Miller v Dudman [2002] WASC 99

1 HASLUCK J: The plaintiff and the defendant are the registered proprietors as joint tenants of an estate in fee simple of land known as 117 King Road, Bunbury ("the land"). The land in question was acquired in the course of a de facto relationship in which the parties lived together as man and wife for many years. Now that the relationship has ended the plaintiff, Susan Frances Miller, has applied to the Supreme Court for relief pursuant to certain provisions of the Property Law Act 1969 which allow for the partition or sale of jointly owned property.

2 The defendant, Peter James Dudman, says that the land was acquired with funds provided by him exclusively. Thus, a central issue in the case is whether the land is subject to a resulting trust in favour of the defendant.

Property Law Act

3 Part XIV of the Property Law Act deals with the partition of land and division of chattels. Section 126 of the Act provides that where in an action for partition the party interested to the extent of a half share or upwards in the subject land requests the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.

4 I note that the plaintiff's prayer for relief seeks an order that the land be partitioned. It follows that the threshold requirement of s 126 has been satisfied in that relief is sought in an action for partition. However, it is apparent from the statement of claim and from the way in which the case was presented at trial that the plaintiff essentially seeks an order that the land be sold by public auction free from encumbrances. She seeks also various orders and directions that will facilitate a sale and a subsequent distribution of the proceeds.

5 It appears from Martin-Smith v Woodhead [1990] WAR 62 that once a plaintiff establishes that he or she is interested in the land to the extent of one moiety, prima facie, he or she is entitled to a partition order. It was common ground at the hearing before me that the parties were registered as the proprietors of the land as joint tenants with the result that the plaintiff can be said to be interested in the land to the extent of one moiety.

6 The crucial issue in the case is whether the plaintiff's interest in the land is held on resulting trust for the defendant. If the defendant fails to establish the defence pleaded then grounds undoubtedly exist for a sale in lieu of partition to be ordered. The defendant has not otherwise pleaded any matters which would lead a court to refuse an order for sale in lieu of partition.

7 This brings me to the principles of law where one party is said to have provided the funds enabling the parties to purchase the property in question. The relevant principles are reflected in the reasoning of various members of the High Court in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242.

8 In that case a man and woman lived together for about 10 years as though they were husband and wife. At first they lived in a house owned by the man. However, when they later decided to move to another area the man had difficulty obtaining finance. This led to the property being purchased partly by using funds provided by the man and partly by funds raised on a mortgage under which the parties were jointly and severally liable. The parties were registered as proprietors of the relevant land as joint tenants but with the man being responsible for repayments under the mortgage.

9 The High Court held that the presumption that the parties held the legal estate in trust for themselves in shares proportionate to their contributions was not rebutted by the circumstances of the case. Murphy J was the author of a dissenting view in which he asserted that the legal title describing the parties as joint tenants reflected the interests of the parties and there were no circumstances displacing the entitlements flowing from the position depicted on the title.

10 Mason J and Brennan J observed at 255 that equity presumes a trust in favour of the person who contributes the whole of the purchase price when the property is conveyed into the joint names of himself and another though the strength of the presumption varies from case to case and may be confirmed, rebutted or qualified by evidence of his intention.

11 They went on to say that the presumption is displaced if the legal joint tenant who does not contribute any of the purchase price is the wife of the joint tenant who does. In that case the presumption is that she takes her legal interest as a gift, not in trust for her husband, and that the beneficial ownership goes with the legal title. However, the previously decided case of Napier v Public Trustee (WA) (1980) 32 ALR 153 was against a presumption of gift when a man buys property and places it in the name of himself and a woman with whom he is living, not his wife.

12 Mason and Brennan JJ said further in regard to the case before them that in conjunction with other facts, the very fact that the plaintiff had become a joint tenant at the defendant's direction or, at least, with his consent, may be a fact of some importance in deciding whether the defendant intended her to have a corresponding beneficial interest.

13 They affirmed, however, that in a case where a man and woman are cohabiting though unmarried, there is no presumption, either of equity or human experience, that they intend their relationship to have the same consequences upon their individual property rights as marriage has upon the property rights of spouses. An assumption that the parties to such an arrangement intend to maintain independent control of money and property and to retain a testamentary power to dispose of assets in which they have an interest is more likely to coincide with reality than an assumption of joint ownership.

14 Mason and Brennan JJ then said that when a common intention is in issue, it is not ordinarily to be found in an uncommunicated state of mind; it is to be inferred from what the parties do or say. The evidentiary material from which the Court might have drawn an inference in the case before the Court as to the intention of the parties included their acts and declarations before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction. Evidence of those acts and declarations were admissible either for or against the party who did the act or made the declaration, but any subsequent declarations were admissible only as admissions against interest. Shephard v Cartwright [1954] UKHL 2; [1955] AC 431 at 445; Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353 at 365.

15 The judgment of Gibbs CJ was consistent with these views. He observed at 251 that the presumption of a resulting trust may be rebutted by evidence of the actual intention of the purchaser at the time of the purchase. Where one person alone has provided the purchase money it is his or her intention alone that has to be ascertained. 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.

16 Deane J approved the notion at 269 that 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 immediately thereafter so as to constitute a part of the transaction. He noted, however, that the weight to be given to a presumption of a resulting trust in the resolution of what is essentially an issue of fact may vary in accordance with changing community attitudes and with the contemporary strength or weakness of the rationale of the rule embodying the presumption.

17 The High Court indicated in Russell v Scott [1936] HCA 34; (1936) 55 CLR 440 at 451 that the presumption of a resulting trust arising from payment of the purchase price does no more than call for proof of an intention to confer beneficial ownership. It is no more than a presumption and is rebuttable by evidence that the interest is a gift.

18 Before leaving this review of the decided cases, I note also from Carkeek v Tate-Jones [1971] VicRp 84; [1971] VR 691 that the onus is on the party seeking to displace the effect of the registered title to show that the beneficial interests in the land are held otherwise than on the joint tenancy that would in the ordinary course be inferred from the certificate of title to the land.

19 It was common ground at the trial that the plaintiff provided the entirety of the funds used to purchase the first of the two properties placed in the joint names of the parties. The decided cases are clear that in such circumstances a presumption of resulting trust arises. This presumption will be sufficient to displace the effect of the title being registered in the names of the parties as joint tenants. I am therefore of the view, when one turns to the crucial issue at the heart of the present case, that the burden of proof lies upon the plaintiff to satisfy the Court upon the balance of probabilities that the defendant intended to vest in the plaintiff a beneficial interest as to one half at the time the first of the two properties were purchased.

21 The plaintiff was born in 1952. She went to Esperance at the end of 1980 by which time she had two children from a prior relationship. She met the defendant in Esperance as a man who had recently separated from his wife. At that time the defendant was working as a farm hand in the district.

22 From about September 1981 the defendant stayed with the plaintiff at 6A Dean Street in Esperance. In due course the parties commenced living together in a de facto relationship as man and wife.

23 The defendant hurt his back in 1984 and was on compensation for a period. At about that time he sold his farm and, after dividing the proceeds with his wife as a property settlement, was left with about $125,000 in hand. He applied these funds to the purchase of a house at 40 Crossland Street in Esperance. Thereafter, the parties used these premises as a residential dwelling.

24 According to the plaintiff, the furniture the parties made use of when they moved into the premises belonged to her save for a queen sized bed, a microwave and sewing machine. The plaintiff acknowledges that the Crossland Street property was purchased by the defendant for $61,250 with such funds being provided by him exclusively. The money in question represented his share in his matrimonial settlement.

25 The contract of sale concerning the Crossland Street property consisted of a printed offer and acceptance form prepared by Lomax Realty with that firm being described as "agent for the vendor." The name of the purchaser, Peter James Dudman of 6A Dean Street, Esperance, appears in handwriting in the first few lines of the form. This and other details concerning the description of the property, the purchase price, manner of payment and settlement date were apparently filled in by the agent. The defendant's signature appears on the second page on that part of the form, where the printed word "Purchaser" is set out. Directly below the defendant's signature, opposite the printed word "Witness", appears the signature of a witness. The offer was made on 24 April 1984. Mr Dudman signed the form in two other places in order to appoint a settlement agent and to acknowledge receipt of certain documents.

26 According to the plaintiff, she and the defendant went together to look at the Crossland Street property but the defendant did all the negotiations and contacted the real estate agents and settlement agents. She could recall the real estate agent obtaining instructions from the defendant to apply for a first home owners grant, but with the agent being left to fill out the form. It subsequently transpired that the defendant was not eligible for a grant as he had owned a property in Tasmania previously. The grant moneys had to be returned at a later stage.

27 The plaintiff said that when they moved into the Crossland Street property she had the electricity account and telephone account - already in her name from Dean Street - transferred over to the new address. This meant that the accounts were presented in her name. She said that she managed the combined income and outgoings of the household while they were at the Crossland Street property because she was receiving an income whereas the defendant was getting a small part pension.

28 The plaintiff said also that she contributed to the making of certain improvements to the Crossland Street property such as construction of a brick garden bed, roofing for the patio and tiling of the bathroom. It depended on who went to get the materials as to who would pay for them. She said that she also purchased curtain material and dyed the carpet in the lounge. While they were living together in Esperance the defendant received an inheritance of about $2,500 from his mother's estate.

29 The plaintiff said that in 1988 she and the defendant decided to move to Bunbury. The plaintiff's parents lived in Bunbury but the main reason for the move was to accommodate the cycling aspirations of the plaintiff's son Matthew, who was a competitive cyclist. The defendant confirmed under cross examination that he was supportive of Matthew's cycling aspirations and used to drive him to Perth for competitions. He bought Mathew a track bike for $560 as a gift.

30 The plaintiff said in evidence that the defendant sold some shares in order to help finance the move to Bunbury. I note from an income tax return adduced in evidence by the defendant for the year ended 30 June 1986, that the defendant was apparently in receipt of a taxable income of $13,607 in that year and was the owner of some shares.

31 Arrangements were made for the sale of the Crossland Street property. The evidence before me included a printed offer and acceptance form prepared by Gellards Real Estate Agency in Esperance. Again, in the usual way, the name of the purchaser - in this case Robert John Parry - appears in handwriting at the top of the form and the usual particulars were then filled out by the agent. I notice that Mr Dudman signed the form as vendor in order to signify his acceptance of the offer. The signature of a witness appears directly beneath his signature. The form is dated 21 November 1988. I notice also that certain amendments to the handwritten particulars were initialled by Mr Dudman.

32 The plaintiff said in evidence that while they were looking for a house in Bunbury they stayed with her parents. They eventually found a house they liked at 17 Argyle Avenue, Bunbury. The relevant documentation was prepared by an agent by the name of Martin Short who at that time was working for Status Reality. Mr Short gave evidence at the trial and I found him to be a straightforward witness who was able to describe his practice in regard to the completion of sale documentation. Not surprisingly, with the passage of time, he was somewhat less certain as to the precise details of the transaction concerning the Argyle Avenue property, being a transaction that had taken place 14 years ago.

33 Mr Short said in evidence at the trial that where a couple appeared to be buying the house he would ascertain that they were buying the house together before the offer and acceptance form was completed. He would then provide an explanation as to the nature of a joint tenancy. He had no reason to doubt that he followed his usual practice on this occasion and that the offer and acceptance form prepared by him and signed by the parties reflected the instructions he received from the prospective purchasers.

34 Mr Short confirmed in evidence that the relevant printed form was completed in his handwriting with the plaintiff and the defendant being described at the commencement of the form as those making the offer to purchase. The purchase price is described as $73,500 with settlement to be effected on or before 17 January 1989. One finds over the page, set opposite the printed word "Purchaser" the signatures of the plaintiff and the defendant with the plaintiff having in fact signed twice. Beneath those signatures opposite the word "Witness" appears the signature of Mr Short. The defendant signed the form in two other places to confirm the appointment of a solicitor or settlement agent and to acknowledge the receipt of certain forms. The form was signed by the parties to these proceedings on 9 December 1988, that is to say, two weeks or so after the defendant had signed a similar form as vendor in respect of the Crossland Street property in Esperance.

35 The plaintiff said in her evidence in chief that Mr Short brought the offer and acceptance form concerning the Argyle Avenue property to her parents' house in Bunbury. The agent sat with the plaintiff and the defendant at a table in the kitchen while the matter was discussed. The plaintiff's parents were in attendance. According to the plaintiff, Mr Short asked the defendant whether the parties were buying the house together and if so whether it would be as tenants in common or joint tenants. He then proceeded to explain the difference between these forms of co-ownership, pointing out that under a joint tenancy a surviving joint owner would automatically become the sole owner of the property.

36 The plaintiff said in evidence that in response to the agent's explanation the defendant asked whether this meant that the plaintiff would keep the property if anything were to happen to him. The agent confirmed that this was so. The defendant then told Mr Short to put the offer in both their names as joint tenants. Mr Short filled in the offer and acceptance form accordingly. The offer and acceptance was then signed by the defendant and the plaintiff as purchasers with Mr Short acting as witness. The initial deposit was $100 but the plaintiff could not recall how this was paid. She believed that the defendant paid the rest of the deposit, the stamp duty and settlement costs as these would have been paid by cheque out of his cheque account.

37 It was common ground at the trial that the plaintiff did not have cash reserves which would have enabled her to pay the full deposit or purchase price. I therefore have no difficulty in finding as a fact that the purchase price of $73,500 payable in respect of the Argyle Avenue property came from the proceeds of the sale of the Crossland Street property in Esperance and thus were provided by the defendant alone.

38 I pause to say that the plaintiff's evidence as to the signing of the offer and acceptance appears to be generally consistent with the way in which the offer and acceptance was filled in by Mr Short. The handwritten part of the form does not show any hesitation on Mr Short's part in describing the plaintiff and the defendant as the purchasers and the reference to tenants in common has been struck out.

39 I note also that the offer in respect of the Argyle Avenue property was expressly made subject to the purchaser's property at 40 Crossland Street, Esperance being settled by 16 January 1989. There is no evidence before me to suggest that Mr Short was aware that the defendant was the sole owner of that property and he may therefore simply have assumed that the address given by the parties as their residential address was a property registered in their joint names.

40 The defendant provided a different account in his evidence at trial as to the manner in which the offer and acceptance was signed. He seemed to accept that the document was signed in the kitchen of the plaintiff's parents' house as alleged. He could not recall anything being said about joint tenants and, in any event, doubted that he would have understood the nature of the explanation. The tenor of his evidence at trial concerning this and other similar occasions was that he had left school at an early age and could not read proficiently. When signing documents of a business kind he generally trusted whatever explanation was given to him and signed as requested without necessarily understanding the words on the page.

41 He said that he signed the offer and acceptance as the first person to sign the form upon the basis that he was the purchaser in his own right. The real estate agent pushed the document over to the plaintiff who then proceeded to sign the document. He (the defendant) thought she must have had to be a witness to his signature and thought nothing more of the incident. According to him, he understood that he was buying the property in his own name, as he had done previously at Esperance, and he did not give the estate agent any instruction to put the Argyle Avenue property in their names as joint tenants.

42 The defendant was not represented at the trial of the action and was not equipped to conduct an effective cross examination. In answer to his questions, the plaintiff did not qualify her account of what took place to any significant extent. However, upon careful reflection, Mr Short felt obliged to concede that he could not specifically recall being told by the defendant to draw up the offer upon the basis that the plaintiff and the defendant were to purchase as joint tenants.

43 Before leaving this aspect of the matter, I feel obliged to say that in my appraisal Mr Short was an honest witness and appeared to be careful in his methods. He was not the sort of man who would fill in a form if he were left with a feeling of unease as to whether there was a degree of doubt as to how the prospective purchasers wanted to carry into effect the relevant transaction.

44 It was necessary for a transfer of land to be executed by the parties in order to complete the acquisition of the Argyle Avenue property. The relevant transfer of land describes the transferees as "Peter James Dudman and Susan Frances Miller both of 40 Crossland Street, Esperance as joint tenants". The document is dated 6 January 1989 and was signed by the plaintiff and the defendant in the presence of Mr Short. The defendant was asked about this in the course of cross examination but adopted the stance again that he thought the plaintiff was signing simply as a witness.

45 There was no evidence before me to suggest that the defendant objected to or raised any doubt as to the effect of the various documents at the time they were being signed, notwithstanding that the documents themselves show clearly that the plaintiff was not signing simply as a witness but as a party taking an interest in the land.

46 The plaintiff said in evidence that the couple lived at the Argyle Avenue property with her two children. They did some improvements to the property including the construction of a patio and a double colour bond garage. She said that with the help of a friend Mr Vickery they both laid down a concrete driveway. The defendant painted the internal walls of the house and she purchased, made and installed curtains for the family room and all the bedrooms of the house. They both did gardening and attended to other household chores.

47 The plaintiff said in evidence that after a few years she and the defendant discussed selling the Argyle Avenue property and buying another property elsewhere in Bunbury. With the assistance of the estate agent Mr Short, they eventually identified a property as 117 King Road, Bunbury which was of interest to them. It seems that Mr Short was able to find a purchaser for the Argyle Avenue property.

48 A written offer concerning the King Road property was prepared by Mr Short on a form printed by Bunbury Land and Estate Agency. The form commenced by describing the purchaser as "Peter James Dudman and Susan Frances Miller" and went on, initially, to describe the proposed purchase price as "$95,000". The signatures of the plaintiff and the defendant appear mid-page on the second page of the form beneath the heading "Purchaser". The signature of Mr Short is set opposite the names of the prospective purchasers under the heading "Witness". The plaintiff and the defendant signed the form in two other places so as to effect the appointment of a solicitor or settlement agent and to acknowledge receipt of certain documents.

49 It seems that this offer was not acceptable to the vendor with the result that the offer was presented again, with the proposed price on this occasion being amended to $97,000. The initials of the plaintiff and the defendant appear on the first page of the form in relation to that amendment. The amended offer was accepted by the vendor and the transaction was carried into effect.

50 The relevant conveyancing document is a transfer of land dated 25 February 1993 which was signed by the plaintiff and defendant as transferees in the presence of a Mr L M Johnston of 18 College Road, Bunbury. The land was transferred into the names of the plaintiff and defendant as joint tenants. Simultaneously, a transaction for the sale of the Argyle Avenue property was carried into effect by a transfer of land of the same date signed by each of the parties as transferors. The plaintiff said in evidence that when it came to selling the Argyle Avenue property the defendant would refer to selling "our house".

51 At the trial of the action the defendant seemed to accept that by this time he was aware that the plaintiff was described as a joint owner of the Argyle Avenue property. An affidavit had been filed and served on his behalf sworn 19 March 2002 in which the defendant made this assertion concerning the period following acquisition of the Argyle Avenue property:

"Sue kept the knowledge from me for four years that her name was on the deeds. It only came to light when the King Road property was being purchased. Even then I did not know the significance of it. Only when she left and she told me that she would never remove her name as long as she lived from the deeds did a friend explain to me what it all meant, even then I had to be taken to a real estate agent to have it explained to me.

I am not stupid, but I am trusting, and due to my handicap of not being able to read and write or comprehend many things in our language, that trust is even more important and should not be abused.

I had never discussed with Sue the prospect of her being part owner in my house, she was not interested in saving as she stood to inherit money from her parents estate when they died."

52 The defendant was cross examined at some length about this affidavit. He said that he went to a friend in Bunbury, Sandra Deane, and told her the full story. She explained the nature of a joint tenancy and took him to an estate agent who gave him an explanation also. Sandra Deane provided him with some assistance in the preparation of his statement of defence which was then signed by the defendant personally. Under cross examination the defendant seemed to accept that what was in his statement of defence and in the affidavit was a reflection of the account he gave to Sandra Deane.

53 Under cross examination about the statement of defence and affidavit the defendant seemed to acknowledge that he was aware that the plaintiff was described as a joint owner at the time the King Road property was being acquired. He did not agree with such a description but did not do anything about it. He conceded that he did not seek to stop the King Road transaction proceeding upon the basis that they were joint owners. The tenor of his evidence was that it was too late to withdraw from the transaction and he was left with no option but to proceed.

54 There appeared to be no suggestion in the defendant's evidence or in the way in which he conducted his cross examination of the plaintiff that he made any protest at the time of the King Road property transaction or thereafter. His evidence was to the effect that he did not really understand the situation and the significance of the matter was not explained to him until after he and the plaintiff had parted company.

55 The plaintiff said that she and the defendant undertook improvements to the King Road property including recarpeting certain rooms, painting the brickwork in the back room and bathroom, knocking down the old barbeque, painting certain parts of the patio and erecting a carport to the side of the shed. The plaintiff said that they were both involved in these activities and as with the previous properties they both did the gardening.

56 The plaintiff went on to say that during the period that she and the defendant were together from 1982 to February 2000 she generally paid the electricity and other household utility expenses. She also generally purchased and paid for the food shopping. The rates were paid on some occasions from her own funds and sometimes jointly. She acknowledged that the parties kept separate accounts in that the defendant had a cheque book account and she used a credit card. She would often fill out the cheques for the defendant to sign but, on her evidence, the defendant was capable of writing his own cheques and sometimes did so. The defendant acknowledged under cross examination that he was aware of the importance of signing business documents and knew that if a cheque were signed the funds in question would be drawn from his account.

57 The plaintiff said that during the entire 18 years of the relationship she did all the household chores such as cleaning, washing and ironing of clothes, cooking meals and washing the dishes. She conceded that the defendant did some cooking and household chores and he affirmed in his evidence that this was the case. She said that from the beginning of the relationship the defendant treated her children as if they were his own, and treated them well. The plaintiff's daughter Natelle gave evidence and affirmed that the defendant acted as a step-father to her brother and herself.

58 The plaintiff said in evidence that she and the defendant once discussed marriage. It was while the parties were still living in Esperance. The stance of the defendant was that marriage was just a bit of paper that would not add to the relationship and that what the parties had was the same as marriage. The plaintiff said that the relationship was strong and of mutual satisfaction to both parties during the time they were together but the relationship started to become strained in 1998. It did not emerge clearly from the evidence as to what exactly was the cause of the break down.

59 It was common ground at the trial that in February 2000 the plaintiff moved out of the King Road property and shifted into a rental unit. She later bought a house with some financial assistance from her family circle. In due course, the plaintiff's friend, Susan Elizabeth Miller, moved into the house in question with her daughter and is presently contributing equally to the rent and household expenses.

60 The plaintiff said in evidence that during the de facto relationship she attended to most of the paperwork and forms that had to be filled in. She said that she would always discuss the nature of the paperwork with the defendant. She explained what was in issue when it was necessary for him to sign something that she had written or filled out for him. According to the plaintiff, the defendant had a flexi card which he obtained at some stage after the move to Bunbury which he used at ATMs and for Eftpos transactions. She said that he could read well enough to read newspapers, his mail, cycling programmes, jokes printed off the computer which a few friends would bring around, and was able to find items in the 'For Sale' section of the newspaper.

61 The plaintiff said that the defendant has had reading glasses since about six years ago. I noticed that when the defendant was giving evidence he made use of his glasses while examining the conveyancing and other documents that were presented to him in the course of cross examination.

62 As I have already noted, the defendant affirmed in the course of his evidence that he could not read proficiently. He and a number of other witnesses were cross examined about that issue. The plaintiff's daughter, Natelle Miller, was of the view from her observation that he could read newspapers because she had seen him refer to and discuss items of interest from the sporting pages.

63 The defendant's daughter, Charissa Robbins, gave evidence to the effect that the defendant could not read proficiently. She referred also to certain events after his relationship with the plaintiff had broken down. When she went to Bunbury she found that he did not know his pin number and she had to instruct him in the use of his ATM card in order to obtain money from the machine. She had to obtain the pin number from the plaintiff.

64 Under cross examination the defendant agreed that he could read his name and the name of the plaintiff. He agreed that he had signed his name on many occasions. He conceded that he had bought and sold properties a number of times and that when the moment came to sign the offer and acceptance concerning the Argyle Avenue property he knew that he was signing as purchaser and that a document of that kind was an important document. Nonetheless, he continued to maintain that in his belief the plaintiff on each occasion was simply signing the relevant documents as a witness.

65 The defendant denied that he could read newspapers in the manner suggested by the plaintiff and some of her witnesses. He denied that in the company of friends and family of the plaintiff he used to refer to the Argyle Avenue property and the King Road property as "our" home. As far as he was concerned, at all times during the relationship the respective properties belonged to him as had been the case with the Crossland Street property in Esperance. He was pressed strongly as to whether he was living in a de facto relationship and eventually, somewhat reluctantly, conceded that throughout most of the 18 year relationship he and the plaintiff had been living together as if they were man and wife. He asserted on a number of occasions, however, that the essential feature of a de facto relationship was that one took out of the relationship any property that had been brought in.

67 The plaintiff's statement of claim sets out the history of the matter and contains an assertion that the plaintiff and the defendant are the registered proprietors of an estate in fee simple in the King Road property. The plaintiff says that the parties lived in a de facto relationship from about 1982 until they separated on or about 8 February 2000. Since the separation date, the defendant has continued to reside on the land as his principal residence and continues to do so to the exclusion of the plaintiff. The plaintiff claims to be interested to the extent of a half share in the land.

68 By her prayer for relief the plaintiff seeks an order that the land be partitioned pursuant to s 126 of the Property Law Act or, alternatively, orders for sale pursuant to that provision.

69 The defendant in his defence and counterclaim refers to the sale of a farming property at Esperance as a consequence of which in or about June 1984 he was able to purchase the Crossland Street property for $61,250 out of the farm proceeds. He refers to the transactions concerning the Argyle Avenue and King Road properties and asserts in par 2.6 of the pleading that the plaintiff made no financial contribution to the purchase of the Argyle Avenue property. The defendant says that he has carried out all repairs and improvements to that property and has paid all service costs and expenses including all outgoings such as rates and insurance.

70 The defendant pleads in par 2.8 that the defendant and the plaintiff jointly held the Argyle Avenue property on trust for the defendant. It is said that the parties jointly purchased the King Road property for the sum of $97,000 which was paid wholly out of the Argyle proceedings and that the plaintiff made no financial contribution to the purchase of the King Road property. The defendant asserts that he has carried out all repairs and improvements to the King Road property and has paid all service costs and expenses relating to the same.

71 It is pleaded in par 2.14 that at all times the defendant and plaintiff have jointly held the King Road property on trust for the defendant but that despite demand the plaintiff refuses and continues to refuse to transfer the King Road property into the sole name of the defendant. I interpose to say that the case was fought at trial upon the basis, as I have already indicated, that the relevant circumstances are said to give rise to a resulting trust in favour of the defendant.

72 The defendant admits that the plaintiff and the defendant lived in a de facto relationship from about 1982. He denies the date of separation pleaded by the plaintiff and says that in or about 2 February 2000 the plaintiff voluntarily moved out of the King Road property. The defendant admits that he continues to reside at the property but denies that he continues to so reside to the exclusion of the plaintiff. The defendant denies that the plaintiff is entitled to the relief claimed or to any relief at all.

73 By way of counterclaim the defendant contends that the plaintiff is bound by the interest of the defendant in the King Road property and holds her interest in that property on behalf of the defendant pursuant to a resulting trust. It is said the plaintiff has failed or refused to hand over her interest in the King Road property to the defendant. The defendant therefore seeks a declaration that the parties hold their interest in the King Road property on trust for the defendant.

74 The defendant also seeks an order that the plaintiff transfer the property to the defendant or as he shall direct and that the plaintiff execute and deliver to the defendant a transfer of the property into the name of the defendant.

75 The plaintiff says by way of reply and defence to counterclaim that the defendant gifted a half interest in the Argyle Avenue property to the plaintiff by purchasing the property in the names of the parties as joint tenants in recognition of the plaintiff's contribution to their relationship as de facto husband and wife, and to the plaintiff's contribution of her labour and income to that relationship and to the maintenance and improvement of the Crossland Street property and expenses associated therewith.

76 The plaintiff says further that she contributed her labour and income to the maintenance and improvement of the Argyle Avenue property and expenses associated therewith. The plaintiff says that she contributed financially to the purchase of the King Road property, such contribution arising out of her share of the proceeds of the sale of the Argyle Avenue property used to purchase the King Road property. The plaintiff says further that she also contributed her labour and income to the maintenance and improvement of the properties and expenses associated therewith. The plaintiff denies that the defendant is entitled to the relief claimed by way of counterclaim or to any relief at all.

77 It is clear from the circumstances of the present case that the defendant provided the funds that led to the Argyle Avenue property being purchased and transferred into the names of the parties as joint tenants. He had used his share of the proceeds arising from the sale of his farm at Esperance in order to acquire the Crossland Street property. The proceeds from the sale of that property, which was registered in his name alone, were applied to the purchase of the Argyle Avenue property. It follows from my earlier review of the case law that in these circumstances a presumption arises that the Argyle Avenue property was held in trust by the parties for the defendant as the party who provided the purchase price.

78 In the absence of any discussion or agreement between the parties aimed at varying whatever arrangements were made at the time the Argyle Avenue property was purchased, one would have to conclude that if the Argyle Avenue property was held on a resulting trust, then a trust of this kind attached to the King Street property in a similar form, for it is apparent that the proceeds from the sale of the Argyle Avenue residence were later used to acquire the King Street property.

79 There is no evidence before me that any variation of the arrangements was discussed or negotiated and I would not be willing to accept that the plaintiff's contribution to renovations, maintenance and expenses of the household was sufficient of itself to effect a variation. Thus, the crucial question is to determine what was the effect of the events and discussions bearing upon the move to Bunbury in 1988 and the decision by the parties to purchase the Argyle Avenue property.

80 It is clear from the decided cases that the presumption of resulting trust can be rebutted in the circumstances of the present case by evidence of the actual intention of the defendant, Peter Dudman, at the time the Argyle Avenue property was purchased. It is his intention alone that has to be ascertained and the only evidence that is relevant and admissible comprises the acts and declarations of the parties at the time of the purchase, although subsequent declarations could have probative force and be admissible as admissions against interest. I proceed from the premise that the burden of proof lies upon the plaintiff in these proceedings to adduce sufficient evidence of the defendant's intention at the relevant time to rebut the presumption of resulting trust. The question is whether the defendant intended to confer a benefit upon the plaintiff in the form of a half share in the subject property to be held by her as a joint tenant.

81 When I turn to the evidence I must begin by taking account of the nature of the relationship between the parties. They had been living together as man and wife for a number of years at Esperance and the defendant by his statement of defence and counterclaim admits that they were living in a de facto relationship. A relationship of this kind does not have any direct significance in law as to the issue under notice but the defendant's admission denotes that the relationship between the parties was more than a casual relationship. It manifested a commitment by the parties to subordinate at least some of their personal wishes to the requirements of the relationship and the implications of living together. I have no difficulty in finding that the defendant's admission was corroborated by the evidence of various witnesses.

82 Quite clearly, at the time the parties moved to Bunbury there was a strong relationship between them based upon mutual trust. This is evident from the way in which they each contributed to the household expenses and the defendant's benevolent interest in the welfare of the plaintiff's children including his wish to advance the sporting career of the plaintiff's son by moving closer to Perth so that the son could participate in cycling competitions. A number of witnesses gave evidence verifying the strength of the relationship. The fact that the relationship ran on comfortably for many years after the Argyle Avenue property was acquired suggests that it was indeed a relationship based upon trust and a desire to share experiences and provide mutual support.

83 A finding to this effect as to the nature of the relationship at the time the Argyle Avenue property was acquired would not be sufficient of itself to establish that the defendant decided to confer a benefit upon the plaintiff, but the nature of the relationship is a material factor. It is consistent with the plaintiff's case that the defendant's decision to place or to allow the Argyle Avenue property to be placed in their joint names was a decision made of his own volition. It is true that the parties maintained separate bank accounts throughout the relationship but I am able to find that generally there was a sharing of household expenses and a joint contribution to the improvement and maintenance of the various houses they occupied.

84 I find on the evidence before me that they were not in the habit of referring to their funds or assets as their separate property.

85 It is against this background, which tends to be supportive of the plaintiff's case, that I must now turn to the particular circumstances surrounding the purchase of the Argyle Avenue property.

86 There was no disagreement about the property to be purchased or that it was to be used for the joint accommodation of the parties as an incident of their de facto relationship. I am satisfied that the relevant papers were drawn up by the estate agent, Mr Short, and were signed by the parties in the presence of the agent in the kitchen of the house belonging to the plaintiff's parents. I am satisfied that Mr Short had an understanding from what was said to him in the period leading up to the signing of the papers and upon the day in question that the parties wished to acquire the property jointly. The relevant offer and acceptance was prepared by him accordingly upon the basis that the parties would become owners as joint tenants.

87 I am satisfied further that Mr Short, pursuant to his usual practice, explained the nature of the joint tenancy before the offer and acceptance was signed by the defendant. I am satisfied that the defendant did not dissent or take issue with anything that was said or took place in his presence on that day and that the plaintiff and the defendant both signed the relevant form in each others presence in the position designated for signature by the purchasers.

88 It emerges from my review of the decided cases that it can be regarded as a fact of some importance that a party has allowed the subject property to be placed in joint names without discussion or dissent even though there has been no overt declaration of any intention to make a gift or confer a benefit upon the party not providing the funds. That is an important factor in the present case. I am conscious, however, that I must give special attention to the line taken by the defendant in his pleading and at the trial of the action that he could not read proficiently, would not have understood any explanation given to him, and in fact did not have a clear understanding of what was taking place in his presence. On his case, he believed the plaintiff was simply signing the offer and acceptance form as a witness.

89 I observed the defendant closely as he gave his evidence. It was significant that he was equipped with a pair of reading glasses and appeared to make use of them whenever a document was referred to him for comment. I am prepared to accept that he was a man of limited education and did not read proficiently. However, having regard to the evidence as a whole, including the evidence of various witnesses who had seen him reading the newspaper and other materials, I consider that he had some limited reading skills and was capable of reading names and signatures and simple words and phrases standing in isolation such as "offer and acceptance" or "transfer of land" or "purchaser" and "witness". He himself conceded that he was able to identify signatures on a page and could read the names of the parties.

90 I am also satisfied that he had a basic understanding of property transactions. By the time the Argyle Avenue property came to be purchased he was familiar with the process of papers being prepared to carry the transaction into effect and clearly appreciated that there was always an important moment in time when a key document had to be signed. He had been involved in this process on at least one or two occasions before the Argyle Avenue papers were signed. I therefore consider that when the papers were under discussion in the kitchen he was able to take an interest in what was going on and understand the essence of what was taking place in his presence.

91 While the defendant was giving evidence in the witness box it was apparent, as is sometimes the case with those who are conscious of their limited reading skills, that it was his habit to listen carefully to each question and to determine to what extent the question and answer were likely to be adverse to his interests. I am of the view that he was capable of understanding the explanation put before him by Mr Short and knew that the signatures to be placed upon the offer and acceptance would have an effect upon whether the property was placed in his name alone or in the joint names of the parties. I find as a fact that he did not outwardly voice or signify any disagreement with the process whereby the plaintiff and the defendant were to sign the form as purchasers as joint tenants.

92 The plaintiff's case was that the defendant is fact told the real estate agent to proceed upon the basis that they would purchase as joint tenants. Upon careful reflection, Mr Short was unable to recall so many years later, whether the defendant had actually instructed him in that manner. His inability to recall is not surprising given the passage of time. The plaintiff in her evidence affirms that such words were spoken but she, of course, being a party to these proceedings had a strong incentive to give evidence to that effect. On the other hand, I generally found her to be a straight-forward and honest witness and I am prepared to accept that as the relationship and the purchase of a new residence was of importance to her at that time, she was listening very carefully to what was taking place in her presence.

93 The defendant was clearly a man of taciturn disposition. It is consistent with his character and with the nature of the relationship between the parties as it was described to me by various witnesses that explicit declarations of a desire to benefit the plaintiff are unlikely to have been made. The defendant was somewhat argumentative in the witness box but this was probably due to being caught up in costly legal proceedings that he had not foreseen. Nonetheless, I formed a view that he was essentially a man of kindly disposition and this is borne out by the account of various witnesses, and by his own account, as to how he conducted himself throughout most of the relationship. Accordingly, it appears to be consistent with his kind and trusting nature that when the time came to purchase the Argyle Avenue property he was of the view, that the property to be acquired should be shared.

94 On the evidence before me, I am satisfied on the balance of probabilities, having regard to the plaintiffs account of what took place in the kitchen of her parents' home when the offer and acceptance was signed, and to the surrounding circumstances, that the defendant instructed the estate agent to place the property in the joint names of the parties. I conclude that it was the intention of the defendant to confer a benefit upon the plaintiff. He was agreeable to the papers being prepared and signed upon the basis that the Argyle Avenue property would be transferred into their names as joint tenants.

95 This view of the matter is confirmed by subsequent events. It is apparent from the evidence that prior to the move to the King Road property the defendant, even on his own case, was informed (or was reminded) that the property was in the joint names of the parties and that this position would continue in regard to the King Road property. He did not raise any specific objection to that state of affairs and no evidence was presented at the trial of the action that at that stage he took any steps to alter the situation.

96 The defendant's explanation was that he considered himself to be locked in or committed to the purchase of the King Road property and he therefore left the situation as it was. However, if he truly felt aggrieved that he had apparently been deprived of some part of his personal property, it is very surprising that he did not make any visible protest. Accordingly, I consider that these events, and especially his reference to the sale of "our house" at Argyle Avenue, amount to an admission against interest. I have taken account of this admission in weighing up the evidence and making a finding in favour of the plaintiff.

97 In summary, then, when the evidence is reviewed overall, I find that the actual intention of the defendant at the time the Argyle Avenue property was purchased was to confer a benefit upon the plaintiff by way of a half interest in the property to be held as a joint tenant. It follows from this finding that in my view, the plaintiff has been able to rebut the presumption of resulting trust. There is no other ground weighing against the grant of an order for sale in lieu of partition.

98 Accordingly, I allow the plaintiff's claim and will grant relief along the lines proposed. I dismiss the orders sought by the defendant in the counterclaim. I will hear from the parties as to the precise nature of the orders to be made.