2004 and the Transfer document dated 13 October 2004, I find that the conversation of about 8 April 2005 was the first time the first defendant had indicated to the plaintiff a refusal to go ahead with the transaction to transfer the title to the Depot Property into the parties' joint names. On the first defendant's case the first defendant thereby accepted the plaintiff's repudiation of the agreement of May 2004.
103 Since that time the first defendant has continued to pay all of the instalments on the loan in respect of the Depot Property as well as the cost of all improvements to and outgoings on the Depot Property.
105 Issue (1) is that of the extent of the plaintiff's equitable interest in the Depot Property. The first defendant does not contest that the plaintiff has such an interest, the difference between them going only to its extent.
106 The plaintiff says that she is entitled to a one-half equitable interest in the Depot Property on any one of the five following bases, for each of which I emphasise the commencement of the principal parts of the basis in question:
107 The first defendant on her re-amended defence and counterclaim admits that she 'holds the equitable interest of the plaintiff in [the Depot Property]' commensurate with the extent of the plaintiff's financial contributions to the Depot Property relative to the first defendant's contributions to the Depot Property, as the Depot Property 'as valued at 25 October 2005' at $250,000, on a constructive trust for the plaintiff. This admission was on the basis, which is not clear on that pleading but which emerged clearly in the written supplementary submissions for the first defendant by which her case at the trial was opened, that the first defendant had acquired the Depot Property for the benefit of the transport business partnership and to be held in trust for herself and for the plaintiff in equal shares, as it was their common intention, which was given effect to until August 2004, that their contributions to the acquisition and improvement of the Depot Property would be equal. However, the plaintiff had, in 'late August 2004', 'resiled' from or repudiated the agreement of May 2004 contended for by the first defendant, an agreement which reflected that common intention and as I understood the submissions replaced or supplanted all previous agreements between the parties. By the first defendant's acceptance of that repudiation, the agreement had been rescinded, with the effect that the plaintiff's interest in the property had to be measured as at the date of that acceptance without regard to any common intention as to equality of contributions, but rather by reference to the contributions the plaintiff had made to the Depot Property up to that date, relative to the contribution the first defendant had made up to that date. In effect, as I understood the submission, the plaintiff's interest, expressed as a sum of money was an equitable interest in that amount on the Depot Property. This would appear to be an assertion that the plaintiff's interest is an equitable interest in the nature of a charge. See for such an equitable charge Morris v Morris [1982] 1 NSWLR 61, 64 (McLelland J), referred to in Willis v The State of Western Australia [No 3] [2010] WASCA 56 [55] (Buss JA, McLure P & Owen JA concurring).
108 As the first defendant's case was further put at trial, it appears it was to the effect that the interest of the plaintiff in the Depot Property was equal to the proportion of the value of the Depot Property as at 1 January 2005 (not 25 October 2005 as pleaded) that the plaintiff's total contributions to the Depot Property up to that date bore relative to the total contributions by the first defendant to the Depot Property up to that date. That date, counsel for the first defendant put to me, was the date by which the agreement of May 2004 the first defendant contended for had been terminated. The parties agreed at the trial that the value of the Depot Property as at 1 January 2005 should be taken as $275,000.
109 I should immediately add that on my findings above neither the date of 1 January 2005 nor 25 October 2005 can be taken as the date of the first defendant's acceptance of the plaintiff's repudiation of the May 2004 agreement contended for. The date of that acceptance must be taken as the date of the later exchange between the parties following the failure of the first defendant's attempt to raise finance to buy out the plaintiff's then half interest in the Depot Property. I would put that date on the evidence as 8 April 2005.
110 If the plaintiff succeeds on issue (1), issue (2) is whether the plaintiff is entitled to the relief she seeks.
111 The plaintiff seeks relief in the following forms:
112 There is a counterclaim by the first defendant. However, the relief sought is only
113 At the trial, evidence for the plaintiff was given by the following witnesses:
114 In addition there was evidence for the plaintiff in the form of witness statements, tendered into evidence by consent, for Norm Fox, dated 3 March 2010 (exhibit 3), and for Peter Newbon, dated 15 July 2009 (exhibit 4); and a bundle of four expert valuation reports prepared for the plaintiff by Stephen Tucker, dated 11 July 2007, 15 December 2008, 23 June 2009 and 10 February 2010 (exhibit 10).
115 Evidence for the first defendant was given by the first defendant herself, whose examination-in-chief was her amended undated witness statement (exhibit 11). In addition there was a bundle of two valuation reports prepared for the first defendant, dated 25 September 2005 and 13 December 2006, by Max Nevermann, tendered into evidence by consent (exhibit 12).
The partnership basis for the plaintiff's case for relief: the applicable law and my conclusions
116 In closing submissions, as I understood them, counsel for the plaintiff put the principal basis for her case for the relief she sought in counsel's contention that the Depot Property was acquired as partnership property. In my view, that contention is made out, although as will become apparent I do not consider that the property continued as partnership property after the sale of the transport business. However, subject to certain qualifications, I also consider that on the basis the Depot Property was acquired as partnership property and was subsequently held by the plaintiff and the first defendant as tenants in common in equal shares in equity, the plaintiff is entitled to the principal relief she seeks.
117 Further, counsel for the plaintiff contended that even on the defendant's case, to the extent it has been established on the evidence, the plaintiff's case for the relief she seeks has been made out. In view of my conclusion on the first basis, I do not consider I need to consider in any detail whether or not the plaintiff's case is made out on that alternative basis. However, I will return to the matter after dealing with basis the principal basis on which the plaintiff relied for her claim for relief.
118 I begin by indicating that it is my conclusion that the Depot Property was acquired in March 1995 as partnership property. The reasons for doing so lie in the purpose for the acquisition and sources of the funds for the acquisition.
119 It is well established that property acquired for partnership purposes with partnership funds will be regarded as partnership property in the absence of a contrary intention: Partnership Act 1895 (WA) s 31; Fletcher KL, The Law of Partnership in Australia and New Zealand (9th ed, 2007) [5.15]. It is not in dispute that the monies used to provide the purchase price of the Depot Property and related fees and charges were provided out of partnership funds and from the greater part of the proceeds of a loan secured on assets of each of the partners, which it was agreed the partnership would pay from partnership funds.
120 In my view, the first defendant's home owner's grant, and the facts the Depot Property was acquired in the name of the first defendant and the loan was one in the name of the first defendant only, are not sufficient, singly or in combination, to show a contrary intention.
121 On the unchallenged evidence as to how the funds for settlement of the purchase were obtained, I find the grant was not used directly to fund that purchase; and there was no evidence as how, particularly in view of their relatively small size, they facilitated the purchase or the payment of the loan. In my view, the evidence establishes that those proceeds were a contribution of the first defendant to the partnership to assist with the acquisition of the Depot Property, and there is the evidence the first defendant and her then personal partner lived in the dwelling house on the Depot Property for a part of the year, 1995, that property was acquired. But the evidence is not sufficient to establish any further relevant finding.
122 The fact that the Depot Property was acquired in that name is not sufficient to show a contrary intention, where the purchase price was paid by others: the first defendant would hold the Depot Property on a resulting trust for those others. See Fletcher (9th ed) [5.10]. The case for the first defendant as I understood it laid emphasis on her holding title in her own name alone as giving particular significance to what on her evidence was the agreement of May 2004 to transfer title into the parties' joint names in consideration of the continuation of plaintiff's continuing to make continuing contributions to the payments on the loan in respect of the Depot Property. However, I have found there was no agreement for such consideration.
123 I also note the evidence of the plaintiff as to the significance the parties' attached to the title to the Depot Property being taken in the name of the first defendant alone, as follows (cross-examination, ts 164 - 165):
And it was because Ms Cassar was entitled to a first home owner's grant of $7000 that the property was registered in her name alone?---No. The property was registered in her name alone as per my witness statement when I said to her around the time that we were buying the depot I knew that - so there was concerns of her family. Obviously Fewster was registered in my name still. Our personal relationship had broken up. Her family would have been aware of that and I knew that there were concerns coming from her family, I think particularly with her mother, so I said to her, 'Look, I've got a property in trust for you and if we put the depot in your name, then you can have a property in trust for me,' and with a wry smile on my face I said, 'In that way your mum won't ever have to worry about me ripping you off' and she agreed to that and accepted that on those terms.
Yes, I have read that in your latest witness statement, Ms Grundy, but you have made two witness statements in the course of these proceedings, haven't you?---I think you will find that was in my previous witness statement as well, if you look back. It hasn't changed.
124 I should note that the plaintiff's evidence was indeed as appeared in her first witness statement in the proceedings (exhibit 5 [59]), although I note, contrary to the proposition put to the plaintiff by counsel, which she appeared to accept, it was not in fact repeated in whole or in part in her second witness statement (exhibit 6). The first defendant's evidence does not address the communication the plaintiff testified to or rise to an assertion that it was the parties' intention title be taken in her name alone so as to qualify her for the first home owners grant.
125 I consider I should accept the evidence of the plaintiff just referred to because it is a plausible account for the taking of title in the first defendant's name alone, and because it was unchallenged. That would represent strong evidence in support of the acquisition of the Depot Property for the partnership.
126 True it is that the loan was in the name of the first defendant alone, and that would tend to show a contrary intention. However, the evidence is that the partners in the transport business partnership had assumed the obligations under the first defendant's loan, and indeed it is the case of the first defendant that it was understood from the acquisition of the Depot Property that she and the plaintiff would bear the burden of the loan equally. That understanding derives further support from the security for the loan over both the Depot Property itself and the Fewster Street property, which, as I have indicated, it is common ground the parties shared equally.
127 Further, I do not consider that the combination of the foregoing matters is sufficient to show a contrary intention. I have so concluded particularly in view of the evidence of the plaintiff I have accepted.
128 If as I have concluded the Depot Property was partnership property, a question arises as to how to account for the parties' interests in the Depot Property, and the position of the first defendant in respect of the first home owner's grant, following the settlement of the sale of the transport business to the Adsheads on 1 January 1997.
129 It might be contended that, either the transport business partnership should be regarded as having been dissolved at that point, with the consequence, it seems to me, that the parties shared the Depot Property equally as the division among them of the ultimate residue from the dissolution (see Partnership Act s 57(3)(d)); or the business partnership between the parties was not dissolved but continued, or a new partnership was created, not as one for the transport business, but as one in respect of the Depot Property itself. The second contention appears to be that primarily advanced by the plaintiff. In my view the first contention should be upheld.
130 In my view, the partnership was dissolved no later than the time of the sale of the transport business, by mutual agreement (see on that manner of dissolution Fletcher (9th ed) [7.15]). That agreement should be inferred from the cessation of the conduct of the transport business by the plaintiff and the first defendant and the division between them of the proceeds of the sale of all of its assets except the Depot Property, which was retained in specie. The rule is that following a dissolution any partner may apply to have all the property of the firm applied to payment of the debts and liabilities of the firm and the surplus after such payment applied to pay to each of the parties what is due to them, after deducting what is due from them as partners to the firm: Partnership Act s 50. In my view the further agreement of the parties to vary that rule (see Fletcher (9th ed) [7.75]) so far as the Depot Property was concerned should be inferred from the retention of the Depot Property.
131 Further, it is my view that the parties' agreements for the retention of the Depot Property on the basis that it and then a portion of it would be leased to persons who had acquired the transport business is not easily viewed as the creation of a partnership relation in respect of the Depot Property. In my view the co-ownership of the Depot Property on the basis that the lease payments would be applied to the payment of the loan in respect of the Depot Property and the surplus paid to the parties or one of them is not easily to be seen as the plaintiff and the first defendant carrying on a business in common with a view of profit: see Partnership Act s 7(1) and s 8(1); and see French v Styring [1857] EngR 509; (1857) 2 CBNS 357, 366; [1857] EngR 509; 140 ER 455, 458. It is of importance to my view that on the evidence the Depot Property was acquired for the purpose of carrying on a transport business, not carrying on any other business, such as one of generating rental income, when the transport business had ended: compare the authorities cited in Fletcher (9th ed) [2.40] n140.
132 I have noted the evidence of the plaintiff in cross-examination as follows, as to how she understood the relation between herself and the first defendant in respect of the Depot Property after the sale of the transport business as follows (ts 170):
So as far as the interest in the depot was concerned did you regard that in 2004 still as a business partnership?
---Well, obviously the business had been sold but that was part of the business partnership, yes.
133 The understanding of the parties as to the nature of their relation is relevant to the question of whether or not that relation is partnership: Fletcher (9th ed) [2.90]. However, the understanding of the plaintiff in the quoted passage is described as hers, and she does not describe the first defendant's understanding. There is no evidence as to the first defendant's understanding as to the Depot Property continuing as partnership property. Of course, on her evidence, the Depot Property was in fact her contribution to the transport business partnership, and so was not partnership property in the sense I have earlier described: see her re-examination ts 299. In any event the question whether the parties' relation is one of partnership is one of the 'legal consequences arising from certain factual conditions', and the parties' understandings while relevant are not determinative: see Fletcher (9th ed) [2.90] (source of quotation).
134 On my conclusions, it seems to me that the plaintiff and the first defendant should be regarded as having by agreement finally settled the accounts between them, including any entitlements for return of their contributions to the partnership by way of advance or capital: see on the possibility of such an agreement Partnership Act s 57. That agreement should be inferred from the matters from which I inferred the agreement to dissolve the partnership. In my view it would follow there is no claim that may now be made, in respect of the first defendant's first home owner's grant or otherwise, for an accounting in respect of the dissolution of the transport business partnership.
135 On my conclusions, the parties held the Depot Property as co-owners in equity pursuant to an agreement between them. In my view that co-ownership was as tenants in common, on the basis that this was implicit in the parties' agreement to hold their interests in the Depot Property after the dissolution of their transport business partnership. In my view it was implicit that they held their interests as tenants in common rather than as joint tenants, at the least because of the history of the relations between them, which included the end of two businesses they had conducted in partnership, the roadhouse business and the transport business, and the end of their de facto relationship between those two events. In view of that history, it seems to me that, on the analysis and in the terms used by Priestley JA in Baumgartner v Baumgartner (1985) 2 NSWLR 406; (1985) 10 Fam LR 319, 446, had the parties been asked at any time after the dissolution of their transport business partnership 'whether they wanted complete and separate half ownership in the land or an ownership whereby if one died the other became the sole owner they would have both chosen the former'. Although the decision of the majority of which Priestley JA was a member was reversed in Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, I do not consider this reversal called into question this analysis or those terms. In any event, it appears that in the absence of evidence of some contrary intention, equity will presume co-owners in equity are tenants in common, not joint tenants: see Evans M, Equity & Trusts (2003) [2.23] and authority there cited.
136 I also consider the plaintiff and the first defendant held equal interests in the Depot Property. Their respective interests in the Depot Property while it was partnership property might be properly described as each having been an equitable interest in the nature of an equitable chose in action to have the Depot Property applied in accordance with the partnership relation including on a dissolution: see Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352, 366 - 367 (Malcolm CJ); and Fletcher (9th ed) [5.40]. They were equal partners in that business. On my findings as to their agreement to hold the Depot Property as co-owners following the dissolution of that partnership as the ultimate residue following the settlement of the accounts of the partnership in which they were to share that ultimate residue equally, it seems to me that their interests as co-owners were intended to be equal interests replacing their interests as partners.
137 It further seems to me that there was no understanding between the parties that there remained any further item for settlement of those accounts. I return below to the agreement the first defendant contends for in respect of the parties' interests in the Depot Property which was to the effect that accounts between them in respect of that property would be re-opened in certain events, where I explain why I do not find any such agreement. Indeed, I infer on the evidence I consider in that context that the parties intended the partnership accounts between them to have been finally settled, by reason of the way in which they dealt with one another in respect of the Depot Property after the sale of the transport business, on the basis of equality.
138 I should add that the first defendant did not submit to me that the parties' agreements as to their interests in the Depot Property, whether as she contended for them, or as the plaintiff contended for them, were unenforceable for lack of any writing, being non-compliance with the Property Law Act 1969 (WA) s 34(1)(c). It seems to me that any such submission would have failed, on the basis the interests were created out of the interests of the first defendant, as the holder of legal title as well as a partner, and the plaintiff, as a partner, and not a disposition of interests. See Seddon NC and Ellinghaus MP, Cheshire & Fifoot's Law of Contract (9th Aust ed, 2008) [8.21].
139 It is my view that from the commencement of that co-ownership until about 8 April 2005 that neither party could successfully assert a claim for contribution from the other towards the expenses associated with the Depot Property, except as they had agreed otherwise, particularly in respect of improvements, for the following reasons.
140 The only such agreements I find established on the evidence were in respect of the initial improvements to the dwelling house on the Depot Property, and the kitchen renovations to which the evidence of the plaintiff points. In respect of the former, I have noted the evidence of both the plaintiff and the first defendant that certain expenditures which appear to be in respect of improvements and which were made by the first defendant on various dates from 5 April 2002 to 14 June 2002 on the Depot Property were borne equally. I have no evidence that there was such bearing of the costs of the kitchen renovations, and indeed the evidence of the plaintiff indicates to me that she has not paid her agreed share.
141 I do not consider I should not draw this conclusion as to the parties' arrangements because of the evidence of the plaintiff that there was an agreement between the parties in 2002 that the plaintiff was to pay for the cost of air conditioning to the Fewster Street property and that the first defendant was to pay for the air conditioning to the Depot Property, and that, as to the expenditure by the first defendant on the Depot Property between 2003 and 2005 set out in her evidence (exhibit 11 [81]), she had failed to notify the plaintiff of that expenditure save for the kitchen renovations and air conditioning, and thus the plaintiff was 'unable to contribute one half of the expenditure' (exhibit 6 [36] - [37]: the latter is the source of the quotation). The first defendant's evidence was that she did not recall the agreement as to the air conditioning; she was not questioned as to the failure to notify. However, it seems to me the evidence of the plaintiff taken at face value is not inconsistent with the conclusion I have described, as of course notification would be required for any agreement to bear the relevant costs.
142 In my view, neither party could successfully assert a claim otherwise because, until about 8 April 2005, the parties had in substance a continuing agreement that their arrangements with respect to those expenses were ones that provided for equal bearing of those expenses in return for equal sharing of the benefits of that co-ownership; and the evidence is that, with the exception indicated, the parties had met their shares of the expenses in accordance with those arrangements. Those arrangements changed over that period, but there was a series of agreements to that effect for changes in those arrangements as the parties' circumstances or their appreciation of them changed. Those agreements were the ones made when the first defendant and her partner moved from the Fewster Street property, in which she had an equal share with the plaintiff who remained there, into the dwelling house on the Depot Property, in March 2002; when the lease to the purchaser from the Adsheads ended, in August 2002; after the plaintiff had ceased to live at the Fewster Street property, in March 2004; and when that last arrangement progressed further, in August 2004.
143 From 8 April 2005, however, there was no such agreement, in my view, as a result of the position taken by the first defendant then. On the first defendant's evidence, that position was the first defendant's indication that she no longer would proceed on the basis that the parties' arrangements provided for equal sharing of the burden of their co-ownership of the Depot Property, which had the effect of terminating that arrangement.
144 The parties' various arrangements it seems to me were to continue until terminated by either party or terminated and replaced by another arrangement. I so conclude from the way the parties changed their arrangements, and particularly the way in which the plaintiff, on the evidence from her I have accepted, presented the first defendant with her proposal for the changes to their arrangements in March 2004 and the way in which the first defendant responded to those proposals, which on my findings was acceptance of them. I consider that the ways in which those changes were presented by the plaintiff point away from the conclusion that the plaintiff accepted that their arrangements were not terminable otherwise than by agreement; and in my view the first defendant's conduct in accepting the new arrangements proposed on that occasion as I have found that conduct is difficult to account for in terms of a view that the plaintiff was required to adhere to the arrangement absent agreement.
145 Thus, from 8 April 2005, the first defendant should be seen to have made her payments for the expenses associated with the Depot Property thereafter without there being any agreement for equal sharing of benefits and burdens of the sort I have described.
146 However, I do not accept the first defendant's contention that the cessation of any of the parties' arrangements for equal sharing had the effect that the equal shares of the parties in the Depot Property ceased, and those shares fell to be determined by the ratio of their respective contributions to the Depot Property up to the relevant time. The only evidence of such a condition to equal interests, being maintenance of her contributions to the loan in respect of the Depot Property the first defendant says the plaintiff agreed to provide for in the agreement to facilitate the transfer of the Depot Property into the parties' joint names, is evidence I have not accepted. Nor in my view is such a condition to equal interests to any of the agreements I have referred to be implied. This is in view of my finding that the Depot Property was partnership property, in a partnership in which the parties had equal shares, until the dissolution of the partnership in 1997, when the parties' interests in the Depot Property became those of tenants in common in equity in equal shares as I have indicated.
147 In my view, the parties' subsequent agreements were ones they intended should regulate the relationship between them in respect of the Depot Property (as well as the Fewster Street property, until its sale); and, to the extent that that regulation was inconsistent with their rights and obligations as tenants in common in equity in respect of the Depot Property, that regulation should be taken to prevail, thereby qualifying those rights and obligations. I will shortly describe those rights and obligations. I will now explain why that qualification should so prevail.
148 It seems to me that the assertion by either party of rights and obligations as tenants in common inconsistently with the qualification I have described would be unconscionable by reason of the expectation created by their agreements that their relationship would be regulated as I have described, and the parties' reliance to their detriment on the expectation so created. That is, the agreements were the basis for estoppels in the sense described in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; [1988] ANZ Conv R 98; (1988) 164 CLR 387.
149 I have already described the agreements in question, which appear to me to be ample to create the expectation described. The plaintiff's detrimental reliance on the agreement when the first defendant and her partner moved out of the Fewster Street property into the dwelling house on the Depot Property in March 2002 was the payments of the outgoings on the Fewster Street and of her share of the payments on the loan in respect of the Depot Property, through her share of the lease payments from the purchaser from the Adsheads, and of the initial improvements to the dwelling house; while the first defendant's reliance was her agreement to move out and her payment, in the same way, of her share of the loan payments and of the outgoings on the Depot Property. The parties' detrimental reliance on the agreement at the time when the lease to the purchasers from the Adsheads ended, in August 2002, was their continuation of the arrangement save for the payments on the loan by each of them from other sources. The plaintiff's detrimental reliance on the agreement at the time after she had ceased to live at the Fewster Street property, in March 2004, and on the agreement that was its progression, in August 2004, was her allowing the first defendant to continue to occupy the dwelling house on the Depot Property without interference from her as a co-owner who, following her departure from the Fewster Street property, was, on the evidence I have accepted, concerned about the return she would be receiving from the Depot Property. The first defendant's detrimental reliance was to bear all of the payments on the loan in respect of the Depot Property while continuing to pay its outgoings.
150 In my view it would be unconscionable to permit either party now to seek as against the other to rely upon the rights and obligations each otherwise had as tenants in common in equity while those agreements were in effect. Such reliance by the first defendant would be unconscionable in my view where the first defendant had enjoyed the benefit of the Depot Property both for personal use (the use of the dwelling house) and business use (the conduct of her earthmoving business, Atom Ant Earthmoving). I note the discussion of authorities on the relevance of the position of the promisor in Cheshire & Fifoot (9th Aust ed, 2008) [2.16].
151 In my view it follows from my conclusions that the rights and obligations of the plaintiff and the first defendant from 8 April 2005 fell to be determined as those of co-owners in equity without qualification for any agreement that they had arrangements of the kind described. Those rights and obligations are, in my view, sufficiently stated for my purposes in Silvester v Sands [2004] WASC 266 [139] - [141] (EM Heenan J) as follows, referring to Ryan v Dries [2002] NSWCA 3; [2003] ANZ Conv R 47 and In Re Pavlou (a Bankrupt) [1993] 1 WLR 1046 among other authorities:
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. These have been examined extensively in Ryan v Dries (supra) and in Oxley v Hiscock [2004] EWHC 2473; [2004] 3 All ER 703 CA although it may be that the current English approach gives greater recognition to non-pecuniary contributions than has been accepted in this country.
In an instance where the beneficial ownership of a 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 a renovation which has enhanced the market value of a house or, in relation to the repayments of a mortgage where the repayments have effected an ascertainable reduction in the principal 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 their contributions towards the costs of its acquisition. Such a claim, where it exists, will only be available in certain designated proceedings which, include a partition suit or a claim for a compulsory sale or in other proceedings which involve a termination of the proprietary interests of the co-owners whether those interests be legal or beneficial.
Then there is the category of payments which do not directly enhance the capital value of the asset such as for the interest component under a mortgage or other outgoings necessary for the preservation of the property such as repairs, minor improvements and the payments of rates, taxes and other expenses deriving directly from ownership. 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 or necessity continues to meet the mortgage repayments, rates, taxes and other like expenditure. In that situation a remaining co-owner or co-beneficial owner may be entitled to recover a contribution, proportionate to the departed co-owner's beneficial interest in the property, to the mortgage repayments, rates, taxes and like expenditure but, in such cases, the person claiming a contribution or an account will be chargeable with an occupation rent in respect of the period in which he or she continued to enjoy sole possession of the premises - In Re Pavlou (a Bankrupt) (supra) at 1049 - 1050. In some cases a court may simply set-off the payment of expenditure by the continuing occupant against the occupation rent as a matter of convenience but a strict accounting can be demanded by the parties - In Re Gorman (a Bankrupt) [1990] 1 WLR 616 at 626. In this regard, Hodgson JA said in Ryan v Dries (supra) at [61]:
'There seems little question about the broad principle applicable in this situation: a co-owner of property who has exercised the right to occupy the property is not liable to be charged with an occupation rent unless he or she (1) has excluded the other co-owner from occupation or (2) is claiming an allowance for expenditure in respect of the property: see Luke v Luke (1936) 36 SR(NSW) 310. If an allowance for expenditure is claimed, then, by reason of the maxim requiring the seeker of equity to do equity, the claimant can be charged with an occupation rent up to a limit of the amount allowed for the claim for expenditure: see Teasdale v Sanderson [1864] EngR 349; (1864) 33 Beav 534; 55 ER 476; Brickwood v Young [1905] HCA 12; (1905) 2 CLR 387.'
See also Forgeard v Shanahan (1994) 35 NSWLR 206 per Meagher JA at 221 - 222 and Biviano v Natoli (1998) 43 NSWLR 695 CA per Beazley JA at 700 - 704.
152 In this case, the first defendant has not made a claim for a contribution or an allowance for expenditure in respect of the Depot Property. This is except to the extent her case relies on her 'total contributions to the Depot [Property]' relative to the plaintiff's 'total financial contributions' to it to measure the latter's equitable interest in it. I have previously indicated my conclusion that that case has not been made out. However, in my view I should consider the position of the first defendant as if she had made a claim for a contribution or an allowance for expenditure in respect of the Depot Property on the conclusions I have arrived at thus far. The first defendant is in a position to make such a claim in view of the nature of the present proceedings by the plaintiff, which are for the termination of the co-ownership by a sale. On my conclusions the plaintiff is entitled to such a sale, subject to a qualification, as I will explain.
153 However, in this case, as in Silvester (see [144]), there is no evidence on the basis of which I am able to determine the extent to which the expenses that, on the evidence of the first defendant, she paid for after 8 April 2005 (see exhibit 11 [31]) and that were for 'the maintenance and improvement' of the Depot Property enhanced the value of the property. Unlike in Silvester (see [142]) there is no evidence here of the extent to which on the evidence of the first defendant the payments she made since 8 April 2005 on the loan in respect of the Depot Property (see exhibit 11 [79]) have reduced the principal on that loan. There is in this case unlike in Silvester (see [143] and [145]) evidence from the first defendant that she paid 'outgoings' on the Depot Property after 8 April 2005 (see exhibit 11 [31] and [80]), although the extent of those payments is not clear and, except for certain items, it is also not clear what those 'outgoings' represented. However, there is no evidence in this case that the first defendant in making these payments was intending to make a contribution to the property to be shared as the Depot Property was to be shared, thereby precluding her from making a claim for a contribution or allowance in respect of those expenditures: see on such preclusion Noack v Noack [1959] VicRp 22; [1959] VR 137, 142 - 143 (Dean J), quoted with approval in Millar v Guthrie (Unreported, WASCA, Library No 970552B, 28 October 1997) (Kennedy J) 7 - 8. Indeed the evidence is that she had no such intention.
154 Finally, as to the rental value of the Depot Property since 8 April 2005, there was unchallenged expert evidence as to rental value in the bundle of reports of Mr Tucker (exhibit 10). That report shows the rental value of the Depot Property, apparently as commercial property, at various dates over the period 1 January 2005 to 11 February 2010, increasing over that period from $15,600 per annum to $45,500 per annum. In Silvester there was 'no evidence upon which any acceptable estimate of a market rent for the premises could be based or upon which an assessment of mesne profits could be justified' [148]. I consider that on the evidence in this case that is not the position here.
155 On the market rental evidence, I consider it at least possible that the plaintiff's share of the expenditures for which the first defendant may claim an allowance would be extinguished by a claim for use and occupation or mesne profits. However, unlike EM Heenan J in Silvester I do not consider on the limited evidence I have before me that I am in a position to conclude there is a 'high probability' [148] of such extinction, and so, in my view, I am not in a position simply to set off the two, and preclude a claim for an accounting. Compare Silvester [148].
156 Further, from the period before 8 April 2005 there is the matter of the plaintiff's share of the kitchen renovations which as I have indicated on the evidence before me remains unmet, and for which, in my view, the first defendant may claim an allowance on the basis of the equal share the plaintiff had agreed to bear.
157 I turn now to the matter of the sale of the Depot Property by order of the court.
158 There is no doubt the plaintiff as a co-owner in equity of the Depot with a one-half share of it, as I have found, is entitled to an order for its sale under the Property Law Act s 126. Silvester was itself an action in which an order for sale of land was sought by a person claiming to be a co-owner in equity of it. EM Heenan J determined that the applicant had established, on the basis of his contributions to the acquisition of the land, a significant beneficial interest in it, although less than a one-half share, albeit one which upon the repayment of a loan on the property would rise to greater than a one-half share [155(1)]. His Honour also determined there was no prospect of the use of the land for any joint purpose. It would seem that for these two reasons (see [150]) he concluded that there should be an order for the sale of the property, subject (see [151]) to an order that would permit either party to buy the interest of the other at an agreed price or absent such agreement at a valuation conducted in a manner determined by the Court.
159 These orders were made under the Property Law Act s 126, the material provisions of which for my purposes read as follows:
(1) Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
(2) The Court may, if it thinks fit, on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the Court that, by reason of the nature of the land, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstance, a sale of the land would be for the benefit of the parties interested.
(3) The Court may also, if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale; and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.
(4) On directing a sale or valuation to be made under subsection (3) the Court may give also all necessary or proper consequential directions.
160 Given the one-half interest of the plaintiff in the Depot Property, it should be ordered to be sold under s 126(1), unless I see 'good reason to the contrary'. I am unable to see any 'good reason to the contrary', and in my view it would be difficult to establish one where, as in Silvester, there is no prospect of the Depot Property being used for any joint purpose.
161 However, it seems to me that there is sufficient reason to make an order of the kind indicated in s 126(3). That reason is represented, in my view, by the duration of the first defendant's occupation of the Depot Property and the evidence as to her use of it. I have previously referred to the evidence as to her use of it in connection with her earthmoving business (Atom Ant Earthmoving). I also have unchallenged evidence from the plaintiff that, operating from the Depot Property, the first defendant was the agent for a number of businesses. I see no prejudice to the plaintiff in the making of such an order.
162 My conclusions make it unnecessary in my view to address the remaining bases for the plaintiff's claim for relief, being the common intention claim, the unconscionability claim, the unjust enrichment claim and the estoppel claim. I understood this was also the position of the plaintiff, were I to uphold the plaintiff's case on the partnership claim. However, in view of my conclusions on the alternative basis on which the plaintiff contends her claim for relief should be upheld, it is not evident to me that any of those remaining bases would produce a different result.
163 My conclusions would also have the consequence that the first defendant's counterclaim should be dismissed.
The orders I should make on the conclusions I have reached
164 On my conclusions I consider I should at the least make orders declaring the first defendant holds the Depot Property in trust for herself and the plaintiff as tenants in common in equal shares; orders for the sale of the Depot Property and application of the proceeds, subject to an order of the sort provided for in the Property Law Act s 126(3) permitting the first defendant to acquire the Depot Property; and orders permitting the first defendant to seek allowances as I have indicated for expenditures she has made. Further detail for those orders is required, and it may be that still further orders to give effect to those conclusions would also be appropriate. I will hear from the parties as to both of those matters.
165 I turn now in brief to the contention for the plaintiff that her case for relief is made out even on the first defendant's case.
The plaintiff's case for relief on the first defendant's case
166 Counsel for plaintiff put her case for relief on this alternative basis because, he said, the evidence showed there was a joint undertaking in respect of the acquisition and use of the Depot Property, being its acquisition for and its use in the transport business partnership, and subsequently. In that undertaking the parties made equal contributions through the partnership for the acquisition on the basis they shared the Depot Property equally. The first defendant had not, counsel said, made out that there was any arrangement between the parties that that equal sharing was defeasible on the cessation of those equal contributions. This alternative basis on my understanding of it involves that the Depot Property was not acquired as partnership property, but was acquired by the parties in a joint undertaking as described. I will consider the alternative basis, in case my conclusion as to the Depot Property having been acquired as partnership property is in error.
167 On my findings as to the basis on which the first defendant took sole title to the Depot Property, and on the subsequent use of and contributions to the Depot Property, I consider that a joint undertaking to acquire and use the Depot Property for the transport business is made out, if that acquisition was not of the Depot Property as partnership property. However, I find that no larger joint undertaking is made out on the evidence. In that case, the parties' interests in the Depot Property at the point of its acquisition would be determined as indicated in Silvester [39] - [41], in respect of the interests of the three parties who had contributed to the purchase price of the property; sole title to which was taken by the defendant in that case, Miss Sands, and referring to, among other authorities, Calverly v Green [1984] HCA 81; (1984) 155 CLR 242, Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner v Baumgartner (HC). Silvester [39] - [41] is as follows:
Accordingly, in the absence of an agreement between those contributing towards the purchase price that Miss Sands should hold the entire legal and beneficial interest in the property, the established rule is that the beneficial interest should be held by the contributors in proportion to their contributions to the purchase price - Calverly v Green (supra); Muschinski v Dodds ... and Baumgartner v Baumgartner (supra) unless the facts warrant a conclusion that, in the case of the plaintiff or the defendant's mother, their contributions entitled them to no more than an equitable charge over the property to secure eventual repayment to them of their contributions, perhaps with interest - Baumgartner v Baumgartner (supra), Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390 and Napier v Public Trustee (WA) (1980) 55 ALJR 1. It is the measure of the parties' contributions to the purchase or acquisition cost of the property which usually determines their proportionate beneficial share - Calverly v Green (supra). This leaves the question of the significance of subsequent contributions to repayment of a mortgage loan in controversy because the primary rule is that these will not alter the extent of the proportionate beneficial interests determined by contributions to the purchase price. However, there are exceptions to this approach which will later require consideration - see per Gaudron J in Baumgartner v Baumgartner (supra) at 156.
There is some difference in authority over whether contributions to the purchase price are confined to the payments made by the parties only to the price paid to the vendor so excluding fees, disbursements and other incidental costs of completing the transaction such as stamp duty. In a resulting trust case between de facto couples, McClelland J treated the trust as extending to the value of all acquisition costs including the purchase price, incidental costs, fees and disbursements - Currie v Hamilton [1984] 1 NSWLR 687 at 691 but that decision was doubted and a contrary approach was taken by Bryson J in Little v Little (1988) 15 NSWLR 43 at 45 - 46 where his Honour said:
'There is a directness about seeing and treating the purchase money as converted into a piece of land which is not equated by directness with which one could perceive other costs which must necessarily be incurred to achieve that result as converted or transmuted into the piece of land and beneficial interests in it. It does not seem to me that logic truly supports either a decision to include or a decision to exclude money spent, for example, on a duty stamp which under law must be paid for, and affixed to a conveyance as money which has been converted into land. There is a need for the law to fix limits as to the directness or remoteness of the relation, in time and otherwise, between an expenditure and the acquisition of land which it will recognize for the purposes of the law of resulting trusts. For Australian law it is established now that after completion and conveyance and after the resulting trust has come into existence moneys paid for mortgage principal and interest are not sufficiently directly related to the acquisition of the land to be counted for this purpose; this was established by authority in Calverley v Green ... .'
His Honour went on to conclude that what one gets for paying stamp duty is a stamp and not a piece of land. In making these observations Bryson J had earlier acknowledged that, in relation to contributions towards mortgage repayments, it had been established by Bloch v Bloch (supra) that if the parties actually intended at the time of acquisition that their beneficial interests should accord with their future contributions to repayments of mortgage moneys that intention would have effect.
However, despite these features, the view of McLelland J in Currie v Hamilton (supra) was preferred to that of Bryson J in Little v Little (supra) in the New South Wales Court of Appeal by Hodgson JA in Ryan v Dries ... at [53] where his Honour said:
'However, on balance consistently with McLelland J's view, I prefer the view that equity, dealing with presumed intentions and preferring substance to form, would have regard to the totality of the money which purchasers have in truth outlaid to obtain the property. This means that normally the proportions should be determined with reference to the proportions of payments for both the purchase price and the incidental expenses that had to be incurred in order to obtain the property ... '
Sheller and Giles JJA each also agreed in this view. I consider that I should follow the decision of Ryan v Dries (supra) and treat the cost of stamp duty and incidental fees in this case as part of the purchase price of 26 Essex Street.
168 EM Heenan J later dealt with the exceptions to the approach that subsequent payments on the mortgage 'do not alter the extent of the proportionate beneficial interests determined by contributions to the purchase price' in [106] as follows:
Nevertheless, it is also clear that in certain circumstances the payment of mortgage instalments may be relevant when determining the extent of the beneficial interests of the contributors. In Baumgartner v Baumgartner (supra) the situation was that the two parties to a de facto relationship pooled their incomes for living expenses, including mortgage repayments, but made unequal contributions to that fund. On moving to a second home, the purchase price of that home was provided entirely by mortgages taken out and advances made by the man alone but, while living in the home, the mortgage repayments were met out of the fund of pooled incomes to which the unequal contributions had been made. Despite the fact that the purchase price had been wholly provided by the man, the court concluded that, on an equitable accounting between the parties, the woman had an interest which reflected her contributions to the funds used to repay the mortgage. Of this situation Gaudron J said at 156:
'The utilization of the fund for the making of mortgage repayments should be viewed in the context that in this country homes are commonly acquired by means of crédit foncier arrangements. Under these arrangements 'equity' in the home is accumulated over time with the gradual reduction of the mortgage debt by regular repayments apportioned to both principal and interest. Where a fund (which is the property of the contributors thereto) is used for the acquisition in this manner of 'equity' in an asset, it is unconscionable for one only of the contributors to that fund to assert ownership of that asset to the exclusion of any interest in the other contributor(s). That situation is properly remedied by the imposition of a constructive trust.
Where a constructive trust is imposed by reason of the utilisation of a joint fund to acquire 'equity' in an asset, the terms of the trust will necessarily need to be fashioned to take account of contributions made other than from the joint fund. On occasions it may be sufficient to treat the contributions to mortgage repayments as if they were contributions to the consideration for the purchase of the asset, and to fashion the terms of the constructive trust along the same lines applicable to a resulting trust so that the beneficial interest is held in tenancy-in-common in shares proportionate to the total contributions made towards the acquisition of 'equity' in the asset. However, other considerations may also be relevant. For example, in the context of domestic relationships it is relevant to inquire whether the asset was acquired for the purposes of the relationship, and whether non-financial contribution should be taken into account.'
169 I have previously referred to the evidence as to the way in which the purchase price, stamp duty and incidental fees in this case were provided for, and how the parties from the outset agreed to bear the obligations under the loan secured by the mortgage on the Depot Property and the Fewster Street property. I consider that evidence establishes that the initial interests of the parties in the Depot Property on the joint undertaking were equal. No change should be made to this by reason of the subsequent payments towards the loans secured by the mortgage on the Depot Property that came from transport business funds while the business was continuing.
170 However, it seems to me that once the transport business ceased, the joint undertaking ceased. In my view, the application of part of the proceeds of the sale of the transport business towards the loan in respect of the Depot Property so acquired and dealt with, and the agreements between the parties as to the Depot Property for the leasing of it, and the agreements subsequent to those agreements that I have found, show that the parties had agreed the Depot Property should be held by the first defendant for the two of them as tenants in common in equal shares, with their arrangements under those agreements being for the equal sharing of the benefits and burdens of that ownership until about 8 April 2005. The agreement that they would hold the Depot Property as tenants in common in equal shares was effective to displace the interests of the parties based on their contributions to the Depot Property at the point of acquisition with any subsequent adjustment: see Silvester [39]. After 8 April 2005 the parties' rights and obligations fell to be determined as tenants in common in equal shares as I have previously indicated.
171 That is, I conclude on the alternative basis that the plaintiff is entitled to the same relief, with the same qualifications, as indicated for the principal basis on which the plaintiff rests her claim for such relief.
172 As I have indicated, the plaintiff's claim for relief includes a claim for specific performance of the agreement I earlier found, made at about the time of the sale of the Fewster Street property (on the plaintiff's evidence-in-chief) or May 2004, subsequent to that sale but before its settlement (on the first defendant's evidence-in-chief), that the Depot Property would be transferred into their joint names, for the purpose of which I also found that the parties agreed to set aside $6,000 from the proceeds of the sale. I have also found that this agreement was not made in consideration of a promise by the plaintiff to continue paying a share of the payments on the loan in respect of the Depot Property. It was not submitted by the first defendant that this agreement would be unenforceable for lack of consideration in the absence of that promise, and, in view of the parties' agreement for the set-aside of a portion of the proceeds of the sale of the Fewster Street property, no such submission would in my view have succeeded.
173 Nor did the first defendant expressly plead or indeed otherwise submit that the claim to enforce the agreement failed because the agreement was oral and so did not satisfy Statute of Frauds 1677 (Imp) s 4 as continued in force by Law Reform (Statute of Frauds) Act 1962 (WA) s 2. The Statute may not be raised by way of defence unless it is expressly pleaded: Rules of the Supreme Court 1971 (WA) O 20 r 9(1) and Civil Procedure in Western Australia as at 9 December 2010 [20.9.6].
174 Nor was it put to me that any of the other defences to a suit for specific performance applied in this case. For those defences, see Meagher R, Heydon D and Leeming M, Meagher Gummow & Lehane's Equity Doctrine and Remedies (4th ed, 2002) [20-055] - [20-175]. In any event it is not evident to me that any of them would apply.
175 I would also note that there appears to me to be no reason to exercise the discretion not to award specific performance: see for that discretion Meagher, Heydon and Leeming (4th ed, 2002) [20-005], [20-030].
176 Accordingly, I consider the plaintiff has made out her case for the order for specific performance sought to be made.
177 I will hear from the parties as to the final orders I should make.
(1985) 2 NSWLR 406
(1985) 10 Fam LR 319
(1987) 164 CLR 137
(1984) 155 CLR 242
(1992) 8 WAR 352
(1985) 160 CLR 583
(1988) 164 CLR 387
(1905) 2 CLR 387
(1994) 35 NSWLR 206
(1998) 43 NSWLR 695
(1981) 180 CLR 390
(1980) 55 ALJR 1
(1988) 15 NSWLR 43