LRB v JET [2025] QDC 161

(a) The respondent provided the entire purchase price of $187,000;

(b) Prior to acquisition of the property, the applicant insisted she be included on the title, rather than the respondent's biological children;

(c) The applicant threatened that she would turn the respondent into the Police for his sexual offending unless she was included on the title, and this is why the respondent included her on the title.

• [7] The Answer admitted that the respondent paid the purchase price but denied that the interest was granted as the respondent alleged. The applicant alleged:

(a) The respondent offered to put the interest in her name as her inheritance and to help her start out in life and she accepted;

(b) The respondent never mentioned his children and the applicant was the person he referred to as his child;

(c) The applicant did not make any threat and would not have done so as she was afraid of what the respondent might do if she went to the Police.

• [8] Therefore, the real issue in the case is the circumstances which led to the respondent making the applicant a joint tenant of the property with him in January 2011.

• [9] Only the applicant and the respondent gave evidence. The applicant was a direct and precise witness in chief. She dealt with questions without prevarication or exaggeration. The respondent's cross examination was not particularly searching or effective, though he did identify some relevant topics. However, the applicant was equally crisp in cross examination. The only point upon which she might have been in error was in relation to some iron sheeting, though that error appeared to relate more to misunderstanding the question, as she freely volunteered evidence which clarified the position later. Perhaps more important, however was that her account of how she came to be a joint owner was more persuasive on the whole of the evidence as explained from paragraph [39] below.
• [10] The respondent submitted that there was evidence in her police statements that harmed her credit. He put to her that she had said she "literally did try to kill him". She denied trying to kill him and did not recall making the statement. The matter seemed to me to go solely to credit, and her answer was to a collateral question. I have considered that evidence, but it does not persuade me her evidence was not credible or reliable. Apart from anything else, one could well understand her making such emotive statements given the offences committed against her. Further, the respondent's submission that the applicant is a liar is weakened considerably by his own sworn statements which accuse her of dishonesty and abuse of his trust despite his conviction of the offences against her, as he did in his 2020 statutory declaration.[1]
• [11] I accept her as a credible and reliable witness.
• [12] The respondent made several very significant concessions in his evidence. He admitted to the offending against the applicant. He gave evidence of a number of matters which assisted the applicant's case, including in relation to his broader relationship with her and his installation of cameras in her room. In some respects, he was trying to tell the truth. However, his recollection of events was often very imprecise, and I did not think he generally had a reliable memory for detail. For example, I think he was wrong on the timing of the discovery of the camera in the applicant's room and on the name of another girl he alleged was involved sexually with her father.
• [13] More significantly, on the circumstances of the applicant being made a joint tenant of the property, the respondent was hopelessly vague, and his version was inconsistent with other admissions he made and circumstances of the case. In my view, having observed his evidence, the real problem with his reliability arose from his persistent belief that the applicant had somehow wronged him by complaining to the Police. This emerged from his repugnant evidence about the offending being "legally, the wrong thing to do", and his follow up comment.[2] There was also his peculiar evidence about another instance of alleged father/daughter offending, the tenor and tone of which suggested disapproval of the complaint, not the offending.[3] There were other such indicators as well.[4]
• [14] I do not accept his evidence unless it is uncontentious, corroborated by other evidence or comprises an admission.
• [15] The applicant's mother died in 2023. She made an affidavit which I admitted under s. 92 Evidence Act 1977 (Qld). The respondent ultimately did not seem to press an application to exclude it under s. 98 Evidence Act, though he cavilled with some of the facts. I admitted the affidavit on the basis that in considering it I would keep firmly in mind that it had not been the subject of cross examination. The applicant gave evidence that she had never read the affidavit or discussed its contents. There was no challenge to that evidence, though I recognise that the point is not one a litigant in person would be likely alert to. The affidavit was neither emotive nor expansive. It tended to corroborate some key parts of the applicant's evidence. It is of some assistance in confirming my conclusions in the matter, though I could have reached them without regard to that affidavit, as I will explain.

• [16] It is convenient before turning to the facts to deal with the proof of the offences. It is part of the applicant's case that the respondent committed many very serious sexual offences against her over a period of more than four years. I am satisfied that those offences were committed. The offences were proved as follows.
• [17] The applicant sought to tender a Verdict and Judgment Record (VJR) issued by the registry of the District Court at Brisbane dated 27 May 2014 under the seal of the Court and the hand of a Registrar of the Court. That document was admissible to prove the fact of the convictions under s. 53 Evidence Act. The VJR does not of itself prove that the defendant involved was the respondent. Section 54 Evidence Act deals with how that matter may be proved. It was unnecessary to address those complexities because the respondent accepted that he was the named offender.
• [18] The result is that the VJR comprised evidence under s. 79(2) Evidence Act that the respondent was convicted of those offences. Additionally, pursuant to s. 79(3), in circumstances where the contrary was not proved, the VJR also proved that the respondent committed the acts and possessed the state of mind (if any) which at law constituted those offences.
• [19] In any event, the applicant gave evidence that he committed the offences against her and that was accepted by the respondent in his evidence.
• [20] The scale of the offending is appalling:

(a) According to the VJR particulars, the respondent commenced offending against the applicant in March 2006, when she was about 13 and a half years old and continued until September 2010, when she was 18 years old (the applicant said the offending began earlier than that, though I rely on the VJR);

(b) The offending included Maintaining an Unlawful relationship with a Child, 95 counts of Rape, 50 counts of Sexual Assault and numerous other offences including Indecent Treatment of a Child Under 16 and 4 counts of making Child Exploitation Material.

• [21] The respondent served 12 years in custody from November 2011 to November 2023, which appears to have been the full-time discharge date.

• [22] The respondent and the applicant's mother began living in a de facto relationship in about 2000, though it appears they were involved with each other for a couple of years prior to 2000. The applicant was about 8 years old at that time. The applicant perceived the respondent and her mother to be de facto partners over the whole period leading up to her complaint in November 2011. The respondent said that the relationship ceased to be intimate from about 2004, though the two continued to live together on an on-going domestic basis, sharing cooking, chores and so on. It matters little where the truth lies on the status from time to time of that relationship. It was undoubtedly true it appeared to be a de facto relationship to the applicant and to others outside the family.
• [23] At that time the respondent had four biological children. He had lost contact with them years earlier and they were seemingly older than the applicant. The respondent's efforts to re-establish contact on a couple of occasions over the period 2000 to 2011 failed. The respondent appears to have been an active worker in construction and similar fields but was injured in an accident, seemingly around 2000. He continued with various jobs after he recovered and remained in work.
• [24] The applicant had no contact with her biological father nor anyone else in a fathering role. She said that if asked, she would have said her parents were her mother and the respondent. The respondent conceded, somewhat reluctantly, that he understood the applicant saw him as her father. I accept that he was the father in her life from the age of about 5 years old.
• [25] In late 2010, the three were looking for a house to move in to from their existing home. The property was located. Each of the parties went to inspect it and both liked it. The contract was signed on 7 February 2011 and identified the applicant and respondent as purchasers and was signed by both. The contract settled and the transfer was registered with the parties as joint tenants. The respondent provided the purchase price of $187,000.
• [26] I put to one side the key issue and continue with the chronology.
• [27] The applicant, respondent and the applicant's mother moved in in about March 2011. They did not live together long. The applicant complained to the Police in about November 2011.
• [28] She said that occurred in the following way. She found video recording equipment in her bedroom. She took photographs of that equipment. She then sent photographs of the equipment to her sister for safekeeping because the respondent sometimes took her mobile phone. After discovering the equipment, she had decided she would run away from home. However, her sister extracted from her what had been going on and encouraged her to go to the Police, which she did. She said that it was never her intention to go to the Police because she was too scared of the applicant. She said she never threatened to go to the Police however, towards the end (referring to the discovery of the cameras in her room I infer) it had gotten too much, and that was what persuaded her to go to the Police.
• [29] While she did not specifically say when she discovered the cameras, it must have been after she moved into the property and it was almost certainly in the weeks leading up to her complaint to Police, probably in September or October of 2011. The respondent suggested this occurred over Christmas 2010/2011, but the applicant's version makes more sense of the uncontentious events, and I accept it.
• [30] The respondent went into custody after the complaint in November 2011. At that time, the applicant and her mother remained living in the property. The applicant lived with her mother for some years. Over that time, her mother paid the rates and utilities. The applicant said she did maintenance work. The respondent disputed this, but I accept the applicant's evidence. She did not suggest that renovations were done, but rather she took care of minor maintenance. This is consistent with the fact that she was still quite young at the time and that her mother was likely the main person responsible for the house. She also gave evidence that many of the white goods and other items wore out and were replaced by her.
• [31] The respondent never made a complaint regarding the matters currently before the court in the respondents Counterclaim either to the applicant or her mother after the applicant's complaint to Police. He said this was because he was not permitted access to her pending his trial and then when in custody, he was of the belief that "[a]nything I had to say to [the applicant] would've been taken as a threat, I'm guessing".[5] That is undoubtedly correct. However, the respondent was able to write and did write, many letters to the applicant's mother about financial demands for rent, for sale of some of his chattels and demanding payment of debts allegedly owed to him.
• [32] The respondent pleaded not guilty at trial and was convicted before Judge Devereaux of this Court (now Chief Judge Devereaux) on 23 May 2014. He was sentenced to 12 years imprisonment and served the full term.
• [33] Over the period of his incarceration, he made some demands for rent from the applicant's mother. This does not seem to be relevant to the issues in this case nor to any accounting between the co-owners. The applicant was entitled to live in the house as a joint tenant. Any obligation of her mother's was not her obligation. It is unnecessary to make findings about this aspect of the matter.
• [34] The applicant's mother lived in the house and paid rates and utilities until her death in June 2023. After that, the applicant paid the rates. The respondent was released in November 2023 and from about March 2024, he also began paying the rates. The rates account is now in credit by some $5,000.
• [35] The applicant was not living in the house on the respondent's release. The respondent returned to live there in about March 2024 and has lived there since. He advertised by a sign outside the house for a share tenant, "suit quiet female". One Korean female lived there for about three months and paid modest rent of $120 per week. Two other females left quickly, one after two weeks and one after two days.

• [36] I accept the applicant's version of events that led up to her being registered as a joint tenant of the property and reject the respondent's version. I find:

(a) The respondent offered to record the applicant on the title of the property to provide her with an inheritance from him and a start in life, the applicant did not make any such request;

(b) The respondent did not mention his biological children in connection with this transaction at all; and

(c) The applicant never made any threat of going to the Police about his offending to compel the respondent to include her on the title.

• [37] I make those findings for the following reasons.
• [38] First, for the reasons already given, I consider the applicant a reliable witness. There was nothing in her evidence or the trial record which made her account questionable. Further, it was confirmed in its essential element by her mother's affidavit. However, that affidavit was not necessary to resolve the factual disputes as I have.
• [39] Second, the applicant's version is more consistent with the relationships. The respondent saw the applicant as his daughter and clearly saw her as his closest relationship, even more so than her mother. His biological children played no part in his life nor were they ever likely to do so. It is natural that he would want to benefit the applicant in those circumstances, including in preference to her mother. On the other hand, the proposition that a young person in the position of the applicant would have the confidence to make the threat alleged is a difficult one to accept.
• [40] Third, while there is no evidence about advice from the solicitor about the form of the title, using a joint tenancy is an obvious co-ownership structure to provide for the property to be an inheritance for the applicant. It is an unlikely form of co-ownership to adopt if the rights were being conferred under duress. A tenancy in common would be a more likely solution, given its flexibility to limit the interest of a co-owner. Given that a solicitor was involved in the transfer, I think this tends to support the inference that the respondent gave the solicitor instructions consistent with the applicant's version.
• [41] Fourth, I accept the applicant's evidence that she did not intend to go to the Police until the video equipment incident. That incident provides a logical point at which she would make such a decision, coinciding as it did with her reaching 18 years old and also making a disclosure to her sister. It was also the kind of event which would understandably cause the applicant to decide she had had enough.
• [42] The respondent's evidence tends to support this version of events as well. He gave evidence about the discovery of the cameras and that the applicant was "cranky" about that.[6] That incident however, occurred in late 2011 not late 2010. That means that incident occurred well after acquisition of the property. So, the applicant's version is then consistent with her not intending to go to the Police in late 2010/early 2011 when she was included on the title.
• [43] This point alone is sufficient to reject the respondent's version.
• [44] Fifth, the respondent gave evidence about planning to make provision for the applicant in respect of another property also in Queensland. It is not necessary to make detailed findings about what occurred for that property. It is significant rather in that it reflects that the respondent saw the applicant as deserving of his financial support in exactly the manner the applicant says happened on this occasion.
• [45] Sixth, and not least, the respondent did not describe any particular conversation in which the applicant made the threat he alleged.[7] His evidence about the conversation was in terms of what would have happened, or when he thought it happened, or what else might have been said. What was missing was any evidence consistent with an actual recollection of the threat being made. That conclusion flows from the way the evidence was given as reflected in the text of the transcript.[8]
• [46] Seventh, the respondent's own evidence was to the effect that the applicant was very easy to get along with. That is an unencouraging basis to build this version of threats and intimidation by the applicant.
• [47] Eighth, while I accept that the respondent could not and should not have contacted the applicant after the complaint to the Police, I think it likely he would have complained in correspondence at the time to the applicant's mother if he believed in around 2011 that the applicant had obtained her interest in the property by threatening him with Police. He was not slow in complaining about other less fundamental financial issues in writing. Further, the respondent tendered a statutory declaration made in 2020 by him which contained a version of events in relation the applicant's title to the property. However, it was quite different to what was alleged in his pleading or anything which he said in evidence. It alleged that the applicant blackmailed him over a number of years and that there was an agreement she would not interfere with his property if he put her name on the title.[9]

• [48] The respondent's version is rejected, and the applicant's version is accepted. The counterclaim is dismissed.

• [49] Even if the respondent's version was accepted, his counterclaim would have been dismissed.
• [50] As Mr Shaw submitted in writing, the characterisation of the respondent's case in his counterclaim as the tort of intimidation or common law duress was misconceived and inadequately pleaded. Amongst the shortcomings were that equitable relief does not lie for the alleged tort and there is no contract which can be avoided for the purposes of the duress allegation. Other points could be made.
• [51] The case that is arguably open on the counterclaim is for equitable relief by way of resulting or constructive trust. For the constructive trust, the argument would be that the applicant obtained the conferral of a half interest in the land by unconscionable conduct. That unconscionable conduct involved her taking advantage of his vulnerability to a complaint to Police about his offences against her. That cause of action could sustain a conclusion that the applicant held the property on constructive trust for the respondent.
• [52] As to resulting trust, it could be argued that while the evidence disclosed that the respondent did intend to place a half interest in the property in the name of the applicant beneficially, that intention was not a free exercise of his will because his will was overborne by the effect of her threat. It seems to me that the doctrine of resulting trust can accommodate that circumstance as one which rebuts the presumption of advancement, at least in theory.[10]
• [53] Both analyses require an overly generous reading of the counterclaim. However, that can be put to one side. To my mind, the real issue is that the context of the threat alleged by the respondent debars relief. If the threat was made in relation to offences which had not occurred, then the circumstances would comprise exploitation of the fear the respondent would naturally have of being the subject of a false complaint. Equitable relief would arguably follow, whether by way of constructive or resulting trust (subject to the applicant's pleaded delay defence).
• [54] However, that is not this case. Even on the respondent's evidence, the threat would have been made in relation to offences which had occurred. In that case, the response of equity would have changed. The following matters of context are relevant:

(a) The applicant made the threat within 3 months of the end of the period of Maintaining recorded in the VJR, which period had continued for 3.5 years to her 18th birthday;

(b) She was 18 years and 3 months at the time of the threat;

(c) At the time of the threat the respondent had also committed numerous serious sexual offences against her;

(d) Those offences comprised an appalling breach of his obligations as carer and de facto father to the applicant; and

(e) By the transaction, the respondent expected to obtain protection from prosecution for grave sexual offences.

• [55] Equity would not assist the respondent in that context even if the threat had been made. The maxim of equity that those who come to equity must come with clean hands has been described in a leading text as follows (footnotes omitted):[11]

This is an equally important maxim, although the maxim itself can elicit misgivings. It has been said that '[t]o describe this phrase as a maxim or aphorism is overly generous: without a detailed understanding of the circumstances in which it operates, it is a colourful but imprecise label'. It means that when a plaintiff whose conduct has been improper in a transaction seeks relief in equity that relief will usually be refused. It is closely linked, both in origin and application, with the previous maxim. Like the previous maxim, it is an historical reflection of the fact that courts of equity began as courts of conscience. Many cases, such as the moneylending cases just discussed, would be considered as aptly under either rubric. Indeed, in Fitzroy v Gwillim, Lord Mansfield CJ confused the two, saying that in equity a plaintiff must 'come with clean hands according to the principle that those who seek equity must do equity'. By 'improper' is meant legal, not merely moral, impropriety. Impropriety, however, is not illegality. The defence of illegality is distinct from the defence of unclean hands. If the former exists, there is no need to rely on the latter.

• [56] It is not just any misconduct which attracts equity's attention of course. The impropriety must have the required nexus to the equity invoked. It has been explained in this way (footnotes omitted):[12]

For the defence of unclean hands to operate at all, the impropriety complained of 'must have an immediate and necessary relation to the equity sued for'. If the relationship to the cause of action relied on by the plaintiff is indirect, it is irrelevant. Mere general depravity is not enough. This emerges from Meyers v Casey. In that case the plaintiff, a member of the Victoria Racing Club, successfully sought an injunction restraining the club from expelling him from membership, which they were threatening to do on the ground that he attended a race meeting while being a disqualified person. He claimed an injunction on the ground that he was not given an adequate opportunity of defending himself against the charge brought against him. The misconduct in which he indulged which led to his disqualification was held by the High Court to be too remote to block his entitlement to relief. It is absolutely necessary for the courts to insist on this nexus between the misconduct and the relief for which the plaintiff sues. Otherwise almost no equitable relief could ever be granted as defendants excavate the remote misdeeds of plaintiffs. This necessity is particularly important in interlocutory applications.

• [57] In my view, the offending by the respondent meets this requirement for a sufficient nexus with the resulting or constructive trust the respondent could have invoked if he made out the alleged threat. At its simplest, he would have been inviting equity to come to assistance in circumstances where the unconscionability (in its broad sense) he relies upon would arise from his acts induced by a threat to expose him for grave sexual offences which he knew he had committed.
• [58] To the extent that the respondent could rely on common law duress (and the application of that doctrine would be awkward in this context), the common law would echo equity through the common law's concern to facilitate acts contrary to public policy. The analogy here would be with the common law's response to with contracts to promote immorality.[13] It is difficult to see how a public policy defence on that basis would not arise to a claim to rescind the transfer on the basis it was obtained by duress in the circumstances listed in [54] above.

• [59] The orders sought in the Further Amended Originating Application are mostly uncontentious and standard for the appointment of trustees for sale. Three issues remain:

(a) First, the time within which the respondent must give vacant possession;

(b) Second, the division of the net proceeds of sale; and

(c) Third, the costs orders which should be made and whether they should be paid directly from the respondent's share of the net proceeds.

• [60] As to the first matter, the respondent gave evidence of the steps he would need to take to deliver vacant possession. He has been in possession of the property for only 18 months. In that time, he has brought numerous chattels on site. He also raised the need to find alternative accommodation. The other issues he raised are not relevant. It is hard to have much sympathy for the respondent in this respect. The application for sale has been on foot for four years. Further, his evidence about time to vacate was based in my view on a wish to sell down the chattels which seems to be trading goods. Such goods can be stored elsewhere. Finding alternative accommodation might be a more challenging step. However, this process cannot be long delayed. I therefore order the respondent to give vacant possession of the property by 4.00pm on 15 January 2025.
• [61] As to the second matter, the ordinary position is that on severance of a joint tenancy of two joint tenants, they take equal interests as tenants in common.[14] The effect of the order for statutory sale is to convert that interest into an equivalent interest in the net proceeds. The net proceeds after deductions should be divided equally.
• [62] As to the third matter, I will hear the parties as to costs.

[1] Exh. 10 at the document marked Exhibit # 17.

[4] See also the evidence at TS1-88.39 and TS1-61.2 to .12.

[7] I endeavoured to assist him to do so on at least three occasions in his evidence in chief.

[9] Exh. 10 in the document marked Exhibit #17 in the statutory declaration.

[10] It seems to me that the presumption of advancement would arise in the particular facts of this case, notwithstanding Re Bulankoff [1986] 1 Qd R 366. The respondent was on my findings in loco parentis to the applicant: see Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353(at 363-364.

[11] Heydon, Leeming and Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (Lexis Nexis, 5th ed, 2015) at [3-090].

[13] Heydon, Heydon on Contract at [20.580].

[14] Edgeworth, Butt's Land Law (Lawbook Co, 7th ed, 2017) at [6.490].