SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2018] ACTSC 148

TRUSTS - resulting or constructive trust - where title to family home held between father and son as joint tenants - whether father and son jointly contributed to purchase price - whether family home treated as beneficially owned by parents - constructive trust found

EQUITY - equitable remedies - where title to family home held between father and son as joint tenants - whether joint tenancy severed - whether common intention that title held by son on trust for his parents - where legal title passed to son upon father's death - whether it would be unconscionable for son to retain proprietary interest - declaratory relief of a remedial constructive trust appropriate

Court Procedures Rules 2006 (ACT) rr 1732 and 1700

Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495

Anderson v McPherson (No 2) [2012] WASC 19

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137

Beatty v Guggenheim Exploration Co (1919) 225 NY 380

Calverley v Green [1984] HCA 81; (1984) 155 CLR 242

Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353

Brown v Brown (1993) 31 NSWLR 582

Corin v Patton (1989) 169 CLR 540

Cowcher v Cowcher [1972] 1 All ER 943

Currie v Hamilton [1984] 1 NSWLR 687

Dinsdale bht the Protective Commissioner v Arthur [2006] NSWSC 809

DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431

Drever v Drever [1936] ALR 446

Dunphy v Russell [2018] NSWSC 721

Hillman v Box as Executors of the Estate of Graeme William Box (No 4) [2014] ACTSC 107

Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41

Ingram v Ingram [1941] VicLawRp 20; [1941] VLR 95

Martin v Martin [1959] HCA 62; (1959) 110 CLR 297

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

Napier v Public Trustee (Western Australia) (1980) 32 ALR 153

Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280

Parsons v McBain [2001] FCA 376; 109 FCR 120

Ryan v Dries [2002] NSWCA 3

Ryan v Ryan [2012] NSWSC 636

Shepherd v Cartwright [1954] UKHL 2; [1955] AC 431

Shepherd v Doolan [2005] NSWSC 42

Tamer v Official Trustee in Bankruptcy [2016] NSWSC 680

Tjen v Bilic [2017] NSWSC 364

Weige v Cupton Pty Ltd [2012] NSWCA 414; 8 ASTLR 229

J D Heydon and M J Leeming, Jacob's Law of Trusts (LexisNexis Butterworths Australia, 8th ed, 2016)

1. On 15 October 2012, Frederick William McGrath died, leaving no will. His only two children, Robyn and Ross McGrath, are the plaintiff and the defendant in these proceedings respectively. They are the only beneficiaries of the estate following the grant of letters of administration on 1 March 2016. Given their shared surname, I will refer to the parties and the deceased by their first names for convenience, and without intending any disrespect.

2. Robyn is the administrator of the estate of her late father. It is uncontroversial that she has an obligation to get in the estate, but her difficulty has been whether, and to what extent, a property located in Latham in the Australian Capital Territory, is included as one of the assets of the estate.

3. Prior to his death, Frederick held the legal title (by way of Crown lease) to the Latham property as a joint tenant with his son, Ross. Upon Frederick's death, title has passed to Ross. This change in title was registered on 2 April 2013 and it appears the previously unencumbered property was then mortgaged by the defendant in June 2013.

4. The substantive relief sought by Robyn in these proceedings is a declaration that the joint tenancy was severed on 16 April 1999 (when the defendant bought a house in Higgins) and a further declaration that the Latham property is held on trust for her as administrator of her father's estate, either in its entirety or in such less equitable interest as is found by the Court.

5. If a declaration of trust is made in favour of the estate, in whatever equitable interest, Robyn then seeks to sell the asset so as to properly administer the estate along with consequential orders to give effect to the sale, including an order that the defendant provide vacant possession of the Latham property within 28 days of any orders being made.

6. The plaintiff brings her claim in equity, pursuant to s 26 of the Supreme Court Act 1933 (ACT).

7. Ross did not appear at the hearing and has taken no role in the proceedings. An order for substituted service was made by the Registrar on 9 October 2017. There is an affidavit before the Court proving that service has been carried out by the means provided in the orders. The documents have all been sent to the address of the property that is the subject of dispute in these proceedings. Ross was known to be living at the property with his father when his father passed away.

8. In addition, the solicitors for the plaintiff have taken steps to notify the defendant of the hearing date and time. The solicitor for the plaintiff gave evidence in the witness box testifying to the fact that he had been in discussions with the defendant prior to proceedings commencing, but it appears that once litigation in the Court became likely, the defendant ceased communicating. I am satisfied that the defendant is on notice of these proceedings and could have participated had he chosen to do so.

(a) Whether the joint tenancy was severed, and if so, on what date;

(b) Whether the property is held on trust for the estate, and if so in what proportion; and

(c) What is the appropriate discretionary relief.

10. These issues will be considered in turn below.

11. The plaintiff's affidavit evidence was that growing up, the family lived simply. The family started renting the Latham property in about 1980, when she was about ten years old.

12. Her father worked as a plant operator and her mother (referred to as Delma McGrath, although according to the plaintiff's aunt, they never married), undertook home duties and later became a cleaner.

13. Her older brother, the defendant, left school when he was about fifteen and a half to work in the same business in which his father worked. The business was owned by the deceased's brother-in-law. The plaintiff moved out of the Latham property when she was 17.

14. In 1986, she remembers her father saying to her words to the effect of, "We've bought the house". She remembers her parents being delighted. She came to know later that the landlord had sold the Latham property to her father and the defendant.

15. The evidence of the plaintiff's aunt, Ms Janice McCabe, who is currently 64 years old, was to the effect that she was in regular contact with her brother (the deceased) and in about 1985, remembers a number of conversations with her brother, during which he said words to the effect of, "Delma and I can buy the house, the landlord wants to sell," and "Ross is helping me to pay for the house_._" I accept the evidence although I find that such statements probably occurred in 1986. Notwithstanding such knowledge, Ms McCabe viewed the house as owned by her brother and Delma, as that was how they talked about the house.

16. The Memorandum of Transfer of Crown Lease was in evidence, dated 8 September 1986. It records the purchase price of $73,000. According to the affidavit evidence of the plaintiff's solicitor, it is now worth approximately $500,000.

17. The Memorandum of Transfer also records the deceased and the defendant holding title to the Latham property as joint tenants. Ms Mary Cahill, who was the conveyancing solicitor engaged by the defendant and his father on the purchase of the Latham property, gave evidence that it was her usual practice to advise purchasers of the difference between holding a title to a property as either joint tenants or tenants in common, but she cannot remember the purchase by the deceased and the defendant at all, and the file has long since been destroyed. She could only speculate as to why the father and son chose the joint tenancy arrangement.

18. At the time of the purchase of the Latham property, the defendant was 19 and working, although only recently. Robyn does not know whether Ross put any money towards the deposit for the purchase of the Latham property or if he paid any money towards the mortgage to Civic Advance Bank Limited that funded the purchase.

19. There were no documents as to the details of that mortgage in evidence. I have assumed that in all likelihood Ross would have been listed as a joint mortgagor, given that the title to the property was also in his name.

20. The circumstantial evidence as to what happened between 1986 and 1998 is relevant to the outcome of this case. The evidence of Ms McCabe is that Delma became employed within a few months of the purchase of the Latham property, and it was Delma and Ross who were "working very hard to pay off the house as soon as they could."

21. I accept that uncontested evidence, as it is plausible that two parents who had rented and then purchased the family home would take on the responsibility of meeting the mortgage commitments, regardless of whose name was on the title or the mortgage.

22. Had Ross paid any money towards the mortgage, it was open to him through these proceedings to seek to establish that fact. He may well have paid the equivalent of board over 1986 to 1989, given that Robyn was required to pay some board while she was living in the Latham property in 1986 and was employed at Coles. However, there is nothing to suggest that Ross contributed to repaying the mortgage over the years.

23. In 1989, Ross moved out of the Latham property. He commenced living with his then girlfriend and they had a child together. When that relationship soured after a couple of years, Ross moved back to the Latham property.

24. In late 1997 or early 1998, the plaintiff's parents paid out the mortgage on the Latham property (by reference to a discharge of mortgage registered on 22 January 1998). This was about the time the plaintiff's father retired.

25. In 1999, the defendant and his then wife (whom he had married in 1996) bought a house in Higgins for $105,000. The plaintiff deposes to her father giving Ross money for the deposit at the time. Although the basis of this belief is not specified, it is consistent with the recollection of Ms McCabe that Frederick said to her words to the following effect, "I went to the bank with Ross and they told me that if Ross did not pay the mortgage on his home, we could also take your home if you're the guarantor. ... I wasn't going to have anything to do with that."

26. I therefore accept that the deceased funded the deposit for the property in Higgins. The evidence establishes that Ross still owns the property in Higgins, which is mortgaged to Members Equity Bank Pty Limited.

28. Robyn's recollection is that in 2007, Ross had a falling out with his father, which lasted for about three years. She further deposes to what may be fairly described as a loving relationship with her father and generally, although not invariably, she was treated the same as her brother. Again, that is consistent with the evidence of Ms McCabe, who states that she has known both the plaintiff and defendant since their births and never knew either Frederick or Delma to treat either of them differently. Her observation was that the parents each had a close bond with their children.

29. In the absence of any assistance from her brother, the plaintiff and her legal representatives have attempted to provide as detailed a picture as they can muster of how the purchase of the Latham property came about and the subsequent conduct of Frederick and Ross in terms of repayments and how the asset was treated. She accepts the evidence is circumstantial and that she is asking the Court to draw a number of inferences in order to reach the ultimate conclusion for which she contends.

30. Due to the nature of the evidence, the overall findings as to the factual circumstances are somewhat impressionistic. However, as with Renoir's famed painting Luncheon of the Boating Party, the scene nevertheless clearly emerges. The Latham property was at all times the family home. Ross, as the eldest sibling earning money and therefore being a more attractive proposition for a lending institution, assisted his parents to finance the purchase of the family home when the opportunity arose, as his mother was not working at the time. However, the family (including extended family) regarded the Latham property as belonging to the parents, Frederick and Delma. That common intention is seen through the parents proceeding to jointly pay down the mortgage and once they had done so, assisting Ross by giving him money for a deposit on his own house.

31. A joint tenancy may be severed in three ways. The first way is by unilateral severance, with any one of the parties operating upon his (in this case) own share. The second way is by mutual agreement and the third way is by a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common: Corin v Patton (1989) 169 CLR 540 at 546-547, which was cited in Hillman v Box as Executors of the Estate of Graeme William Box (No 4) [2014] ACTSC 107 at [282].

32. The plaintiff apparently relied on the third of those methods, arguing that when the father paid for the deposit in relation to the property in Higgins, that was some form of repayment for any money paid by the defendant in respect of the Latham property. Further, the payment of that money should be inferred as the deceased and the defendant mutually treating the Latham property as constituting a tenancy in common from 1999.

33. I do not accept that submission. There is no evidence of a course of dealing to indicate that Ross and Frederick treated the Latham property as tenants in common, either from 1999 or at any time.

34. Significantly, that was not the evidence of Ms McCabe. The obvious inference from what the deceased told his sister at the time was that the son sought to use the equity he had in the recently unencumbered Latham property to fund the purchase of the property in Higgins, and rather than do that, which may well have required the father to become guarantor by reason of the fact that he was a joint tenant, the father chose to simply give him the money.

35. Nor does the defendant moving out of the Latham property and later moving into a house with his wife in Higgins suggest an intention to sever a joint tenancy as to the ownership of the asset. Ross must have moved back into the Latham property at some point after his marital relationship ended, because he was known to be living with his father when he died (that was the basis of the orders for substituted service).

36. It is rather a leap in logic to suggest that a father who helps his son (and his new wife) with a deposit in relation to one property intended that payment to have the consequence of severing a joint tenancy in relation to an entirely different property.

37. Notwithstanding that the defendant has entirely failed to put forward any evidence to contest the argument of the plaintiff, I am unable to be satisfied on the balance of probabilities that there was any conduct on the part of either the father or the defendant to establish that rather than their joint tenancy, they should be regarded as having been tenants in common of the Latham property by the time the deceased died.

38. The plaintiff argued first that a resulting trust had arisen in respect of the defendant's interest in the Latham property or alternatively, that a constructive trust arose over the entirety of the Latham property.

39. The four elements required for a trust to be created are an identified trustee; one or more beneficiaries (or a charitable purpose); trust property; and an equitable obligation that binds the trust property: Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 (Muschinski v Dodds) at 613-614; see also J D Heydon and M J Leeming, Jacob's Law of Trusts (LexisNexis Butterworths Australia, 8th ed, 2016) at [1-04].

Principles as to when a resulting trust arises

40. The starting position (or presumption) is that the beneficial ownership of real property is commensurate with the legal title: Currie v Hamilton [1984] 1 NSWLR 687 (Currie v Hamilton) at 690, per McLelland J.That prima facie position can be displaced by the presumption of a resulting trust arising from payment of the purchase price by someone else: Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 (Martin); Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 (Calverley v Green).

41. The presumption of a resulting trust was formulated in Calverley v Green at 266-267 as follows:

...where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.

42. Ward CJ in Eq described the presumption in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 (Amit Laundry) as follows:

[163] The presumption of a resulting trust is...a presumption as to a declaration of trust, premised on a presumed intention to create an equitable (beneficial) interest in the acquired property in someone other than, or in addition to, the person in whom legal title is vested. Once the primary fact giving rise to the presumption is established (for example, that one or more persons has or have provided part or all of the purchase price but the legal title has been vested in another), the burden falls on the party disputing the existence of a resulting trust ...to rebut the presumed fact on the balance of probabilities...Where that party fails to rebut the presumption, the court "upon consideration of all circumstances presumes there was a declaration [of trust] though the plain and direct proof thereof be not extant".

43. That presumption in turn may be rebutted by the presumption of advancement (discussed below), or by evidence: Martin; Calverley v Green. A helpful summary of these principles is also found in Dinsdale bht the Protective Commissioner v Arthur [2006] NSWSC 809 at [10]- [11], per Brereton J.

What constitutes a contribution to the purchase price

44. The 'purchase price' includes costs, fees and disbursements incidental to the acquisition of the property: Ryan v Dries [2002] NSWCA 3 at [52]- [53].

45. The moneys contributed to the 'purchase price' must bear the character of purchase moneys, and not be provided by way of a gift or a loan or some other commercial basis, such as a contractual obligation which is independent of the use to which the money might be put by the recipient: Calverley v Green at 246; Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280 at [28]-[30], cited in Tjen v Bilic [2017] NSWSC 364 at [70].

46. If the purchase price is funded in whole or in part by moneys raised on mortgage, the mortgage moneys are treated as a contribution by the person who is liable to repay them (unless the evidence establishes a contrary position). Where purchasers jointly borrow funds on mortgage loan, they are to be regarded as contributing the part of the purchase price so raised equally: Calverley v Green at 251 (Gibbs CJ), 257-258 (Mason and Brennan JJ), 267-268 (Deane J).

47. The resulting trust arises at the exact moment when the entire interest is vested in the transferee: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431 at 463-464.

Ways in which the presumption of a resulting trust may be rebutted

48. The first way the presumption of a resulting trust may be rebutted is by evidence to the contrary: Napier v Public Trustee (Western Australia) (1980) 32 ALR 153 at 158 (Aickin J, with whom Gibbs CJ, Mason, Murphy and Wilson JJ agreed).

49. However, it is a presumption which is not displaced by slight circumstances: Shepherd v Cartwright [1954] UKHL 2; [1955] AC 431 at 445; Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353 (Charles Marshall v Grimsley) at 365; Brown v Brown (1993) 31 NSWLR 582 at 596.

50. The burden of rebutting the presumption of a resulting trust falls upon the party seeking to rely on the legal title, or the party disputing the trust: Amit Laundry at [164] per Ward CJ in Eq, cited recently by Sackville AJA in Dunphy v Russell [2018] NSWSC 721 at [132].

51. Rebuttal of the presumption of resulting trust requires proof of a 'definite intention' not (in the words of Dixon J in Drever v Drever [1936] ALR 446 at 450) a 'nebulous intention': Weige v Cupton Pty Ltd [2012] NSWCA 414; 8 ASTLR 229 at [46] per Ward JA (as her Honour then was, and with whom Basten JA and Sackville AJA agreed).

52. In Anderson v McPherson (No 2) [2012] WASC 19, Edelman J noted, at [98], that the intention is an objective, manifest intention (not an unexpressed subjective intention). Again, such an objective intention is to be assessed at the time of the acquisition of the property: Ryan v Ryan [2012] NSWSC 636, per Ward J (as her Honour then was) at [75].

53. A court will not give effect to the presumption where this would be inconsistent with the true intention of the person upon whose presumed purpose it must depend. The presumption of a resulting trust cannot prevail over the actual intention of the party as established by evidence: Muschinski v Dodds at 612.

54. The second way a resulting trust will not arise is where the legal title vests in a person that the person providing the purchase moneys is under an obligation to support: Calverley v Green per Gibbs CJ at 247-248. This is described as the presumption of advancement, and an example is the case of a parent providing money to purchase a property in the name of a child.

55. However, where an adult child provides money to purchase a property in the name of a parent, the presumption of advancement will not operate to defeat the resulting trust that would otherwise arise on the principles set out above. In a case where there is no presumption of advancement, satisfactory affirmative proof of an intention to confer a beneficial interest supplies the place of the presumption: Russell v Scott [1936] HCA 34; (1936) 55 CLR 440 at 453 per Dixon and Evatt JJ.

Determining the extent of the beneficial interests

56. The extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created: Calverley v Green per Gibbs CJ at 252-253. Apart from admissions, the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase, or so immediately thereafter as to constitute a part of the transaction: Charles Marshall v Grimsley at 365.

57. The initial interests established are not changed by later contributions to the conservation or improvement of the property. Similarly, where a joint mortgage debt is subsequently repaid by one party alone, that does not then alter the original extent of the interests between the parties, although it might be relevant in determining accounts between the parties: Ingram v Ingram [1941] VicLawRp 20; [1941] VLR 95 at 102; Cowcher v Cowcher [1972] 1 All ER 943 at 959.

58. However, the evidence might establish a contrary position. Citing Currie v Hamilton at 691, in Shepherd v Doolan [2005] NSWSC 42 (Shepherd), White J (as his Honour then was), at [23]:

If the evidence establishes that it was the intention of the parties that their respective interests should be in accordance with something other than their contributions to the purchase price, such as their contributions to the purchase of the land and discharge of a mortgage, effect will be given to that intention so that although the trust will arise at the time of purchase, the quantum of their interests will fluctuate in accordance with that intention.

59. Shepherd was cited in Amit Laundry at [207]. See also Calverley v Green at 262-263.

60. There was no direct evidence of who paid the deposit or what the deposit amount was.

61. The plaintiff submitted that the Court should draw two inferences in this regard. First, the plaintiff argued that the deposit may be inferred to have been 10% of the purchase priced, or $7,300, based on the fact that such a deposit was an almost invariable standard in 1986 and it was only later that vendors began to accept a deposit of a lesser percentage, such as 5%. Although there was no evidence of what might constitute the regular practice in the ACT in the 1980s, a degree of life experience and common sense is part of judicial fact finding and I am prepared to infer from the evidence that this was a standard residential sale in Canberra at arm's length and that, on the balance of probabilities, the deposit was likely to have been 10%.

62. The second inference sought by the plaintiff as to who paid the deposit is a little more difficult. The plaintiff contended the Court should infer that Frederick paid almost the entirety of the purchase price, being the deposit and the balance of the funds. I have not drawn that inference because Frederick's contemporaneous statement to Ms McCabe was that "Ross is helping me to pay for the house". Ross at the time was in full time employment and it is reasonable to infer that somehow, Ross and Frederick scraped the deposit together between them. The same approach was taken by McDougall J in Fitchett v Bertram [2014] NSWSC 1462 when evidence as to payment of the deposit was also entirely lacking.

63. As to the remainder of the purchase price, funded by the loan secured by a mortgage, it is unlikely that a lending institution would have permitted Frederick and Ross to be named jointly on the title to the Latham property, yet for the liability under the mortgage to only be in the name of Frederick.

64. Consistent with Frederick's statement to his sister at the time, I consider that Ross did help Frederick to pay for the Latham property in two ways: first, by contributing some money towards the deposit; and secondly, by being jointly liable for repayments under the mortgage.

65. Recalling Shepherd, the evidence does not establish that at the outset, it was the intention of the parties that their respective interests in the Latham property should fluctuate depending upon their monetary contributions over time to the discharge of a mortgage.

66. Instead, applying the above principles, as Ross and Frederick jointly contributed the purchase moneys and as they were both named as joint tenants on the title, the evidence does not establish a resulting trust in favour of Frederick. Thus, the question of whether the presumption of advancement operates does not arise.

67. A constructive trust is typically remedial in nature, and is usually imposed by operation of law when it would be inequitable, by reference to established equitable principles, for a defendant to deny the obligations of trusteeship: Parsons v McBain [2001] FCA 376; 109 FCR 120 at [10], cited in Tamer v Official Trustee in Bankruptcy [2016] NSWSC 680 (Tamer) at [30].

68. It arises when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest. Equity steps in to construe the circumstances (by explaining or interpreting them) and in that way attaches legal consequences to those circumstances, which converts the title holder into a trustee: Beatty v Guggenheim Exploration Co (1919) 225 NY 380 at 386, applied in Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41 at 108; see also Jacob's Law of Trusts at [13-01].

69. Importantly however, in Muschinski v Dodds Deane J held (at 615-616) that there is no place in Australian law for the notion of a constructive trust imposed by law whenever justice and good conscience require it, stating that:

proprietary rights fall to be determined by principles of law, and not by some mix of judicial discretion, ... subjective views about which party "ought to win"... and "the formless void of individual moral opinion".

70. As summarised in Tamer by Sackar J at [30], a constructive trust differs from a resulting or implied trust. Actual intention is relevant, including whether the relevant participants had a common intention: Muschinski v Dodds at 590 (Gibbs CJ), 598 (Mason J), 611 (Deane J). However, the absence of an actual or presumed intention will not prevent a court from declaring a constructive trust if to do otherwise would preclude the retention or assertion of beneficial ownership or property to the extent that such retention or assertion would be contrary to equitable principle: Muschinski v Dodds at 614 per Deane J.

71. Tamer was a case where a property in a daughter's name was alleged to have been held beneficially on trust for her parents. Sackar J went on to state at [31]:

There is a wealth of case law to support the proposition that a constructive trust may be imposed upon a legal entitlement to property in order to prevent a person from asserting or exercising his or her legal right in respect of that property in circumstances where the particular assertion or exercise of would constitute unconscionable conduct.

72. His Honour cited Muschinski v Dodds at 620, and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at 147. Unconscionability is the benchmark criterion.

73. In the present case, the evidence (including the lack of any contest by Ross) is that Frederick spent ten years paying down a mortgage with the assistance of Delma, in the belief that they owned their own home once the mortgage was discharged. They then gave to their son a monetary contribution sufficient for a deposit to purchase a house. Frederick did this rather than become a guarantor for his son, because the bank had advised him that if his son defaulted, he might lose his home. That evidence supports the position that Frederick believed the Latham property was his home. In all the circumstances, I am persuaded that Ross' role on the title was at all times to facilitate the purchase of the family home by his parents, rather than to be a part owner in the asset.

74. The legal consequence of those circumstances so construed is that the beneficial interest during Frederick's life was entirely that of Frederick and Delma, and once she had died, of Frederick alone. Accordingly, it would be unconscionable for Ross to now assert that the asset was his, as opposed to that of the estate.

75. In light of this conclusion, it is appropriate to make a declaration for a remedial constructive trust with such consequential relief as is necessary.

76. The consequence will be that the Latham property will become the primary asset of the estate for distribution between the beneficiaries. However, as Ross and Robyn are the only beneficiaries on intestacy in equal shares, and as Ross has since encumbered the Latham property, it may be that, rather than transfer the Latham property into the name of Robyn as administrator of the estate, for the purpose of sale by auction, Ross would prefer to pay Robyn a sum of money that represents 50% of the market value of the property.

77. This would avoid the (precious) funds of the estate being expended on legal costs and the costs of sale, along with the potential inconvenience arising from the involvement of Members Equity Bank Pty Limited, which now holds a mortgage over the Latham property.

78. It follows that I am not satisfied at this stage that it is yet necessary to order that vacant possession of the Latham property be given within 28 days, or that Ross be required to list the Latham property for sale by public auction, orders which were among the relief sought by the plaintiff. The simpler course may be for the legal title to be transferred into the name of the administrator and for an order to be made that Ross do all things and execute all documents necessary to achieve that end.

79. The difficulty is that Ross has chosen not to participate in the proceedings to date. In light of these findings, it is plainly very much in his interest to do so and I consider it appropriate to give him one final opportunity to consider the Court's findings before making final orders giving effect to these reasons.

80. The plaintiff sought, and is entitled to, the costs of the proceedings on a solicitor and client basis, payable from the estate, pursuant to rr 1732 and 1700 of the Court Procedures Rules 2006 (ACT) save as to one matter, which warrants the Court ordering otherwise. After the plaintiff's legal representative had been notified that the matter had been listed for judgment, an email was sent to my chambers on 25 May 2018, attaching a document entitled 'Plaintiff's Additional Submission', signed by counsel for the plaintiff. The email was sent without the leave of the Court and accordingly, no consideration has been given to that document. The course taken was inappropriate and any costs incurred in the preparation of that document have therefore been unreasonably incurred. They will be excluded from any costs order ultimately made by the Court.

81. I direct the plaintiff to serve a copy of this judgment on the defendant and prepare short minutes of order to reflect these reasons.

I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam