Irvine v Paterson [2026] QDC 20

[4] As I explain below, the evidence did not support any equitable claim over the Property by Ms Paterson, nor did she have any legal entitlement to remain on the Property after possession was demanded in November 2022. Accordingly, Mrs Irvine is entitled to an order for possession and mesne profits which I assess at $34,200.

[5] In this case, it is convenient to begin with my assessment of the witnesses. The principal witnesses are the parties.

[6] Mrs Irvine was an honest witness. She answered questions directly and did not, so far as I could determine, exaggerate or understate matters to assist her case. Notably, a fact she volunteered without any prompting, is that she did not provide the funds to acquire the Property. She frankly explained that the funds came from Mr Irvine and that she knew nothing about where those funds were sourced from. She was able to confine her evidence to what she knew, saw and did, and understood the difference between that kind of evidence and speculation on her part.

[7] It was plain that she did not have much affection for the defendant, but I did not perceive her to exaggerate or shape her evidence to indulge that attitude. She did not, for example, claim to have knowledge of Ms Paterson's presence or occupation prior to 2022, or her conduct on the Property during that time, even though it would have been easy to do so. She was cross-examined by Ms Paterson. That was a difficult situation for both women, though they remained courteous. Mrs Irvine's responses in cross-examination did not negatively affect my assessment of her as a witness.

[8] Ms Paterson's cross-examination raised one key issue on credit. She suggested that on Mrs Irvine's evidence, she did not know if Ms Paterson returned to live at the Property after her apparent eviction in April 2021 (discussed below). She relied on a notice from the Council about unregistered dogs in December 2021. I did not consider that document, nor Mrs Irvine's responses, affected her reliability. The document did not directly contradict her recollection and in any event, if she had been mistaken, it made no difference to the overall circumstances. I should mention also Ms Paterson's concern about Mrs Irvine's declaration regarding the transfer of the Property, that Mr Irvine's sister was her sister-in-law. That was literally untrue given the divorce in 1983. However, that erroneous description is not significant. Mrs Irvine and Mr Irvine remained very important to each other after the divorce, as will be seen. It is not a surprise Mrs Irvine might have considered her ex-sister-in-law to remain such. Ms Paterson's exaggerated complaints about this minor matter reflects on her credit, not Mrs Irvine's credit.

[9] One qualification on Mrs Irvine's evidence is that she frequently gave evidence about discussions between 2010 and 2015 in terms of what was agreed with Mr Irvine or what she discussed with Mr Irvine from time to time in general terms, rather than by reference to specific recollections of specific conversations. It would be odd if she did have detailed recollections of the words of particular conversations, given they involved events occurring so long ago. All the more so, given that between about 2010 and 2012, Mr Irvine was living in her home, or she was visiting him every weekend at the Property and they would have had informal, on-going conversations about their plans over that period. Her evidence about those earlier conversations necessarily must be considered with that kept in mind. As I will explain, however, her version of events is broadly consistent with other credible evidence.

[10] I accept Mrs Irvine's evidence unless otherwise noted in these reasons.

[11] Ms Paterson's evidence-in-chief was by affidavit. I had the opportunity to observe her in cross-examination. I also observed her conduct as advocate in her own case before the Court. Great care needs to be exercised in relying on the latter to inform the former.

[12] It is open to a Court to make observations about the credibility of a represented party where an advocate has demonstrably misled the Court on instructions or by reason of lack of instructions from his or her client. So it should be for an unrepresented party who as advocate makes demonstrably false or wrong statements from the bar table while acting as advocate. Care would need to be taken, though, in acting on such a matter if it was not raised in cross-examination of the self-represented party.

[13] I think it is also open to a Court to infer that suggestions put to witnesses by a self-represented party in cross-examination might reflect the person's version of events, in the same manner as the Court could do so where counsel puts suggestions to a witness. Again, however, care is necessary. A self-represented party might not understand how to cross-examine on their version properly, or they might themselves be unclear as to their own version or they might not understand the protocols of cross-examination.

[14] I think it is also open to a Court to draw inferences as to the self-represented party's attitude to the proceedings and general character from their demeanour and behaviour as advocate. Again, however, care must be exercised. As Judge's constantly tell juries, Court can be an unfamiliar place for a witness, a fortiori for a self-represented party and emotion can have a number of explanations other than what might appear to be the obvious one.

[15] Bearing all those matters in mind, I think in assessing Ms Paterson's evidence, I can consider her demonstrations of intense emotion in the course of the trial. Those intense expressions of emotion occurred when the closeness of her relationship with Mr Irvine was challenged or when her occupation of the Property was being disputed.

[16] Those expressions of emotion are consistent with her evidence that she and Mr Irvine had a genuine de facto relationship as partners consistently from 2011 to his death in November 2022 and that they lived together over that whole period, with only limited periods of separation. They are also consistent with her firm belief that she is entitled to the Property and that Mrs Irvine is not because of that relationship and her contributions to their joint life. It was evident from her cross-examination that these two points are fundamental to Ms Paterson's version of events. They are not accurate views and coloured her evidence.

[17] For the most part, I accept that Ms Paterson was trying to tell the truth in her evidence. She made frank concessions that she never had any discussions with Mrs Irvine that gave rise to any representation as to her entitlement to remain on the Property sourced with Mrs Irvine. A dishonest person would have been tempted to fabricate a discussion of some kind and she conspicuously did not, despite having many opportunities to do so.

[18] However, honesty and reliability are different issues.

[19] I do not accept her as a reliable witness. I accept that there was a period between about 2014 and maybe up to late 2020 or early 2021 in which Ms Paterson and Mr Irvine were important to each other, though whether that ever rose to the level of a de facto relationship as a matter of law is not clear.

[20] However, Ms Paterson was and is emotionally committed to a version of her relationship with Mr Irvine which is not consistent with the facts. In her mind, her relationship was a deep, committed, long-term relationship which persisted from 2011 until Mr Irvine's death. Further, this version of the relationship means that she believes she is entitled to Mr Irvine's property. Reinforcing this belief is, I infer, her fear of leaving the Property and having to find somewhere else to live. These powerful emotions have led her to reconstruct events in a manner which corresponds with that version, even if the objective facts are to the contrary. While that is understandable and perfectly human, it makes her an unreliable witness.

[22] First, Ms Paterson's evidence as to the commencement of the relationship is wrong. All the witnesses with the opportunity directly to observe who was at the Property and when, gave evidence that she was not on the Property until early 2013 at the earliest, long after discussions about the purchase of the Property were over. In cross-examination, Ms Paterson said that she met Mr Irvine in about 2011 and that they dated for six months. This might be broadly true (the timing remains questionable), but even if true, it is inconsistent with there being any committed relationship at that time, especially given Mr Irvine's chequered and inconsistent love life.

[23] While precise timing of events can be difficult when people are speaking of events long ago, the order of events is clear, as set out from paragraph [56] below. There is no realistic possibility that Ms Paterson was at the Property until, in my view, early 2013. The allegation of a relationship from 2011 is a self-serving reconstruction that it dates her relationship to when the Property was being purchased.

[24] Second, Ms Paterson maintains that her relationship was continuous, and she and Mr Irvine lived together from arriving at the Property in 2011 until Mr Irvine's death. This is also incorrect. As I find below, the evidence compels the conclusion that Ms Paterson left the Property for at least a month, and probably more, from mid-April 2021, and in circumstances which reflect a breakdown in whatever relationship existed at that time. Ms Paterson's performance on this issue was particularly poor in cross-examination. She said that she only left around that time for 24 hours and that she did so because she was ordered to depart by police for 24 hours arising out of a domestic violence incident. This evidence is directly inconsistent as to timing with the Police Protection Notice, (see paragraph [93] below) and with Ms Paterson's own contemporaneous email (see paragraph [96] below). Further, as I explain in paragraph [35] below, Ms Paterson left the property for eight months to about September 2022.

[25] Third, Ms Paterson swore in her various affidavits that Mrs Irvine controlled Mr Irvine and his financial affairs. This is wrong. I accept Mrs Irvine's evidence that Mr Irvine was secretive about his financial affairs, and she merely accepted what he did and supported him in it. That evidence is consistent also with Mr Irvine's character as evident from other witnesses. That alone is not sufficient for Ms Paterson's evidence to damage her reliability. Mere different versions do not support that conclusion. However, Ms Paterson's evidence went much further. She seemed to hold the view that Mrs Irvine exercised control over Mr Irvine and misused that control unconscionably. She was willing to swear to that broad proposition. There was no specific evidence she could give in cross-examination which sustained that view. It was asserted despite her evidence that she did not ever speak with Mrs Irvine. The best she could do was to refer to vague statements from Mr Irvine. Indeed, as I find below, Mr Irvine actually wanted Ms Paterson to leave the Property in April 2021 and supported Mrs Irvine's steps to evict Ms Paterson. Ms Paterson's belief in Mrs Irvine's control of Mr Irvine has no basis in fact.

[26] Fourth, Ms Paterson's version was that she and Mr Irvine pooled their financial resources and that she made substantial contributions to their joint financial life. There was no documentary evidence of any such conduct, though for people who live in a world of cash, that might be unremarkable. However, it was evident from the uncontentious evidence that Ms Paterson's income earning activities were marginal. This involved collection of scrap metal, aluminium cans and the occasional sale of a vehicle. In cross-examination, she estimated her yearly income over 2015 to 2020 at about $2000 per year. It was only when the modest nature of that figure occurred to her in the witness box that she estimated ever higher figures. I do not think she was deceiving the Court as she continually revised upward her figures, but it was in my view the consequence of her realising the disconnect between reality and her version.[2]

[27] There are numerous other areas where the evidence on particular points favours the version of the plaintiff's witnesses over the evidence of Ms Paterson, the accumulated weight of which tends to undermine Ms Paterson's reliability (see for example paragraph [111] below).

[28] Ms Paterson was not a reliable historian of events, and I only accept her evidence if it is contrary to her interests in the trial, corroborated by other evidence or inherently likely given other evidence I accept or the ordinary course of events.

[29] Mr Dwyer gave brief evidence about ownership of the Sarina property. There was no justifiable basis to doubt his evidence though it has little relevance to this proceeding in any event as explained in paragraphs [38] and [39] below.

[30] Ms Kernovske and Mr Wane Irvine are the children of Mr and Mrs Irvine.

[31] Ms Kernovske primarily gave evidence about events occurring from May 2021 to the events on 10 November 2022, where there was an altercation with Ms Paterson at the Property on the day after Mr Irvine's death. She was cross-examined for some time about her lack of direct knowledge of the day-to-day relationship between Ms Paterson and Mr Irvine. She conceded she had little direct knowledge of that matter. There was also evidence and cross-examination about issues in the administration of the estate, but that was of no relevance. I was left with no reason to doubt the substance of her evidence, bearing in mind the care which should be exercised when people are trying to recall conversations years after they occur.

[32] Mr Wane Irvine gave evidence about regular dealings with his father about, and at, the Property, and the relationship with Ms Paterson, up to November 2022. He did not exaggerate or enhance his evidence as to what he observed from time to time and, despite some obvious dislike of Ms Paterson, answered her questions directly. I was left with no reason to doubt the substance of his evidence, with the same proviso as noted for his sister above.

[33] Mr Terry Irvine was Mr Irvine's brother. His evidence also dealt with what he observed at the Property and the relationship between Mr Irvine and Ms Paterson on his regular visits to his brother. He also gave evidence about the work done on the investment property developed by Mr Irvine at Lot 4, 215 Arborfive Road, Glenwood (Lot 4 or Arborfive). He impressed me as a calm witness with a very good recollection of detail. He presented as neutral in his personal response to Ms Paterson in his evidence-in-chief and in cross-examination. He readily admitted to going on a holiday with his brother and Ms Paterson and to various other propositions put to him by Ms Paterson about the extent of his knowledge of private issues between her and Mr Irvine. He was a very reliable witness.

[34] Ms Howie was Mr Irvine's next-door neighbour. She gave evidence about her observations of Ms Paterson's pattern of residence from time to time and the nature of the relationship from time to time. It was evident from the cross-examination that there had been confrontations between the couples. However, observing her evidence, I had no reason to doubt the substance of it. Indeed, in cross-examination Ms Paterson did not really challenge Mr Howie's version so much as seek to qualify it, by suggesting she did not know what was going on in her relationship with Mr Irvine from day to day. Notably, however, she did not challenge the Ms Howie's evidence that Ms Paterson was a jillaroo and was regularly away for periods of mustering. I do not know if that was deliberate or not, and Ms Paterson does not now present as someone who is up to the challenges of such a job, but perhaps things were different some years ago.

[35] Ms Fedrosejevs gave evidence primarily of the nature of the relationship and the absence of Ms Paterson from the Property, particularly in 2022. She presented as a direct and blunt witness. She was cross-examined to suggest that her romantic interest in Mr Irvine was a motive for giving a version unhelpful to Ms Paterson. Ms Fedrosejevs conceded that interest, but I do not consider it affected the key part of Ms Fedrosejevs' evidence being that Ms Paterson was absent from the Property from about the start of 2022 until about September, when she began to return again from time to time. Indeed, despite me directly suggesting Ms Paterson should challenge that evidence if she had a different version to put, the cross-examination failed to do so (except for establishing that the witness was away in February for a limited period for a medical procedure). In fact, Ms Fedrosejevs' evidence remained direct and rational despite rather provocative suggestions from Ms Paterson.

[36] Mr Hubbard gave evidence of his assessment of the rental value of the Property for the mesne profits claim. While I thought his experience in assessing valuation issues for the particular kind of property in the particular area might have been limited, it was sufficient to express an admissible opinion on the relatively simple issue before the Court. His evidence was challenged on the basis that he had been informed there was a dispute about Ms Paterson's occupation, but I was not persuaded it affected his assessment. In any event, relevant comparative properties and other objective considerations were included in the report which allows me to form my own view, with the assistance of his report.

[37] Mrs Irvine was married to Mr Irvine in 1968 and divorced on 25 August 1983. They had two children, Ms Kernovske and Mr Wane Irvine. Despite their divorce, the Irvines remained close friends. Indeed, in my view, they continued to see each other as the important other person in their lives despite other relationships (at least by Mr Irvine) and had a high level of trust and confidence in each other. As will be seen, Mr Irvine trusted Mrs Irvine to such a degree that he put property which he had paid for in her name and carried out his investment plan with her involvement as owner and borrower. Mr Irvine also moved in with Mrs Irvine in between stints in prison, including for about 18 months prior to moving to the Property. Mrs Irvine for her part, appears to have cared a good deal for him, welcomed him back from time to time, helped him get settled into the Property over some months, and co-operated with him in various undertakings including the Property and another investment property. [3]

[38] In about 2010, Mr Irvine was living in a property in Sarina owned by Mr Dwyer. He lived there with his "lady friend" (as Mr Dwyer put it), Ms S. Mr Dwyer purchased the property in 2001. In around 2004, some form of proceeds of crime investigation involving Mr Irvine was undertaken. Ms Paterson obtained an unsigned copy of a statement, seemingly from an officer involved in the case. That statement is inadmissible for a number of reasons, including that Ms Paterson wanted to rely on hearsay statements from Mr Irvine contained in it. In any event, it was not Mr Dwyer's document and he could not be directly cross-examined on it. Based on the statement, Ms Paterson put to Mr Dwyer that the Sarina property belonged to Mr Irvine. He denied that. He gave evidence the matter had gone to Court and his title had been confirmed. There is no evidence to make any other finding.

[39] This tangentially relevant evidence does cast light on a problem with Ms Paterson's approach. She submitted that if the funds used to acquire the property in Sarina belonged to Mr Irvine, so did the net proceeds when it was sold (as occurred in 2011). She submitted she could in effect trace those funds into the Property. There was no evidentiary basis to reach such a conclusion nor were those allegations pleaded. However, they would in any event be irrelevant. As will be seen, it is not in dispute that the funds for the Property came from Mr Irvine.

[40] In about 2010/2011, Mr Irvine came to live with Mrs Irvine on his release from prison after breaching his parole. He lived with her at her home in Nambour for about 18 months. At that time, Mr Irvine's sister and brother-in-law owned the Property. It had a habitable shed, a drop toilet and a couple of fruit trees. Mrs Irvine thought it was otherwise a beautiful block.

(a) There were discussions between the Irvines about the terms upon which the Property would be acquired by Mrs Irvine;

(b) Mrs Irvine purchased the Property from Mr Irvine's sister for $110,000. The contract was signed on 23 January 2012 and a transfer was registered on 1 February 2012; and

(c) Mr Irvine paid the purchase price (how or from what source is not known by Mrs Irvine, who probably had learnt not to ask too many questions because she would not have received any answers).

[42] The dispute between the parties, at least on the defence and reply, concerns the content of the discussions between Mr Irvine and Mrs Irvine about the terms upon which the purchase occurred.

[43] Mrs Irvine's evidence about these discussions was general in nature, as one would expect given the passage of time. However, her evidence was as follows:

(a) The discussions about acquisition were between her and Mr Irvine only;

(b) Mr Irvine approached her about purchasing the Property which was owned by Mr Irvine's sister and brother-in-law, Wanda and David;

(c) What was discussed was that "I buy the Property. He could live there. I could come and visit him there if I wanted to. Family could come. Other friends could come and stay there.";[4]

(d) Mrs Irvine said the reasons the Property was put in her name were that Mr Irvine would "reside there. He would rent it off of me, which changed from being renting...to pay[ing] the rates and... maintenance" and that it was "protection for him and the kids";[5]

(e) She also said that he wanted to protect the Property, seemingly if he went back into jail;[6] and

(f) She said Ms Paterson was not discussed between them nor known to her at the time.

[44] One might also infer, taking the broadest view of that evidence as a whole, that he wished to protect the Property from claims of the kind he faced in around 2004 seemingly under proceeds of crime legislation. Mrs Irvine denied being aware of any pending issues in 2011, though Mr Irvine did not discuss his financial affairs with her as I accept that evidence.

[45] Although there was no other direct evidence of the discussions Mrs Irvine alleges, there was evidence which tended to supported Mrs Irvine's version. Mr Wane Irvine gave evidence that his father first approached him to be the owner of the Property but that he declined to be involved. His father said at that time that he wanted to protect the Property from problems he was then having financially and wanted to secure the Property to be available for him and ultimately his children if something were to happen to him. That is generally consistent with Mrs Irvine's evidence in that latter regard.

[46] Ms Paterson adduced no evidence of any discussion of the kind she alleges in her defence. Indeed, the case pleaded by Ms Paterson is wrong in key factual respects:

(a) She alleges that there was a mortgage over the Property with AMP which was paid by Mr Irvine and her. I have already found this is demonstrably wrong, and it was effectively abandoned by Ms Paterson before trial; and

(b) She alleges that Mr Irvine paid insurance on the Property. Mrs Irvine said there was no insurance on the Property, consistent with Mr Irvine's practice. There was no evidence to the contrary.

[47] Mrs Irvine's evidence about the agreement between her and Mr Irvine was not challenged directly in cross-examination. In fact, despite prompting from me, Ms Paterson did not do so. The cross-examination was more concerned with issues of the on-going relationship from time to time between Ms Paterson and Mr Irvine.

[48] Ms Paterson's pleaded case in her defence was as follows:

(a) Mr and Mrs Irvine discussed that the Property would be purchased in Mrs Irvine's name for the benefit of Mr Irvine and Ms Paterson;

(b) They (Mr Irvine and Ms Paterson) would pay outgoings and maintenance, along with insurance and mortgage payments;

(c) They had a right to reside for their lifetimes; and

(d) Upon full repayment of the mortgage, the Property would be transferred into Mr Irvine's name.

[49] As noted already, in cross-examination, Ms Paterson expressly abandoned the allegation that there was a mortgage on the Property. Indeed, her Notice to Admit Facts invited the plaintiff to admit that fact, which of course she did. On the other hand, there was no abandonment of the allegation that Mr Irvine and Ms Paterson paid insurance on the Property. She confirmed her evidence that she contributed to insurance in her affidavit sworn 6 February 2026, adopted at trial (the February 2026 affidavit).[7] However in cross-examination, she said there was no insurance, and that Mr Irvine never took out insurance. In my view, Ms Paterson was repeating evidence she heard from Mrs Irvine in Court to that effect without realising she had done so and without realising it was inconsistent with her earlier sworn evidence.

[50] When cross-examining Mrs Irvine, Ms Paterson did not put her pleaded case. I put Ms Paterson's pleaded case to Mrs Irvine, which she rejected.

[51] Further, Ms Paterson did not give any evidence, whether in affidavit or in cross-examination, which made out her pleaded case. She frankly and repeatedly conceded she never discussed the Property or anything else with Mrs Irvine, anything she swore to about what Mrs Irvine had said and done was based only on what Mr Irvine told her and that Mr Irvine never told her about any discussion like the pleaded discussion with Mrs Irvine. That evidence was inconsistent with her plenary statements to the contrary in her sworn evidence[8] but she was adamant in her cross-examination.

[52] When I asked her about whether she read and understood the defence before it was filed, she prevaricated. Ultimately her position was that she was sent it by her solicitors at the time but did not understand it. I struggle to accept this evidence. Ms Paterson might not be a sophisticated person, but she has intelligence and is literate. At times, her oral expression reflected that. However, I am not sufficiently confident of the circumstances to conclude that she understood the defence and then later altered her story when it no longer suited her. The result of her position, however, is that she gave no evidence to support the pleaded basis of her entitlement in equity raised in her defence.

[53] Mrs Irvine said she did not know where Mr Irvine got the purchase price funds. She said Mr Irvine usually used cash and did not tell her about his financial affairs. I accept this evidence. Ms Paterson's evidence that Mrs Irvine controlled Mr Irvine's financial affairs is based on unspecified statements she attributed to Mr Irvine. Even if such things were said from time to time, they do not persuade me of the truth of the assertion. It was evident in cross-examination that Ms Paterson's evidence of such control was based on Mrs Irvine's eviction notice in 2021 and the fact that Mr Irvine and Mrs Irvine used the same solicitors in some transactions. Ms Paterson rigorously (and pointlessly) resisted the suggestion that Mr Irvine could have chosen another solicitor if he wished. Her evidence about Mrs Irvine's control over Mr Irvine's affairs was entirely invented, albeit without dishonesty.

[54] Ms Paterson alleged the Sarina proceeds were used to buy the Property. That is inconsistent with Mr Dwyer's evidence and there was no evidence to support it except Ms Paterson's speculations.

[55] I find the purchase price was paid by Mr Irvine. No other finding about the source of the funds can be made. Further, I find that it was consistent with the trust and confidence between Mr Irvine and Mrs Irvine which marked their post-divorce life that they would use the same solicitor for matters affecting their family's or Mr Irvine's financial affairs. That might be a bitter pill for Ms Paterson to swallow, but it is true, nonetheless.

[56] Mr Irvine moved out of Mrs Irvine's home in Nambour in about late 2011 and moved into the shed on the Property. For the ensuing 12 to 18 months, Mrs Irvine was at the Property most weekends, helping Mr Irvine to settle in and learn to cook the dishes she had made for him over the years. Over this period, Ms S came to live at the Property for some months. The witnesses who knew Mr Irvine well were all of one view that he had many female friends and the status of his relationships with them were not entirely clear to them from time to time. It probably does not matter, but on balance it appears that Ms S was present because she needed somewhere to stay during a transition period in her life, rather than because the relationship they previously had was rekindled, though it is impossible to know for sure.

[57] Ms Paterson said that her relationship with Mr Irvine began in 2011. She relied on her own evidence and evidence in statutory declarations by four witnesses. Those statements were ultimately[9] not objected to despite the witnesses not being called for cross-examination. Those witnesses tended to support Ms Paterson on the commencement time of the relationship, but not with any particularity. None of the statements persuade me that the detailed version of the commencement of the relationship given by the plaintiff's witnesses is incorrect. While precise dates are difficult to identify, I think on the balance of probabilities that Ms Paterson was not present at the Property until at least the beginning of 2013.

[58] The next issue is the nature of the relationship when Ms Paterson went into occupation. In cross-examination, Ms Paterson said that she met Mr Irvine in about 2011 and that they dated for 6 months before she moved onto the Property. I could locate no evidence, however, that explained how she came to actually be on the Property. Mr Terry Irvine gave evidence that Mr Irvine told him that Ms Paterson needed a place for a horse and that he was going to let her bring the horse onto the Property for a short time because she had been evicted. Mr Terry Irvine said Mr Irvine told him he was doing it to get brownie points with another lady, a friend of the "horse" lady. He said Ms Paterson was the horse lady. This evidence seems admissible as going to Mr Irvine's state of mind, that being whether he understood he was going into a relationship with Ms Paterson when she came onto the Property, though the point might be debated. Ms Paterson agreed a horse was involved in some manner. Mr Wane Irvine gave similar evidence as to the timing of Ms Paterson coming to the Property.

[59] It is difficult to be certain how Ms Paterson came to be on the Property. On the whole of the evidence, I think it more likely than not that she came onto the Property ostensibly to live there for a while without any particular understanding with Mr Irvine as to terms, formal or emotional. That seems consistent with his ambiguous relationships generally and the informal lifestyle of both persons. However, I also accept that at some point an intimate personal relationship began and developed, perhaps quite quickly. I find they began living together as a couple, probably from mid-2013.[10]

[60] There is one unusual piece of evidence from Ms Paterson which remains to be considered. She swore that she and Mr Irvine consulted a doctor on 13 December 2011 about conceiving a child. I find that very hard to accept, even though it was not the subject of cross-examination. At that time, Ms Paterson was 44 years old, and Mr Irvine was 65 years old. Such a step would have been out of character for Mr Irvine, to say the least. All I can conclude is that any such event which did occur, did not occur in December 2011.

[61] On about March 2014, Mrs Irvine purchased Lot 4. She said that she and Mr Irvine had discussed purchasing the property with a view to investment. She readily agreed that her role was to purchase Lot 4 and borrow the funds for the acquisition. Those funds were borrowed from AMP. Mr Irvine's role was to repay the mortgage and carry out any work necessary. It was in this sense, Mr Irvine's project. However, I find that he wanted to carry it out with Mrs Irvine; he trusted her to be involved.

[62] Mr Irvine was responsible for paying the mortgage repayments until Lot 4 was sold on 18 May 2021. The mortgage was paid down within 18 months or so, by late 2015 perhaps.

[63] At around that time, a house located on the neighbouring property was moved onto Lot 4 and that house was renovated. Mrs Irvine drew down some $55,000 on the mortgage to fund acquisition of that house and renovation work on it once it was moved to Lot 4.

[64] Mr Terry Irvine helped Mr Irvine at two key stages of those works. He was present for about four days to help with the restumping, and he was present about 10 weeks later to assist in building new rear stairs and did other cabinetry work. He did not see Ms Paterson there at those times.

[65] Ms Paterson says that she was actively involved in the renovation work and that the project was very much a joint one. It is difficult to assess if that is correct or not because there is no other evidence on the subject and Ms Paterson is not a reliable historian. Given this work was seemingly at least in part in the period which the relationship was probably at its best (during 2016), I am willing to accept Ms Paterson was involved to some degree, given Mr Irvine was likely busy on the project from time to time. But I am not persuaded she was involved financially (she did not have the capacity to do so) nor that she did substantial valuable work on the project.

[66] Lot 4 was sold on 18 May 2021 for $300,000. Mrs Irvine gave evidence that all but a small sum of the net proceeds were paid to Mr Irvine or at his direction. That was not challenged at trial. I have no reason to reject that evidence.

[67] The real question is: what does Lot 4 have to do with this case? It appears that Ms Paterson alleges that the receipt by Mrs Irvine of the net proceeds of the sale of Lot 4 supports her claim against the Property, though how it does so is obscure, beyond a conclusory allegation of an entitlement to trace in her most recent affidavit and counterclaim. Given the order of events, there is no way funds could be traced into the Property from the sale of Lot 4.

The relationship of Ms Paterson and Mr Irvine: 2013 to 2021

[68] I now turn to the state of the relationship from its start in about mid-2013 to the first proven separation in mid-April 2021. There were quite different versions of this relationship. Ms Paterson said there was a close, on-going relationship over that whole period involving the merging of financial and personal lives. She claimed support in that from statutory declarations from five persons. Three of those declarations are of little use on the details of the relationship from time to time because of the scant detail they contain.[11] Of the other two, one is from a Ms Weier. It is unpersuasive because of the errors it contains (Barry told her he had paid off the Property: it never had a debt, so this seems highly improbable) and its gratuitous partiality to Ms Paterson in relation to the conduct of the neighbours (problems with the dogs were the fault of the neighbours, said Ms Weier). It also contains observations which tend to undermine its own conclusions, notably her observation that Mr Irvine and Ms Paterson told people that they were not together but she did not believe that to be true.[12] The declaration of a Ms Mahaffey is more uniformly positive, but it does contain the observation that they were always together and happy, something not borne out by other credible evidence, or even Ms Weier's declaration.

[69] On the other hand, the plaintiff's witnesses described a relationship marked by conflict and tension. Ms Howie described frequent loud and abusive arguments and frequent departures from the Property by Ms Paterson from time to time as a result. There was no love lost between Ms Howie and Ms Paterson, but as I have said, I did not doubt the substance of Ms Howie's evidence. Importantly, this was corroborated by Mr Terry Irvine, whose evidence I accept without qualification, and also by Mr Wane Irvine. Their evidence on this matter was consistent with the declarations of Mr Farquhar and Ms Golding.[13] The relationship was frequently a tumultuous one, with frequent abusive fights which led to Ms Paterson leaving the Property. How long she left for at various times between 2013 and April 2021 is hard to judge, as is whether any such flare up led to the end of the relationship which existed at any time before April 2021. However, it appears more probable than not that a relationship of some kind continued in some form or other over the period of mid-2013 to April 2021.

[70] I can be confident that there were some good times over that period. The material contains an invitation to Barry's birthday party in which the Property is called "Barry and Selene's place". This was likely done with Barry's agreement even if he did not create the invitation himself. There is the note written by Mr Irvine and signed by him on 4 October 2016 which states (the 2016 Note):

I, Barry Stewart Irvine, of 451 Arborten Rd Glenwood, hereby state that in the event of my death all my possessions, assets including property interest, and financial holdings be passed to my loving partner, Selene Patterson [sic]

[71] There is another acknowledgement of the relationship in a note dated 15 May 2018 issued by a medical officer at Gympie Hospital stating that Mr Irvine required "partner Selene Paterson to help patient" on the day of an operation. No objection was taken to that note, though it is unclear who provided the information recorded by the medical officer. It is of little weight.

[72] There are various statements recorded in the statutory declarations relied upon by Ms Paterson ascribed to Mr Irvine to the effect that Ms Paterson was important to him, though I am unpersuaded as to the timing of those statements proffered in the statutory declarations, given the potential for error in such recollections, where they are inconsistent with other evidence. Further, I think it is unlikely that in those good times there was no mutual support in living arrangements, though how and how much is not clear.

[73] There is another aspect of the relationship over this period which needs to be considered: the condition of the Property and the attitude of Mr Irvine to that matter.

[74] The Property was described by all witnesses as being in excellent condition prior to Ms Paterson coming onto the Property. I accept that evidence. Many members of the family visited it at that time and described it from their own observations. The witnesses also described a continued degradation in the condition of the Property from 2014 to 2021. There is no doubt that occurred. Apart from their evidence, there were a number of notices from the Fraser Coast Regional Council (the Council) requiring work to be done on the Property and several photographs. There were two principal problems. The first was the large number of unregistered dogs which were kept on the Property. The second was the large quantities of bric-a-brac which built up over the years. This appears largely to have comprised scrap metal and aluminium cans along with various other items which were indicative of hoarding.

[75] Ms Paterson did not accept that the Property was degraded by hoarded items and unregistered dogs, characterising the hoarded items as being part of a joint business with Mr Irvine. I find that there was hoarding of scrap metal and other items on the Property and that Mr Irvine put up with it, though did not encourage or participate in it, at least not to any degree, because:

(a) To do so would be inconsistent with his conduct prior to 2013;

(b) Ms Paterson agreed that at least the can collection business was primarily her business;

(c) Mr Terry Irvine never observed Mr Irvine involved in those activities;

(d) Mr Farquhar and Ms Golding's declarations confirm that conclusion; and

(e) Once Ms Paterson left, Mr Irvine engaged in efforts to get rid of the items.

[76] I also find that there were numerous dogs on the Property and that they were there at Ms Paterson's behest. She appeared to accept that. They were a point of contention in the relationship, and, at best, Mr Irvine put up with the dogs. They were also eventually removed from the Property after Council notices.

[77] As to their financial arrangements, I do not accept that that relationship involved the merging of financial affairs. There is no documentary evidence of that and to do so would be quite out of character for Mr Irvine. Also, as I explain in [26] above, I do not accept Ms Paterson had sufficient resources to make a meaningful financial contribution.

[78] My conclusion as to the nature of the relationship between mid-2013 and April 2021 is as follows. The relationship was tumultuous and marked by periods of separation, though not usually for extended periods. Ms Paterson returned to the Property after such separations on each occasion. There was no material merging of financial affairs nor were Mr Irvine and Ms Paterson involved in common business activities in any consistent manner. I do accept however that from time to time they would have worked together on the Property or in Mr Irvine's activities, though as an incident of their relationship. Ms Paterson was primarily responsible for the hoarded items brought onto the Property and for the many dogs which were there. Mr Irvine did not like the dogs or the hoarding but put up with it sometimes and had fights with Ms Paterson about it other times.

[79] On the other hand, the relationship went through some periods of peace and Mr Irvine and Ms Paterson were genuinely close at times, according to their view of relationships. Whatever reservations he expressed to others, I find Mr Irvine preferred to have Ms Paterson there than gone for the most part over this period.

[80] Whether this relationship comprised a de facto relationship within the meaning of s 32DA of the Acts Interpretation Act 1954 (Qld) and, if so, when over this period, is not necessary to decide in this proceeding, though the above findings would tend to support a conclusion that it was not such a relationship. That is so despite the allegation of that legal conclusion in the counterclaim (alleged without any time period identified). No relief is sought based on that legal conclusion as such. Rather, the issue which is relevant is the closeness of the relationship from time to time as a fact relevant to the equitable relief sought. It is neither a necessary nor sufficient condition for relief that that definition was met from time to time.

[81] Ms Paterson's case depends entirely on statements and conduct by Mr Irvine in relation to the Property as the foundation for her claim. Such statements are of little relevance to her pleaded defence, except to the extent they might provide the foundation for inferring the agreement she alleges between Mr Irvine and Mrs Irvine. However, given the importance of the issue to the case actually advanced at trial by Ms Paterson and raised by the counterclaim, I will deal with that issue.

[82] Mr Irvine did not make any statement to Ms Paterson about the Property at any time before she moved onto the Property, at the earliest, because of my finding that she was not living there and not in a relationship with Mr Irvine before then. All discussions between Mrs Irvine and Mr Irvine about the ownership of the Property were completed by that time. There is no possibility Ms Paterson was even considered in those discussions.

[83] What other evidence is there of statements by Mr Irvine?

[84] First, there is some evidence from Ms Weier about a statement to her by Mr Irvine that the Property was paid off and that he agreed he should transfer it out of Mrs Irvine's name. As noted above, I do not accept that was said because its factual foundation is clearly wrong.

[85] Second, there is the 2016 Note. Ms Paterson relies on that heavily as a statement of intention by Mr Irvine. But there are problems with it as a foundation for equitable relief on the evidence before me and generally:

(a) The statement was not made until 2016, long after the time identified in the defence;

(b) The only evidence as to the circumstances of the creation of that document is the statutory declaration by Ms Mahaffey. It appears that the one version of this declaration propounded by Ms Paterson had a certification by Ms Mahaffey added to the original version.[14] This oddity is not explained in the evidence. One inference is that Ms Mahaffey added her certification later, albeit it is dated with the same date as Mr Irvine's original. That gives me some concern about the reliability of Ms Mahaffey's statutory declaration on this issue (and generally);

(c) The document is, if anything, a statement of future testamentary intention. Such intentions may be changed, even if they are included in a formal will, which is "by its very nature and in its very essence a revocable instrument,"[15] a fortiori in an informal document like this. Further, it does not expressly record any promise or representation or agreement which would give rise to any equitable interest binding on Mr Irvine, (much less Mrs Irvine); and

(d) There is no evidence that Mr Irvine ever showed the document to Ms Paterson nor that she was aware of it until after Mr Irvine's death (at least that I could locate), nor that she relied upon it.

[86] Third, there is Ms Paterson's evidence in her February 2026 affidavit that Mr Irvine told her that the Property was intended to be their permanent home and that registration of the Property in Mrs Irvine's name was administrative in nature and not representative of true ownership. This evidence was directed quite clearly to the events at the time of purchase of the Property. As I have found, Ms Paterson was not involved at that time with the Property nor with Mr Irvine. I do not accept that evidence.

[87] Fourth, in cross-examination Ms Paterson frankly conceded two matters:

(a) That she occupied the Property at Mr Irvine's invitation only and that if he asked her to leave, she was obliged to do so; and

(b) That any work she did or contributions she made to the Property were made because of her relationship with Mr Irvine.

[88] These concessions were repeated on several occasions. Ms Paterson understood what she was asked and gave what she believed to be honest answers. Mr Pemberton relies on these answers as demonstrating that whatever acts or representations by Mr Irvine occurred, Ms Paterson did not rely on them. I deal with that below. But her frank answers also tends to support the conclusion that nothing clear was ever communicated to her. This is consistent with my overall impression that Ms Paterson's real case was that she was entitled to share in Mr Irvine's property primarily because of her de facto status, rather than because of some common intention or joint enterprise involving the Property.

[89] I conclude on the evidence as a whole that Mr Irvine might have made some vague statement from time to time about the Property being their joint home. That was true over the period of mid-2013 to April 2021, albeit there might have been separations for work or because of fallings out from time to time. It is also possible he said words to the effect that Ms Paterson would be looked after when he died, though it should be kept in mind that Mr Irvine had no expectation he would be dying any time soon, particularly around the time that the 2016 Note was drafted. His death was the result of an accident. However, I do not accept that the evidence establishes to that he made any statements that the Property belonged to them both or that if she did work on the Property, Ms Paterson would get an interest in it, or that they were engaged in a joint endeavour to improve the Property to be their home for life.

[90] On 20 October 2020, a Council officer inspected the Property and concluded that it was unsightly in breach of the relevant local law. On 3 December 2020, the Council sent a compliance notice to Mrs Irvine as registered proprietor of the Property requiring her to remove all rubbish, metal, unregistered vehicles and parts by 11 January 2021. It was also sent to Ms Paterson.

[91] Mrs Irvine went to the Property on about 8 February 2021. She saw Ms Paterson and Mr Irvine. She told them to clean up the Property because she was not going to pay the Council to do it.

[92] On 30 March 2021, Mrs Irvine received a letter from the Council's solicitors stating that the compliance notice had not been complied with, notifying failure to do so was in the Council's view an offence, and seeking consent to Council coming onto the premises to remediate the Property, failing which the Council would seek an order from the Magistrates Court. Mrs Irvine again told Mr Irvine to fix the problem because she was not going to go to Court over the issue.

[93] In or about late March or on 1 April 2021, a Police Protection Notice (the PPN) (the version in the material is undated) was issued by a police officer. Only the PPN is before the Court, not any particulars of the alleged acts of domestic violence. It identifies Mr Irvine as the aggrieved and Ms Paterson as the respondent. It required Ms Paterson to not commit domestic violence and prohibited her from the Property until the afternoon of 2 April 2021.There was no evidence of what led to the PPN except that of Ms Paterson. I deal with her version of these events below.

[94] In about early April 2021, Mrs Irvine drew a draft letter directing Ms Paterson to leave the Property, had it settled by her solicitor and sent to Ms Paterson. That letter was dated 6 April 2021. It was sent on Mrs Irvine's instructions. It directed Ms Paterson to remove her possessions and vacate by 6 May 2021.

[95] At some stage in this process, Mrs Irvine spoke to Mr Irvine about Ms Paterson. The premise of the discussion appears to have been that responsibility for the state of the Property lay with Ms Paterson. As I have found, that was true. Mrs Irvine said that Mr Irvine should get Mrs Irvine off the Property. She said Mr Irvine told her that he had been trying to but that Ms Paterson would not leave.[16]

[96] The only witness able to give admissible evidence as to whether Ms Paterson left or not at this time, and for how long, is Ms Paterson. No witness said they were there regularly over this period and what Mr Irvine might have said would not be admissible evidence of that fact. Ms Paterson, however, sent an email to Mrs Irvine's solicitors on 5 May 2021 (the 5 May email) in the following terms:

I am responding to letter sent to me 6 April 2021 received 8 April 2021. I have left the property on 21 April 2021. Due to Barry's request. As I have been in a relationship with Barry Irvine for over 10 years, I believe the council compliance was a shared issue and I had done my upmost to fulfil my duty as I too received compliance and not just for my items.

I am continuing to try to acquire accommodation elsewhere, but to date have been unsuccessful, but as soon as I find an appropriate property, I will be seeking access to remove the remained of my possessions from 451 Arborten Rd.

As for Council Compliance, I was making good progress, but due to Barry's physical violence, I chose to remain safe and leave the property. He has already taken responsibility for my possessions, by loading them into his ute and disposing and selling it of his choosing. He has already gained monetary gain by doing so.

[97] That email carries considerable weight as a contemporaneous document sent by Ms Paterson in circumstances where these proceedings were not in contemplation and Mr Irvine was alive and well. The statement that Mr Irvine had removed some of Ms Paterson's items seems consistent with Mrs Irvine's evidence that Mr Irvine bought a bobcat for that purpose in about February 2021.

[98] Ms Paterson's version of events around this time is as follows. She said that:

(a) The PPN was issued because of alleged violence by Mr Irvine against Ms Paterson;[17]

(b) Mr Irvine had not told Mrs Irvine he wanted Ms Paterson to go;

(c) He told her he did not want her to go;

(d) That Ms Paterson only left for one day when told to leave by the police following the PPN; and

(e) The 5 May email was not correct.

[99] On the latter point, she was directly challenged by Mr Pemberton, who suggested that her evidence about leaving for one day and her statements in the 5 May email could not both be correct:[18]

Were you wrong earlier, or were you wrong in this email when you told the solicitors that you left?‑‑‑Neither.

Well ‑ ‑ ‑?‑‑‑I left the property for 24 hours because Barry had become abusive due to other in - things that were happening on the property - um - I left for 24 hours because - under police direction because Barry had attacked me due to something that had occurred. And if I could provide the evidence, I would. I asked the police to record the actual phone call.

[100] Ms Paterson flagged tendering unspecified recordings on the afternoon of day two of the trial. None were produced to the plaintiff.

[101] I reject Ms Paterson's version of events over April and May 2021. The PPN is directed to Ms Paterson, not Mr Irvine.[19] While PPN's can sometimes be wrong about events, I do not accept that it was issued because of Mr Irvine's violence towards Ms Paterson on this occasion. Further, I consider the 5 May email to be a more reliable version of events than Ms Paterson's version at trial. Not only is it a contemporaneous document sent in relation to a formal demand to vacate, it is also consistent with Mrs Irvine's evidence that Mr Irvine wanted Ms Paterson to go. She did leave the Property at Mr Irvine's request and remained absent as at 5 May 2021.

[102] There is one final point to note about this period. Ms Paterson swore in her February 2026 affidavit that at no time prior to Mr Irvine's death did Mrs Irvine demand possession or communicate she was not entitled to possession. That is plainly wrong, given the 6 April letter and Ms Paterson's acknowledgment of it in her 5 May email.

[103] While Ms Paterson left the Property as a result of either the 6 April letter or Mr Irvine's request or both by mid-April 2021, she returned at some stage thereafter. She gave evidence that Mr Irvine asked her to return. It is impossible to know the truth of that proposition. Ms Paterson's evidence alone is not reliable. On the other hand, it appears she was back on the Property some time in later 2021. That is confirmed implicitly by both Mr Terry Irvine and Ms Fedrosejevs, who noticed that Ms Paterson was not at the Property from about the start of 2022. The latter had her own romantic relationship with Mr Irvine in this period. I accept their evidence, including the implication that Ms Paterson was there from time to time after she had been evicted in mid-April 2021. It also appears her dogs either returned or never left, because on 17 December 2021, the Council wrote notifying potential action over unregistered dogs on the Property.

[104] Given my rejection of Ms Paterson's evidence that she was absent only one day in May 2021, there is no other evidence as to how she came to return. It is possible Mr Irvine invited her to return, despite the problems which had bedevilled their relationship and led him to ask Mrs Irvine to help getting Ms Paterson to leave. After all, people are not always consistent in their relationships and after a time Mr Irvine might have been lonely. It is also possible that he felt sorry for Ms Paterson and let her return to live on the Property, even though no relationship, or no stable relationship, existed from time to time. In any event, I accept that she returned to the Property at some stage around mid to late 2021.

[105] Whatever occurred in that regard, I find that she left around the start of 2022 and was absent until at least August or September 2022. I also accept that she started to spend time at the Property again from the start of September 2022. There is a handwritten letter apparently in Mr Irvine's hand dated 4 September 2022 which states:

This, 451 Arborten Rd Glenwood, is your home, and I, Barry Irvine, are [sic] most happy to have you here

[106] The authenticity of this letter is not challenged, and I have no reason to doubt the date it bears. However, it does not communicate any basis for any entitlement in Ms Paterson to the Property nor to reside on it, beyond Mr Irvine's permission. Nor does it communicate the existence of any intimate relationship, much less that they were "living together as a couple on a genuine domestic basis".[20] The document lacks any personal tenor of that kind. Rather, it communicates that Ms Paterson has a home on the Property and he is happy for her to live there.

[107] I find it likely that Ms Paterson came and went from time to time after she returned from her long absence in 2022.

Events following Mr Irvine's death on 9 November 2022

[108] Mr Irvine died unexpectedly on 9 November 2022. Ms Paterson was present when Mr Wane Irvine went to the Property on the evening of his father's death. She was there with a number of other people, some of whom were friends of his father's. Mr Wane Irvine did not encounter hostility and joined in what appeared to be an impromptu wake for Mr Irvine. He stayed the night at the Property.

[109] The next morning, Ms Kernovske and her husband came to the Property to secure the personal effects of her father. Mrs Irvine also attended. They did not expect Ms Paterson to be present. There was a confrontation in which Ms Paterson asserted the Property was hers and Ms Kernovske and Mrs Irvine begged to differ. Police were called and they directed the Irvine parties to vacate the Property. They left after Ms Kernovske was permitted to photograph some of their father's personal property by police.

[110] Mr Irvine had made a will in 1975. Following the 1983 divorce, Mrs Irvine could not act as executor and gifts to her were revoked.[21] Ms Kernovske was prima facie entitled to letters of administration of the will and as personal representative and together with Mrs Irvine, instructed Power & Carwright, to write demanding possession from Ms Paterson within 24 hours. The letter was dated 14 November 2022. Ms Paterson did not give up possession.

[111] Ms Kernovske obtained letters of administration for the will on about 9 February 2023. Ms Paterson cross-examined Ms Kernovske to suggest this must have been the result of a conspiracy to obtain probate before Mr Irvine's death.[22] This was a ridiculous suggestion, which had no basis in any matter except a mistaken belief that probate could not be obtained within about three months of death. This misconceived suggestion reflects Ms Paterson's inability to be rational about any matter relating to Mr Irvine and their relationship.

[112] Mrs Irvine commenced these proceedings on 16 November 2022. She sought interlocutory relief against Ms Paterson at the same time, seeking possession pending determination of the proceedings. On 17 November 2022, Judge Cash KC adjourned the application on certain undertakings. On 8 December 2022, Mrs Irvine brought an application for contempt of the undertakings against Ms Paterson and to relist the application for interlocutory relief. On 30 January 2023, Judge Cash dismissed the application for interlocutory relief. Ms Paterson therefore remained in possession. Costs were reserved.

[113] The proceedings did not progress very quickly and from time to time two solicitors for Ms Paterson were granted leave to withdraw. On 1 July 2025, perhaps to bring matters to a head, Mrs Irvine sought summary judgment. The matter came before me in applications in Brisbane on 14 August 2025. I ordered the filing of material. On 2 October 2025, I ordered the summary judgment application be dismissed on the basis that the material raised factual issues which required a trial. There was thereafter some case management which ultimately produced the counterclaim on the file (for which leave to file was not ultimately opposed by the plaintiff).

[114] On 28 November 2025, I made orders for an answer and made directions for trial and for the trial to occur in Gympie in early 2025. On 8 December 2025, trial dates commencing 16 February 2025 were confirmed.

[115] From about October 2025 (and perhaps before), a member of the community began appearing to assist Ms Paterson in conduct of the proceedings. I granted her leave to participate as a McKenzie's friend on each occasion and again at trial. Ms Paterson certainly needed such assistance given her emotion and the seemingly disordered state of her recollection of events.

[116] The notion of a McKenzie's friend arises out of an English matrimonial case, involving a husband and wife of Jamaican origin.[23] In that case, "a young man called Hanger who was an Australian barrister" attended at the trial with Mr McKenzie. Mr Hanger (the Queensland Bar's Ian Hanger KC) was not instructed to appear and there was no solicitor on the record. His intention was to sit at the bar table and assist Mr McKenzie to conduct his own case. The trial judge concluded that was not permissible and Mr Hanger had to leave the bar table. The English Court of Appeal overturned that decision (and the judgment in favour of the wife on a key issue). Davies LJ observed (footnotes omitted):

Counsel for the husband has submitted to this court, in my opinion rightly, that the learned judge was wrong in taking that course. Mr. Hanger was not there to take part in the proceedings in any sort of way. He was merely there to prompt and to make suggestions to the husband in the conduct of his case, the calling of his witnesses and, perhaps more importantly, on the very critical and difficult questions of fact in this case, to assist him by making suggestions as to the cross-examination of the wife and her witnesses.

Our attention was called by counsel for the husband to some words of Lord Tenterden CJ used many years ago in Collier v. Hicks. I need not go in any detail into the question of fact which arose in that case. Very shortly, it was that somebody wished to appear before a magistrates' court and he was turned out. An action of trespass was subsequently brought. In the course of giving the first judgment in that case, Lord Tenterden said:

"Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices."

[117] The citizen who participated as McKenzie's friend in this case carried out the role with diligence, equanimity and discretion. She greatly assisted in the conduct of the trial. She did not wish her name to be known but she has the thanks of the Court.

Ms Paterson has no equitable interest in the Property

[118] Mrs Irvine's case is a simple one. She is the registered proprietor and is entitled to possession unless Ms Paterson can make out a basis in law to answer that entitlement. The defence sought to do so on the basis of the equity arising from an agreement between Mr Irvine and Mrs Irvine to benefit Mr Irvine and Ms Paterson, which was acted on by various contributions to the Property by Mr Irvine and Ms Paterson, such that they were entitled to title to the Property, and/or that Ms Paterson was entitled to equitable compensation for her contributions.

[119] Although at trial Ms Paterson's real case appeared to be that articulated in her counterclaim, she never abandoned the defence and, even in cross examination, did not appear to do so. For the reasons articulated in paragraphs [40] to [52] above, Ms Paterson fails on her defence.

[120] Ms Paterson's counterclaim raises a different case to the defence. The plaintiff did not ultimately oppose leave to file the counterclaim, even though it raised a different case from the defence and was inadequately pleaded and particularised. It was largely a series of conclusory propositions, which were informed somewhat by the defence. The failure to challenge the counterclaim was understandable given that the attitude of plaintiff before the Court was to get the matter to trial.

1. The Defendant (Selene) was in a long-term de facto relationship with the late Barry de Burgh Stewart Irvine ("Barry") from 14 February 2011 until his death on 9 November 2022.
2. During that time, Selene and Barry cohabited continuously at 451 Arborten Road, Glenwood ("the Property"), treating it as their permanent home.

1. Selene and Barry jointly paid utilities, council rates, and improvements on Arborten for over a decade.
2. Glenys sent rates notices to Arborten for payment, which Barry and Selene consistently paid.
3. Selene contributed financially and through physical labour to maintenance, repairs, and property improvements.
4. Glenys's claim that Selene "wrongfully entered" Arborten on or about 9 November 2022 is denied; Selene had lived there lawfully since 2011 with Barry's consent and remains in lawful possession.
5. The property is uninhabitable and lacks a septic system, rendering Glenys's mesne profit claim ($300 per week) baseless and inflated.
6. The Defendant (Selene) and Barry were de facto partners within the meaning of s 32DA Acts Interpretation Act 1954 (Qld) and s 4AA Family Law Act 1975 (Cth).
7. Glenys was not Wanda's "sister-in-law" and was divorced from Barry decades earlier.
8. Funds from the 2011 Sarina sale were used to purchase Arborten (2012) and later fund Arborfive (2014), both improved through Selene's labour.
9. Glenys has already benefited financially from the sale of Arborfive ($235,603.96) and Sarina ($325,000).
10. Equity supports tracing of funds and the imposition of a constructive trust under Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, and Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604.
11. It would be unconscionable for Glenys to deny Selene's equitable interest in Arborten.
12. On 9 November 2022, within hours of Barry's death, Glenys commenced interlocutory proceedings before Judge Cash KC, seeking injunctions and later contempt proceedings.

1. By reason of the above, Glenys holds Arborten on constructive trust for Selene.
2. Alternatively, Glenys is estopped from denying Selene's beneficial interest.

[122] The counterclaim appears to be based on a claim that the Property is owned by Mr Irvine in equity and that Ms Paterson's entitlement arises from her relationship with Mr Irvine and her contributions to the value of the Property. If that is the intention, the counterclaim fails properly to plead a cause of action. It fails to plead:

(a) Any proper basis to trace proceeds belonging to Mr Irvine from either Sarina or Lot 4 into the Property, nor any other basis for Mrs Irvine to hold the Property on trust for Mr Irvine;

(b) Any representation by Mr Irvine of a proprietary interest, common intention with him, joint endeavour with him or any other basis for any constructive trust to arise over the Property; and

(c) It fails to plead any detrimental reliance on any such matter necessary to give rise to an equitable obligation binding Mr Irvine's conscience in respect of his equitable title to the Property.

[123] As to the first matter, the evidence at trial was that Mr Irvine provided the consideration to Mrs Irvine to acquire the Property. That makes the source of the funds and the tracing allegations irrelevant (even though they were not made out). It is not necessary to fall back on presumptions of resulting trust or advancement to identify the consequence in equity of Mr Irvine providing the consideration to acquire the Property. There is direct evidence of his intention. His intention was so that he could benefit from the Property, sheltered from potential claims against him and risks to the Property if he went back to jail for some reason, and that the Property could pass to his children. Absent further examination, acting honestly, Mr Irvine's intention flowing from the first matter would be that Mrs Irvine took the Property beneficially. In any event, the second matter would support the conclusion that Mrs Irvine held the Property after Mr Irvine's life for his children. This tends to be supported by his discussions of his intention for the Property with his son. I am not persuaded that Mrs Irvine owned the Property on trust for Mr Irvine such that it was his absolutely in equity.

[124] As to the second matter, even ignoring the lack of pleading, it is not possible to extract from the evidence led at trial some act, representation, agreement or understanding by/with Mr Irvine which potentially engaged equitable relief. Notably, I am not persuaded Mr Irvine made any representation, agreement or statement which promised an interest in the Property to Ms Paterson. Nor was there evidence of any common intention or joint endeavour.

[125] Even if the first two matters were somehow established, though, Ms Paterson would fail for two reasons:

(a) I do not accept that she made any substantial contribution, financially or otherwise, to the Property (as explained in paragraphs [26] and [77] above). Indeed, the contribution represented by her various scrap metal activities on balance would have reduced the value of the Property if anything, as would the introduction of the numerous dogs from time to time.

(b) And even if she did make contributions, as I found in paragraph [87] above, she did not do so in reliance on any promise, common intention or joint endeavour, but rather because of her relationship with Mr Irvine.

[127] The plaintiff advances a claim for mesne profits. Such a claim is not a claim for compensatory damages. It is a claim for recovery of the benefit to the defendant of use of the plaintiff's real property. Its precise legal characterisation has been the subject of debate,[24] though one might think that it falls into that anomalous category of restitutionary claims referred to historically by the 'dangerous' title 'waiver of tort', now replaced by the more doctrinally sound (in the post implied contract world) of restitution for wrongs.[25] Interesting as it is to reflect on a description of a remedy as dangerous, it is fortunately unnecessary to form a final view on the taxonomy. The authorities were fully reviewed, and the principles summarised, in a recent decision as follows:[26]

[128] First, an abiding feature of the case law concerning damages for mesne profits consequent upon a trespass to land, together with authorities in the analogous context of detinue, is that such damages are for the defendant's actual use or usage of the plaintiff's real or personal property.

[129] That feature may be seen both in the historical emphasis on a trespassing defendant being required to give up "profits" derived from the trespasser's use of the property, and also in the views of those judges and academics who have detected at least a restitutionary "flavour" to the action for damages for or by way of mesne profits.

[130] It may also be seen in the fact that damages for or by way of mesne profits have only been awarded or have been limited by reference to the actual usage of the property: see Bunnings, Gaba and passages in the judgments of Denning LJ and Somervell LJ in Strand.

[131] It is also consistent with judgments of the highest and most persuasive authority, including those of the Privy Council, the House of Lords, the English Court of Appeal, the Full Court of the Supreme Court of Western Australia and a relatively recent decision of this court, namely Bunnings.

[132] Secondly, in every case in which damages for or by way of mesne profits have been awarded, they are for the defendant's use of the property in its existing state at the time of the commencement of the trespass. That is entirely logical as a matter of principle because that was the state the property was in when the interference with the plaintiff's right to exclusive possession commenced, and the logic of the remedy is that the plaintiff was entirely out of possession of the property for the duration of the trespass and hence was in no position to change, alter, improve or develop the property.

[133] Thirdly, whilst it is open to a plaintiff to claim damages for trespass by reference to any contractual rights associated with the property in question or indeed business opportunities which may have allowed the development of the property, such damages are only available for actual loss shown, on the balance of probabilities, to have been suffered.

[134] Fourthly, the usual measure of damages for or by way of mesne profits will be the market rent for the premises or for the hire of the goods in their state during the period of the trespass. The calculation of that market rent must have regard to the particular context of the case and characteristics of the property or goods in question, as the variable rent calculated in Inverugie by reference to the holiday season illustrates.

[135] Fifth, whilst the usual measure of damages for or by way of mesne profits will be the market rent for the premises in their state during the period of the trespass, there may be special circumstances associated with the defendant which warrant a departure from this yardstick. Any departure from this yardstick is not, however, at large, but again is tied or limited by the defendant's actual usage of the property in question.

[136] Sixthly, and in a similar vein, the market rent may be conceptualised or influenced by reference to the particular characteristics of the trespasser (see Ashman and Thompson) or the plaintiff (see, for example, Chep's willingness in Bunnings to accept a lower rate of hire for a large customer such as Bunnings).

[137] Seventhly, the particular circumstances of the parties and the property in question may be especially relevant in a case where there is no usual or standard market for the rental or hire of the property in question: see, for example, Roberts and Waugh.

[128] While the usual situation where a mesne profits claim arises is where a lessee has held over without any terms of the lease applying to that period, it applies equally where a person is in possession without lawful authority but asserts and maintains exclusive possession.

[129] The plaintiff has made out the elements of a claim for mesne profits:

(a) The effect of this judgment is that Mrs Irvine was entitled to immediate possession from, at the latest, service of these proceedings, which must have occurred by the hearing on 17 November 2022;

(b) Ms Paterson did not give up possession; and

(c) She remained in occupation as a trespasser and remains in occupation even now as a trespasser.

[130] Ms Paterson made submissions to the contrary of the last point. She appeared to submit that Mrs Irvine somehow left her in possession pending the trial in such a manner as to amount to de facto authority to remain on the Property. There is no evidence to support this submission. I reject it.

[131] Mrs Irvine is therefore entitled to mesne profits for the period of unlawful occupation which is 17 November 2022 to the date of this judgment. The correct measure is the market rental for occupation of the Property in the state it was in on 17 November 2022. Mr Hubbard gave evidence as to the market rental based on an inspection on 6 January 2023. That date is sufficiently close to 17 November 2022 to provide a view of the Property relevant to its state at that date, absent some evidence of a material change in the intervening seven weeks.

[132] Mr Hubbard was cross-examined to suggest partiality affecting his opinion. I was not persuaded that he was partial to Mrs Irvine.

[133] Ordinarily where there is expert evidence on a subject which is not impugned by cross-examination, a Court ought to accept that evidence unless it gives reasons for not doing so. I have some reservations about the rental valuation range:

(a) Mr Hubbard did not set out in his valuation a detailed description of the Property. Based on the evidence at trial, it was at best a fairly primitive living arrangement, without a flushing toilet for example. It is also unclear how much it had been cleaned up since April 2021, though I note no more action from Council is in evidence, so I infer a reasonable job had been done on that front; and

(b) It was difficult to judge just how comparable the comparable properties shown in the report were to the Property. They generally seemed to be of a much higher standard, even the modest little houses shown.

[134] I do accept that the Property did have a market value, for the order suggested by Mr Hubbard based on his judgment and the general market data in the report. However, allowing for the above factors, I consider a weekly rental of $200 per week is the correct market rate.

[135] I have one further point to address. At some point the suggestion was made that the Property did not have a market rate because it could not have been rented out due to Council rules on the entitlement to reside on the Property. I am not persuaded that provides an answer to the mesne profits claim for two reasons.

(a) First, it was not established on the evidence there were Council rules which prohibited residence on the Property;

(b) Second, it was not established on the evidence that as a matter of practical reality, the Council would take action to enforce such laws. Councils do not always enforce every law and the evidence that they would be unlikely to do so in relation to the Property is that they had not done so over the many years of Mr Irvine's occupation, even though the various letters demonstrate that Council knew he was residing there (not to mention the inspection on 6 October 2020).

(c) Third, as already noted, a mesne profits claim is not a compensatory damages claim. It is no answer to the mesne profits claim that Mrs Irvine could not have rented the property out. Mesne profits is concerned with recovering the benefit to the trespasser from occupying unlawfully. Further, it could not be correct that the trespasser could keep the owner out of possession of a property unlawfully but claim no obligation to account for the benefit of living there because it was unlawful to live there.

[136] 17 November 2022 was a Thursday. I calculate Ms Paterson was in lawful possession (to the nearest week) for six weeks in 2022, 52 weeks in 2023, 2024 and 2025 and nine weeks to Thursday 26 February 2026, a total of 171 weeks. To be safe I call it 170 weeks. At $200 per week that gives a mesne profits entitlement of $34,200.

[137] Mrs Irvine asks for an order that that entitlement continues to accrue until possession is recovered. I cannot make that order. I can only assess the remedy for the cause of action as at the date of judgment. Obviously, it is likely a further mesne profits cause of action will begin to accrue at the same rate from delivery of judgment. But I cannot make a future order in respect of that cause of action.

[139] For the above reasons, I make the following orders:

(a) The defendant give possession to the plaintiff of the land situated at 451 Arborten Road, Glenwood and being described as Lot 480 on RP1583306 on Title Reference 15692030.

(b) The counterclaim is dismissed.

(c) The defendant pay the plaintiff $34,200.

[140] I will hear the parties as to costs and any other matters which arise from these orders.

[1] Family Law Act 1975 (Cth), ss 39B and 90RC(2); see the helpful exposition in CBX v QWJ [2024] QSC 5, [7]-[19] (Crowley J).

[3] This relationship put me in mind of the relationship of Catherine the Great and Grigory Potemkin after the end of their exclusive relationship (though I do not suggest any similarity in Mrs Irvine's personal life with that of Catherine's): see S. Sebag Montefiore Catherine the Great and Potemkin: The Imperial Love Affair (Weidenfeld & Nicholson 2016) at 183, who observed that despite the end of their love affair, their relationship "remained the most important thing in their lives".

[8] February 2026 affidavit, [70], [71], [88]-[92].

[9] As a result of some quick work to locate the witnesses by Ms Paterson's McKenzie's friend, who indicated they could be available for cross-examination. The objection based on s 92(2) Evidence Act 1977 (Qld) was withdrawn.

[10] Again, that is not a finding of de facto status under s 32DA Acts Interpretation Act 1954 (Qld).

[11] Declarations of Roulston, Bayliss and Ironside fall into this category.

[13] Affidavit of S. Paterson filed 16.09.2025, [37].

[14] See Affidavit of S. Paterson filed 16.09.2025, [37].

[15] Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, 674 (Latham CJ).

[19] February 2026 affidavit, Exhibit 68; I have not overlooked Mr Terry Irvine's evidence about this issue but his knowledge of events was via his brother and the explanation he was given might not have been complete, nor properly explained: TS2-67.

[20] Acts Interpretation Act 1954 (Qld), s 32DA(1).

[21] Succession Act 1981 (Qld), s 15.

[23] McKenzie v McKenzie [1970] 3 All ER 1034.

[24] See Sydney Local Health District v Macquarie International Health Clinic Pty Ltd [2020] NSWCA 274; (2020) 105 NSWLR 325, 346 [82].

[25] Mason, Carter & Tolhurst, Mason & Carter's Restitution Law in Australia (4th Edn), [1614], [1618]-[1620].

[26] Sydney Local Health District V Macquarie International Health Clinic Pty Ltd [2020] NSWCA 274; (2020) 105 NSWLR 325.