Mouin Junior Dalati v Shereen Rifat Brown

Supreme Court of NSW|2020-02-07|Before: Kunc J

Summary

These proceedings are the result of the bitter breakdown in relations between the plaintiff, Mouin Junior ("MJ") Delati, and the defendant, Shereen Rifat Brown. Without any disrespect, I shall refer to the parties by their given names.
The dispute primarily concerns the ownership of two properties purchased in the name of Shereen only in February and October 2016, during the parties' relationship: 1. An apartment at Punchbowl (the "Punchbowl Property"); and 2. A house at Green Valley (the "Green Valley Property"). (together, the "Properties").
Relying on asserted financial transactions regarding, or contributions to, the Properties and the parties' alleged joint financial goals and intentions, MJ claims an equitable interest in the Properties on the basis of a resulting or, alternatively, constructive trust. He also seeks orders for the delivery up of $20,000 in cash and an engagement ring, both allegedly left at the Green Valley Property following the end of the parties' relationship.
The matter had been listed as a one day hearing before me on 7 February 2020. Mr A Moutsallem of Counsel appeared for MJ and Mr N Kirby of Counsel for Shereen. Because of the extensive cross-examination required, only the evidence was completed in the day allocated. The total amount claimed was less than $100,000. Properly bearing in mind the need to maintain proportionality of costs, the parties agreed that the matter should be completed by way of detailed written submissions. These were provided by Mr Moutasallem on behalf of MJ on 28 February 2020 and 13 April 2020 (in reply), and by Mr Kirby on behalf of Shereen on 25 March 2020.

Procedural history

It is convenient first to set out a brief procedural background.
MJ commenced proceedings by way of Statement of Claim filed in Court on 17 November 2017 before Rein J sitting in the Real Property List, seeking relief which included: "Properties 1 A declaration that the defendant holds [the Punchbowl Property] on trust for the plaintiff in the proportion that the plaintiff contributed to the purchase money for the Punchbowl Property, being such proportion as determined by the Court. 2 A declaration that the defendant holds [the Green Valley Property] on trust for the plaintiff in the proportion that the plaintiff contributed to the purchase money for the Green Valley Property, being such proportion as determined by the Court. Hair salon 3 An order that the defendant pay the plaintiff the sum of $13,000, being money paid to the defendant by the plaintiff, that was not returned to the plaintiff, in relation to the proposed purchase of a hair salon in Mascot which did not proceed. TAFE money 4 An order that the defendant pay the plaintiff the sum $5,000, being money paid by the plaintiff in relation to fees for a TAFE course to obtain a certificate 3 in hairdressing. Cash 5 An order that the defendant pay the plaintiff $20,000, being money left in the Green Valley Property by the plaintiff on or about 20 May 2017. Engagement Ring 6 An order that the defendant deliver up the engagement ring provided by the plaintiff to the defendant on or about 21 January 2016 (Engagement Ring). 7 In the alternative to the relief sought in paragraph 6, damages for loss and damage suffered by reason of the defendant's conversion of the Engagement Ring. Other Property 8 An order that the defendant deliver up the items referred to in paragraphs 49c.ii to 49c.vii of the statement of claim (Other Property). 9 In the alternative to the relief sought in paragraph 8, damages for loss and damage suffered by reason of the defendant's conversion of the Other Property. Family Law Act 1975 (Cth) 10 Further and/or in the alternative to the relief sought in paragraphs 1 to 9, pursuant to section 90SM of the Family Law Act 1975 (Cth), an order that the interests of the plaintiff and the defendant in the property of the plaintiff and defendant be altered in such fashion as the court considers just and equitable."
The "Other Property" referred to in paragraphs 49c.ii to 49c.vii of the Statement of Claim included: 1. MJ's black 2007 Subaru Liberty GT; 2. Building materials purchased by MJ for renovation work, including ceramic floor tiles and sliding doors and windows; 3. MJ's tools, including carpentry tools and boilermaking tools; and 4. MJ's personal effects, including fishing rods, golf clubs, motorbike helmets and clothing, appliances and furniture items.
Without any admission by Shereen, on 22 November 2017 Ward CJ in Equity, sitting as the Duty Judge, ordered that the operation of caveat number AMXXXXXX lodged by MJ in relation to his asserted beneficial interest in the Properties be extended until further order of the Court.
By Amended Statement of Claim ("ASOC") filed 15 December 2017, MJ abandoned the relief sought in relation to the "Hair salon" and "TAFE money" as set out in paragraph [8] above. Further, MJ amended the relief sought in relation to the Properties, now seeking a declaration that Shereen held both the Punchbowl Property and Green Valley Property: 1. On resulting trust as to the proportion MJ contributed to the cost of each Property's acquisition, compared to the cost of acquisition; and 2. Subject to an equitable charge securing MJ's right to contribution in respect of the mortgage repayments made in respect of each Property; and 3. Subject to a constructive trust securing Shereen's obligation to account to MJ for the value of renovation work undertaken there (Green Valley Property only); or 4. Alternatively, on a constructive trust to secure Shereen's obligation to repay MJ the amounts he expended towards the acquisition of each Property together with interest therein.
Following a failed mediation on 29 July 2019, the matter was set down for hearing before me on 7 February 2020. By the time of the hearing, it became apparent that MJ had further abandoned his claims in relation to "Other property" and "Family Law Act 1975 (Cth)", as set out in paragraph [8] above.
In order to contain the hearing to the one day it was set down for, Counsel for both parties approached the matter with a view to having all evidence heard on the day with no Browne v Dunn points taken by either party against the other.
The parties agreed that the matter would then be dealt with by written submissions only, unless the Court required the assistance of further oral submissions. No further hearing has been necessary.

The facts

It was accepted by both parties that this was a matter that turned heavily on its facts. It was unfortunate but indicative of the extent to which their relationship had broken down that there was little on which the parties agreed. As put by Mr Kirby, this was a case where it was quite clear that the coincidence of the parties' evidence was fairly slight.
Nevertheless, many basic matters could not be sensibly disputed, as will be apparent from what follows. Where any reference is made to findings on contentious matters, they are cross-referenced to that part of the judgment where reasons for the finding are given. To the extent that any other facts set out below were not agreed by the parties, I am satisfied that the evidence clearly establishes them.

Background to the parties

MJ was born in September 1990 and is currently 29 years of age. Shereen was born in May 1989 and is currently 31 years of age.
The relationship between the parties commenced sometime in or around late December 2015 and continued until around mid-May 2017, although marked by several periods of separation.
Within a few weeks of the commencement of their relationship in December 2015, MJ proposed to Shereen. Although the parties were in dispute as to the nature of this proposal, the Court accepts this was not a marriage proposal in what might be called the traditional sense. The proposal and engagement ring were a public statement of being in a relationship, but in light of all surrounding circumstances the Court is not satisfied that any promise to marry as traditionally recognised by the common law was made between the parties (see paragraphs [70] to [72] below).
On several occasions during their relationship MJ expressed his desire to be able to provide for Shereen and to protect her. There were periods of time during the parties' relationship when they lived together. However, the parties maintained separate finances and bank accounts, and were largely financially independent of each other (see paragraphs [73] to [78] below).
For reasons which will become apparent, it is convenient to note the bank accounts maintained by the parties during their relationship: 1. Shereen held two accounts with the Commonwealth Bank of Australia (a "Smart Access" transaction account and a linked "Saver" account), as well as two accounts with St George (a "Complete Freedom" transaction account, which was linked to a "Loan Account"). 2. MJ held two accounts with ANZ Bank, a personal "Access Advantage" account and a "Business Advantage" account (the latter being in the name "MJ All Trades"). MJ referred in cross-examination to having three bank accounts with ANZ, however the documents put in evidence do not identify a third account.

Purchase of the Punchbowl Property

In or around January 2016, the parties started discussing the purchase of an investment property. They attended a number of inspections together, including a property inspection at Oyster Bay. The Court accepts that it was MJ's intention to buy the Oyster Bay property for Shereen and himself to live in, however he was unable to arrange the finance.
Following the Oyster Bay inspection, the parties inspected the Punchbowl Property in February 2016.
MJ put Shereen in touch with a mortgage broker, Romeo Lozanoski, who facilitated a loan with St George Bank in her name that enabled her to purchase the Punchbowl Property.
In or around February 2016, Shereen signed a contract for the purchase of the Punchbowl Property in her name for $350,000. MJ was the witness at the signing and exchange of the contracts.
Prior to the settlement of the Punchbowl Property, on 7 March 2016 MJ deposited $12,500 into Shereen's "Smart Access" account (see paragraphs [33(1)] and [34] below). Shereen submitted (and the Court accepts) that these funds were a gift to Shereen for the purpose of purchasing a new car (which ultimately did not happen). Paragraph [80] below sets out my findings in relation to the characterisation of this payment.
Settlement of the Punchbowl Property occurred on 4 April 2016. Shortly after settlement, the property was rented out. The rental income was paid by the real estate agent into Shereen's "Complete Freedom" account and went towards meeting the mortgage repayments.

The Green Valley Property

In or around October 2016, Shereen started looking for a property to purchase as a residence, in contrast to the Punchbowl Property, which the Court accepts Shereen intended to be an investment property. The Court accepts that MJ provided Shereen with listings of potential properties, that the parties discussed these listings and that they inspected a number of properties together, including the Green Valley Property.
In or around October 2016 Shereen paid a deposit for the Green Valley Property, before signing and exchanging contracts for the purchase of the Property in her name for $665,000. There was no dispute that the deposit was paid by Shereen from her own funds.
To finance the purchase of the Property, Shereen used a finance broker from Smart Finance Group and took out a loan with Westpac in her name.
Settlement of the Green Valley Property occurred on 22 November 2016.
Between 22 November 2016 to sometime in or around early May when the parties' relationship broke down, MJ resided at the Green Valley Property. During this time, MJ undertook a number of renovations on the property. The Court accepts that the majority of this work was not undertaken at the request of Shereen, and that the work performed was to varying degrees of quality and success.

Cash deposits and financial contributions from MJ

The Court accepts that throughout the parties' relationship, MJ made several ATM cash deposits into Shereen's "Smart Access" account. These cash deposits were inconsistent in frequency and ranged in value from a few hundred dollars to several thousand. Save for the following examples (referred to by Mr Moutasallem as the "big ticket" items, a description which I adopt), it is not possible to identify each cash deposit that can be attributed to MJ: 1. On 7 March 2016, MJ deposited $12,500 in cash into Shereen's "Smart Access" account. The corresponding transaction notation was "1 gift mouin". 2. On 9 June 2016, MJ made two cash deposits totalling $21,000 into Shereen's "Smart Access" account. The corresponding transaction notation for the first deposit of $12,850 was "BIRTHDAY GIFT", and for the second deposit of $8,150 "IDM DISPUTE". During cross-examination by Mr Kirby, MJ gave evidence that the total $21,000 deposited was intended to be recorded as a "gift" (T51:42-52:37). 3. On 8 November 2016 MJ deposited $16,000 in cash into Shereen's "Smart Access" account. The corresponding transaction notation was "1 MJ gift".
I note MJ's contention that the transaction referred to in paragraph [33(1)] above was in fact $14,500, as a further $2,500 out of $4,000 in cash deposits made in the previous week should be treated as part of the same overall transaction. For the reasons set out in paragraph [62] and following below, the Court does not accept this evidence however, as will be apparent, nothing turns on this difference.
With respect to the cash deposit of $21,000 referred to in paragraph [33(2)] above, the parties accepted this was advanced by MJ for the purpose of purchasing a hair salon for Shereen. When the purchase of the salon did not go ahead, Shereen paid $8,000 back to MJ. The amount in dispute from the June 2016 deposit is therefore $13,000.
The Court further accepts that throughout the parties' relationship, MJ made a number of direct payments from his "Business Advantage" account to cover domestic incidental expenses (such as groceries and utilities bills) while the parties were living together, as well as infrequent rental contributions (such as while the parties were living together in a property at Holsworthy leased by Shereen). On 25 February and 19 May 2016, MJ also made two direct payments from his "Business Advantage" account totalling $3,494 towards a TAFE hairdressing course Shereen was enrolled in.
I pause here to note that it is not possible to ascertain the total number and purpose of each cash deposit referred to in paragraph [33] above. It is also not possible to quantify the payments for domestic incidental expenses asserted by MJ in the preceding paragraph. The reasons for the Court's findings in this respect are set out in paragraphs [79] to [82] below.

Breakdown in the parties' relationship and return of property

By 2017, the relationship was fraught, intermittent and marked by episodes of significant argument and hostility between the parties. In early May 2017 towards the end of the parties' relationship, MJ left the Green Valley Property and returned to his parents' house in Corrimal.
On or around 7 May 2017, Shereen sought to return property to MJ at Corrimal, including the engagement ring and a significant sum of cash. The parties disagree as to the value of cash (MJ contends $20,000, Shereen asserts $16,000), however the Court is of the view that nothing turns on this. For the reasons set out in paragraph [134] and following below, the Court finds that the engagement ring and cash were returned to MJ.
Following a brief reconciliation in early May 2017, the relationship finally ended in mid-May 2017.
In or around late September 2017 Shereen married her current husband, Mr Ben Brown. Shereen and Mr Brown continue to live at the Green Valley Property.

Findings as to credit

The case at bar involved two conflicting narratives on almost everything in issue. As is often the case in matters such as this, the proceedings expanded into an attack on the parties' respective integrity and credibility. Given the lack of formal or contemporaneous documentation on certain critical issues, the Court has had to consider the credit of both MJ and Shereen.

Legal principles as to credit

I considered the principles applicable to findings of credit in Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964 at [464] - [473] and more recently in Chetwynd v Rose [2020] NSWSC 111 at [154] - [163]. Those ten principles may be briefly summarised as follows.
First, at the forefront of the Court's approach has been the oft cited statement of McLelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318-319: "Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction (1995) 49 NSWLR 315 at 319 rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712."
Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56: "48. Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account: • the nature of the cause of action or defence; • the nature of the subject matter of the proceeding; and • the gravity of the matters alleged. When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."
Third, there is the statutory successor of the rule in Bringinshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in s 140 of the Evidence Act 1995 (NSW): "140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -- (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."
Fourth, evidence is to be preferred which is inherently probably in the circumstances or is given by a witness against their interest.
Fifth, evidence of independent witnesses, i.e. persons who have no reason to be partisan, may be decisive in resolving the conflicting evidence of interested parties.
Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness' evidence in its entirety. This approach was expressed by O'Loughlin J in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1: "118. Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions. … 121. A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected."
Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings: "155. There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. 156. Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]."
Eighth, disbelieving a witness that "X" was the case does not mean that "not X" has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 (citations inserted): "…The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd [1911] HCA 34, (1911) 13 CLR 230, at p 241 ; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p 21 . It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail [1905] HCA 25, (1906) 2 CLR 684, at p 698 ; Malzy v. Eichholz (1916) 2 KB 308, at p 321 ; Ex parte Bear; Re Jones [1945] NSWStRp 50, (1945) 46 SR (NSW) 126, at p 128 ), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King [1924] HCA 9, (1924) 34 CLR 153, at p 158; Tripodi v. The Queen [1961] CHA 22, (1961) 104 CLR 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell (1961) WAR 103, at p 109."
Ninth, the way evidence should be treated where that evidence is not the subject of cross-examination when cross-examination was required, was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619: "111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5]."
Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. The evidence in the case at bar has many similarities to the family dispute considered by Robb J in Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said: "187. The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations."

Submissions on MJ's credibility

Mr Kirby submitted for Shereen that MJ was a deeply unimpressive witness, incapable of making concessions and whose evidence was, in many important respects, inconsistent with the documentary record.
Mr Kirby contended that MJ was tactical in the way he presented aspects of his evidence to the Court. This attitude was apparent in the evidence MJ gave on the practice of burning sage, paying utility bills or making mortgage repayments (the last-mentioned MJ asserted would have been the same amount every month). Mr Kirby asserted that MJ's evidence on the payment of bills and mortgage repayments was unsubstantiated by copies of MJ's "Access Advantage" and "Business Advantage" ANZ bank account statements produced to the Court. Accordingly, Mr Kirby submitted that evidence given by MJ was "to stretch the Court's credulity beyond breaking point" (paragraph 32 of his written submissions).
Mr Kirby also referred to a number of occasions where MJ failed to make concessions where it was clearly appropriate. As an example, Mr Kirby drew attention to the following exchange during cross-examination of MJ on his asserted practice of making contributions to the Punchbowl Property mortgage by way of ATM cash deposits (T32:11-22): "Q. Which ATM? A. St George, sir, I believe. Q. Where? A. As in location of the ATM? Q. That's what "where" means, yes. Are you stalling, Mr Dalati? A. No, I'm not, sir. Q. Then answer the question. Where? A. I don't know where. I don't recall where the ATMs are. There's a million ATMs in this country, sir."
MJ later clarified that he recalled one occasion where he made a cash deposit at a St George ATM located at St Marys, "put[ting] two and two together" after remembering where Shereen worked and that he used to, albeit "very rarely", meet her for lunch.
In response, Mr Kirby submitted that the above exchange sees MJ "caught in a lie, playing for time", with the evidence providing a valuable insight into MJ's thought process, candour and, by extension, his credibility.
Mr Kirby further submitted that MJ found it impossible to make concessions (paragraph 56 of his written submissions) and that even when confronted with contemporaneous documents - for example, a text exchange between MJ and Shereen's mother - MJ was resolute in his belief that he had nothing to do with the text messages and denied being one of the parties to that exchange (T46:45-49). Although MJ later admitted the text exchange but maintained he had no recollection of it, Mr Kirby contended that MJ's evidence was "most implausible".

Submissions on Shereen's credibility

Mr Moutasallem submitted for MJ that it was Shereen who was the unreliable witness and whose evidence was not to be given any weight. MJ sought to portray Shereen as someone who had acted out of self-interest and was dishonest in now attempting to distance both herself from MJ and MJ from financial transactions regarding, or contributions to, the Properties.
In his written submissions (in chief and reply), Mr Moutsallem advanced a number of criticisms about the credibility and reliability of Shereen, including the following - 1. When being cross-examined in relation to a series of text messages between MJ and Shereen (see paragraph [92] below), Shereen refused to accept that the parties had joint financial goals. In that text message exchange, MJ alleges the parties were discussing buying a house together in the Shire one day. Particular emphasis was placed on a text message from MJ to Shereen that said "OMG, you are negative, be happy with what we have". Mr Moutasallem submitted that the only conclusion available from the context of the messages was that "we have" was a reference to the Properties, and that in refusing to accept this Shereen's response was both confusing and disingenuous (T100:35-47) - "[HIS HONOUR] Q. Do you think you had anything at the time that could have meant the description of what "we have"? A. I can explain. He used to use that a lot as in what we have because we found each other because of my history with my dad and he was like my earth angel. Q. So do you understand that to refer to your relationship with him? A. That's what I always took it as, I never questions (sic) it, but there were occasions where he would refer to the properties as both of ours and that's when fights started and he'd get really mad and I'd say, "No, it's not. You never contributed," and, yeah, he becomes really, you know, angry and stuff. So that's - there were times where I would completely disagree with him about that." 1. Shereen gave "strange evidence" about the nature of the engagement between the parties. Mr Moutasallem submitted that Shereen's differentiation between a marriage proposal and an engagement proposal (the latter only serving as an indication to other men that she was taken and they could not flirt with her), her acceptance of the engagement proposal and taking steps to buy a wedding dress whilst purportedly not seeing a future with MJ were further examples of her attempts to deny the fact the parties were in a committed relationship with future goals. 2. Shereen refused to concede that prior to purchasing the Punchbowl Property, MJ took steps to try to buy a property at Oyster Bay. Although conceding that MJ was interested in buying the Oyster Bay Property, Shereen did not accept it was for the both of them (T66:3-40): "Q. Now when you went to the Oyster Bay inspection the idea was to inspect it to see if you could buy it, is that right? A. Not me; if he could buy it. Q. For you? A. Not for me. Q. For both of you? A. Not for both of us. Q. But didn't he say something to your Mum along those lines that he wanted to buy that house for you? A. Yes. Q. So what I am asking you now is, now that you have answered that question, it's the case, isn't it, that at around the time you went to the Oyster Bay inspection with your Mum and MJ, there was talk between you and MJ about buying a house together? A. No. … Q. But you understood that somebody was interested in buying the Oyster Bay property when you went to the inspection, didn't you? A. Yes. Q. And you knew that person who was interested in buying the property was MJ? A. Yes. Q. And you knew that MJ was interested in buying that property because he wanted to buy the property for you both? A. For himself and then he wanted me to move in with him." 1. Shereen made a number of denials in cross-examination as a disingenuous attempt to distance MJ from the purchase of the Properties. For example, Shereen denied in cross-examination the proposition that it was MJ who found the Green Valley Property, this being inconsistent with contemporaneous text exchanges between the parties. Mr Moutasallem submitted that Shereen's evidence in relation to MJ's involvement in the selection of the Green Valley Property was also confusing, indicative that she was struggling to make appropriate concessions.

Conclusions on credit

It is clear that there were inconsistencies in the evidence of both MJ and Shereen. However, the impression the Court formed of Shereen was that she was generally the more reliable witness whose evidence was to be preferred over that of MJ, where that evidence was in conflict.
MJ's evidence was at times inconsistent with the contemporaneous documentary record, but also with previous evidence he himself had given. There were also occasions where I formed the view that MJ was being intentionally evasive, particularly on occasions where the facts were uncomfortable for him or did not support his version of events (see paragraphs [56] and [57] above).
In contrast, the oral evidence Shereen gave was consistent with her affidavit evidence and she answered all questions directly. Contrary to the submissions of Mr Moutasallem, Shereen did make a number of concessions that had the potential to be adverse to her case, including where new evidence made her question her previous testimony. For example, on the issue of who discovered the sale listing of the Green Valley Property (see paragraph [61(4)] above), upon being shown a text message from MJ to her with the advertisement for the Green Valley Property, Shereen did concede she could not recall who had first brought the property to her attention (T96:50-97:4). A further example was Shereen's acceptance in cross-examination that without funds advanced by MJ, she wouldn't have been able to purchase the Properties (T106:11-18). However, I understood her to be saying that money she received from MJ freed up her own funds to be applied to purchasing the Properties. I note for completeness that no concession was made as to the characterisation of those payments, which is addressed in paragraphs [79] and following below.
The cumulative effect of matters such as those in the preceding paragraphs and observing the parties in the witness box has led me to the conclusion that, where there is a conflict in the evidence, I will not accept MJ's evidence unless it accords with the probabilities, is against interest or is supported by contemporaneous documents.

Contentious matters

Before turning to the parties' submissions, it is convenient to set out my overall factual conclusions, in addition to the findings as to credit set out above. Despite the parties' evident disagreement in their recollection of their relationship and events the subject of these proceedings, by reference to the uncontested facts, available contemporaneous documents and what was inherently likely, the Court is satisfied, and certainly on the balance of probabilities, of what follows and finds accordingly.
The proceedings came to turn on the Court's resolution of one key contentious matter, being MJ's assertion that the parties were engaged in a joint endeavour, shared joint intentions or were otherwise working towards joint financial goals. A determination of this necessarily involves consideration of the following questions: 1. What was the nature of the parties' engagement? 2. Were the parties financially independent? 3. What is the proper characterisation of certain payments and cash deposits from MJ?
I shall deal with each of these in turn.
An additional, discrete issue that required the Court's consideration was whether Shereen had returned property to MJ at his parents' house in Corrimal, including the engagement ring and a significant sum of cash. That is dealt with in paragraph [134] and following below.

What was the nature of the parties' engagement?

Turning first to the parties' engagement, the Court accepts that in light of all surrounding circumstances, no promise to marry, as recognised by the common law, was made between the parties and that Shereen's evidence is to be preferred. In recognising that the distinction between a marriage proposal and an engagement proposal maintained by Shereen may be seen by some as unusual (see paragraphs [19] and [61(2)] above), the Court nevertheless accepts that was an accurate reflection of Shereen's state of mind and accepts her evidence to that effect.
The Court must take people as it finds them. At least in a first world liberal democracy such as Australia, there is now a great diversity in views and practices of how intimate personal relationships are conducted. In my view, the facts of each case must be considered without falling back by default on what might now be called, without disrespect, traditional views of love, engagement and marriage.
Further, even if the Court was to accept that at some point in time the parties had become engaged in the traditional sense of a promise to marry (as contended by MJ), I am satisfied that this commitment was short-lived and there was no lasting common intention between the parties as to their future marriage. In this context, I do not accept that the fact Shereen looked at wedding dresses is, in and of itself, determinative.

Were the parties financially independent?

The Court accepts that MJ made a number of contributions towards domestic incidental expenses, occasional rental payments and two instalments towards Shereen's TAFE hairdressing course (see paragraph [36] above). However, for the reasons set out in paragraphs [79] and following below, it is not possible to ascertain the purpose or quantum of each cash deposit or payment made by MJ.
It follows that MJ's evidence is not sufficient to persuade the Court that the parties had any real financial dependency on each other. In recognising that these examples are not exhaustive, it is persuasive that the parties did not pool resources, operate a shared bank account, rent properties in both their names or openly budget their finances together. The address on MJ's ANZ bank account statements remained his parents' Corrimal address through the period of the relationship until he moved into the Holsworthy property leased by Shereen in October 2016.
In contrast, the parties' financial independence is demonstrated clearly by the fact they maintained separate bank accounts for the duration of their relationship (see paragraph [21] above) and contemporaneous text exchanges disclosing Shereen's emphasis on building "my property portfolio" irrespective of her relationship status.
It is convenient to make some further observations on Shereen's financial circumstances. During cross-examination, Shereen's evidence was that she had around $20,000 - $30,000 in her "savings account" prior to purchasing the Punchbowl Property. For completeness, I note that bank accounts from Shereen's "Saver" account were not put in evidence. However, Shereen described her usual method of transferring money received into her "Smart Access" account into the linked "Saver" account, in order to budget (T76:46-77:4).
In the month from 7 March to 7 April 2016, Shereen credited around $25,500 into her "Smart Access" account, comprising salary and funds transferred from her "Saver" account. This amount is separate to the $12,500 cash deposit received from MJ on 7 March 2016. Even if the Court were to accept that cash deposits totalling $4,000 made on 29 February and 3 March 2016 were also from MJ (which it does not), the Court finds that Shereen was financially capable of covering the 5% deposit required for the Punchbowl Property from her own funds.
For completeness, the Court accepts Mr Moutasallem's submission that the $12,500 advanced by MJ was in fact used by Shereen toward the deposit required to settle on the Punchbowl Property. However, the Court finds this was a product of those funds being readily available in Shereen's "Smart Access" account, rather than needing to transfer them from her "Saver" account or that the advance from MJ was part of a joint endeavour to purchase the Punchbowl Property.

What is the proper characterisation of certain payments and cash deposits from MJ?

Although the Court accepts MJ advanced funds to Shereen by way of cash deposits or direct payments, there was no regularity in their frequency or amount. For example, MJ was shown an extract of Shereen's St George "Complete Freedom" bank account, between April to October 2016, where there were 5 cash deposits made in the course of 2 months, being $900, $600, $485, $500 and $120. When taken to this document in cross-examination, MJ was unable to recall which cash deposits were made by him for the purpose of covering the Punchbowl Property mortgage repayment shortfall, as he asserted he did (see T38:1-39:13).
I do not accept MJ's oral evidence that the three "big ticket" cash deposits set out at paragraph [33] above were only described as "gifts" on the insistence of the mortgage broker Mr Lozanoski so that the transactions were not questioned (see T52:4-8). Nor do I accept MJ's affidavit evidence that it was Shereen who suggested he should describe the deposits as gifts. Either version struck me as fanciful. No reason was offered why the transactions would be "questioned" or by whom or why any subterfuge was necessary. For reasons set out in the Court's findings on credibility above, this evidence was not persuasive and was inconsistent with what the Court accepts was a pattern of behaviour in which MJ sought to demonstrate his ability to be the "breadwinner" in the relationship and to provide for Shereen (as to which see paragraphs [113] and [122] below). The Court finds that MJ described them as gifts because that is exactly what they were.
The Court's difficulties in accepting MJ's characterisation of the payments were further compounded by the fact that MJ relied heavily on asserted ATM cash deposits and was unable to quantify the total value of payments he alleged were made towards domestic incidental expenses, rental payments or mortgage repayments. Those transactions MJ did point to were infrequent and inconsistent in nature, and it is this unpredictability that fortifies the Court in concluding there was no joint financial goal or objectives of the parties.
For the reasons set out in the preceding paragraphs, the Court finds that the cash deposits and direct payments made by MJ were gratuitous in nature, intended as gifts or otherwise made in furtherance of MJ's stated desire to provide for Shereen. The Court does not accept they were made pursuant to an agreement between the parties, or otherwise reflected a common intention that they shared joined financial goals.

The relief sought and legal principles

In relation to each of the Punchbowl Property and the Green Valley Property, MJ sought a declaration that Shereen held that property: 1. On resulting trust as to the proportion contributed by MJ to the cost of its acquisition in the name of Shereen compared to the cost of its acquisition; and 2. Subject to an equitable charge securing MJ's right to contribution in respect of the mortgage repayments made in respect of the Properties; and 3. Alternatively, on a constructive trust to secure Shereen's obligation to repay MJ the amounts expended by him towards the acquisition of the Properties together with interest thereon.
In relation to the Green Valley Property, MJ also sought a declaration that Shereen held that property subject to a constructive trust securing Shereen's obligation to account to MJ the renovation work he had undertaken. Mr Moutasallem said there was evidence to quantify this claim as $17,497.50.
There was no dispute between the parties as to the relevant legal principles. MJ's claim for a resulting trust was made on the basis of what was said to be his contribution to the purchase price for the Properties in circumstances where he was not included on the title as one of the registered proprietors. The claim in constructive trust depended upon what was said to be the common intention of the parties or because there had been a failed joint endeavour which would render it unconscionable for one of the parties now to insist on their strict legal rights.
The relevant legal principles pertaining to resulting, or alternatively constructive, trusts were not in doubt. I was referred to the summary of these principles set out by Ward J (as her Honour then was) in Australian Building & Technical Solutions Pty Ltd v Boumelham [2009] NSWSC 460; 2 ASTLR 336 at [45]-[53], [111]-[116], [119]-[121], [123], [124], [128]-[135].

Submissions on the ownership of the Punchbowl and Green Valley Properties

The crux of the dispute was the ownership of the Punchbowl and Green Valley Properties. The parties acknowledged that the case turned largely on the characterisation of three "big ticket" financial payments MJ allegedly made towards the purchase price of the Properties, as well as subsequent mortgage payments (Punchbowl Property) and renovation work (Green Valley Property). Put simply, were these contributions made towards a common intention or joint endeavour of the parties, or were they merely a gift with no expectation of it to be returned?

Submissions on behalf of MJ

MJ's case was that these contributions were made towards a common intention or joint endeavour of the parties, and as such a resulting, or alternatively constructive, trust arises over the Properties in his favour.
The financial transactions and contributions asserted by MJ in relation to the Properties totalled $64,497.50 and can be summarised as follows: Punchbowl Property Contribution to purchase price - paid prior to purchase $14,500 Mortgage payments $3,500 (being the shortfall between rental income and mortgage repayment amounts) Sub-total $18,000 Green Valley Property Contribution to purchase price - paid prior to purchase $13,000 (being the balance of $21,000 paid initially for purchase of a hair salon, less $8,000 repaid by Shereen) Contribution to purchase price - paid prior to settlement $16,000 Non-financial contributions by way of renovation work $17,497.50 (being the quantifiable portion of an initial claim valued at $50,000) Sub-total $46,497.50

MJ's case was that the total value of the cash deposit made towards the purchase of the Punchbowl Property was $14,500. However, as set out in paragraph [34] and consistent with the Court's findings on credibility at paragraph [65] above, the Court accepts only the amount of $12,500 could be sustained.
MJ contended that he and Shereen both contributed to the Properties, with the evidence clearly establishing that the parties had plans to marry one another, that they had joint financial objectives and were working towards those financial goals together. Evidence of this "joint endeavour, joint efforts, joint intentions, and joint financial goals" was said to be critical in properly characterising the payments made by MJ.
As advanced by Mr Moutasallem, a very powerful indication that MJ made significant contributions to both Properties was the parties' reference to one or both of the Properties throughout their relationship with words like "our" and "what we have". In support of this, MJ's case relied heavily on a series of text message exchanges between the parties on or around 15 March 2017. These included: 1. In one exchange when talking about a house, Shereen said "we won't have that house until we are like 50", to which MJ responds "what omg your negative | Be happy with what we have" (MJ submitting that "we have" being a reference to the Properties); 2. Both parties talking about moving back to the Shire, with MJ speaking of a future vision of Shereen and a daughter around the pool of a property purchased there; 3. MJ talking about working "stupid hours" to make money to purchase the type of house discussed in (1) above; 4. MJ referring to Shereen and himself jointly having to "make sacrifices to get what we want"; and 5. MJ saying "I know baby if we use equity we can buy it and rent out (sic) house out and garage and we will be laughing" (being a reference to the Green Valley Property, which had a garage).
Mr Moutasallem argued that the text messages made it quite clear that MJ and Shereen referred to the Properties "as properties that belong to them both". Further, it was advanced that at no point in the text exchange did Shereen correct or take issue with MJ referring to the properties as "ours".
In further contending that the parties shared a joint intention to purchase a house together, MJ pointed to evidence regarding the potential purchase of the Oyster Bay property (see paragraph [22] above). Although MJ was unsuccessful in obtaining finance to purchase the property, Mr Moutasallem submitted that this evidence was entirely consistent with MJ's later claim of contributing to the Punchbowl and Green Valley Properties. MJ pointed to contemporaneous text exchanges in evidence to demonstrate that he was instrumental to the purchase of both Properties and was involved "every step of the way" (see paragraph 40 of Mr Moutasallem's written submissions).
With respect to the contributions he allegedly made towards the Properties, MJ submitted there was no dispute that the "big ticket" cash deposits set out at paragraph [33] above were paid. Further, emphasis was placed on the timing of these cash deposits made by MJ. In relation to the Punchbowl Property, the $12,500 was deposited on 7 March 2016, after contracts were exchanged but prior to settlement on 4 April 2016. A cash deposit of $16,000 was made on 8 November 2016, prior to the settlement of the Green Valley Property on 22 November 2016. Mr Moutasallem submitted that the timing of MJ's deposits was far too much of a coincidence to be accepted by the Court as anything other than a contribution to each Property's respective purchase price.
MJ also pointed to the fact that by the time the Green Valley Property purchase settled, Shereen accepted she had no money left (T97:30-33) and her concession that she would not have been able to purchase the two Properties without the funds he advanced (T106:11-18, see paragraph [64] above). Mr Moutasallem put that it was an "inescapable conclusion" that the Green Valley Property was purchased using the joint funds of the parties that were pooled together.
Finally, brief reference was made in the written submissions to the renovation work allegedly undertaken by MJ at the Green Valley Property. Mr Moutasallem submitted that Shereen had accepted MJ assisted with renovations and that although she disputed the extent and quality of that work, no expert evidence was provided in response to challenge it.

Submissions on behalf of Shereen

Mr Kirby submitted that MJ's claims were without merit, were based on nothing more than brazen fabrication and should accordingly be dismissed. In discounting any notion that the parties were engaged in a joint endeavour or were working towards joint financial goals, Mr Kirby made five fundamental submissions.
First, he contended that the "big ticket" cash deposits were part of MJ's "modus operandi" during their relationship to be the breadwinner and to provide for Shereen. Evidence of this was demonstrated through MJ's claim he was to buy the Oyster Bay Property "for" Shereen, as well as other "grandiose" promises to buy her a new vehicle and a hairdressing salon. It was not disputed that MJ had also contributed towards Shereen's TAFE hairdressing course and that he had also paid for a number of her physio sessions.
Mr Kirby referred to the implausibility and internal inconsistencies concerning MJ's assertion that the mortgage broker had been the one to suggest the "gift" notation on the "big ticket" cash deposits. In so failing to provide an adequate explanation as to why each transaction was recorded as a gift, Mr Kirby submitted that the contemporaneous bank statements were fatal to MJ's claim.
Second, Mr Kirby referred to the apparent "maturity disparity" between the parties. Mr Kirby submitted that the evidence demonstrated Shereen displayed a sensible and mature attitude to her finances, maintained savings and a budget, made sacrifices and showed restraint in her spending. On the other hand, it was contended that MJ would have little or no money in his accounts and would often try to borrow money from Shereen. The inference to be drawn from this comparison was that there was no joint financial objective between the parties.
In support of the first and second submissions, Mr Kirby also drew attention to the contemporaneous documentary records. There is no doubt that text messages formed a large part of the parties' relationship and their arguments. Mr Kirby relied in particular on two exchanges, both of which were annexed to MJ's evidence.
The first exchange occurred on 14 October 2016, around the time Shereen exchanged on the Green Valley Property (emphases in original): "Shereen: My boss warned [illegible] offered to pay my commission upfront for that month to cover the rest of the amount i (sic) needed for the mortgage insurance. But you were the one begging me to give you a chance to pay that money so you can show me you want to be serious. Shereen: You wanted to drive to range rover that afternoon to BUY A RANGROVER EVOGUE! (sic) Shereen: For me! Because you wanted to spoil me. Even tho i (sic) warned you telling you its (sic) not a good business move. ANY OTHER GIRL WOULDNT DO THAT. THEY WOULDN'T (sic) GIVE UP A BRAND NEW CAR. THEY WOULD JUST TAKE IT. Shereen: And the thanks i (sic) get is you claiming that "i wouldnt (sic) be here if it wasnt (sic) for you" MJ: But it's a team effort babe Shereen: Are you kidding me? Shereen: I would be here and i (sic) will always succeed in life because i (sic) would ensure i (sic) cut my costs everywhere and live in a granny flat for years to build my property portfolio. Shereen: Because that was my goal with or without you. Shereen: You were the one that came along begging me to live in a house with you. I TOLD YOU I CANT (sic) AFFORD THAT BECAUSE IVE (sic) BEEN THERE ND (sic) DONE THAT. YOU WERE THE ONE THAT SAID IT WAS YOUR JOB TO PROVIDE AND PAY FOR RENT AND PAY FOR THE WEDDING AND OUR FIRST HOUSE. AND THAT ALL YOU NEEDED WAS APPARENTLY A CHANCE TO SHOW ME. MJ: What do you want me to say yeah your (sic) right Shereen: I'm mad at you for trying to claim my hard work. Shereen: I'm mad for letting you be a part of my hard work. MJ: I was only joking when I said look at the house I got you. Shereen: I had a [two] room granny flat in Cronulla ready for me to move in after my Kareela flat Shereen: I showed you the text msges (sic) and you got upset Shereen: But i (sic) live in shitty places because i (sic) [only] have [my] job and my pla[n] Shereen: I don't care where i (sic) sleep because its (sic) not important to me if people think im (sic) poor because i (sic) didn't care what people think of me. Shereen: And now you always try to say I wouldnt (sic) be here if it wasnt (sic) for you. Shereen: And I keep my mouth shut and let you get away with it because I let you pay the bills. But you never stopped to think and realise my living costs were only $280 a week when I was by myself."
Mr Kirby submitted that this exchange demonstrated several things. First, it demonstrated that Shereen was concerned with building her own property portfolio irrespective of her relationship status. Second, it was said to prove that MJ had lied when he said, in cross examination, that he did not want to buy Shereen a Range Rover. Third, it was said to demonstrate the disparity in the respective characters and maturity of the parties, being that Shereen was willing to work hard, make sacrifices and live frugally, whereas MJ was concerned with outward and ostentatious displays of wealth such as, as Mr Kirby put it, "buying his woman a luxury car".
The second text exchange drawn to attention by Mr Kirby was in relation to the $16,000 which MJ deposited in Shereen's "Smart Access" account marked as a "gift" prior to the settlement of the Green Valley Property. This exchange occurred on 8 November 2016: "Shereen: You didn't come home last night and you know my rule. MJ: Your mother kicked me out of the house. MJ: Your mother who is a guest in our house. Shereen: I just spoke to much (sic) she said she didn't, she just didn't want you to drive from Wollongong [late] at night. So dont (sic) try to blame it on someone else mj. MJ: I'm (sic) know what I heard. MJ: She said you shouldn't come over Shereen: I have a meeting. Ensure to have $16000 by 9:30am and i (sic) will text you my bank details. To deposit the money, this is what you wanted when you called me last night telling me you are still going to give me the money. MJ: I'm not doing shit untill (sic) you sort us out Shereen: So you changed your mind? MJ: Read my message MJ: I made up my mind when you wouldn't help me when I asked for help and before that your mother kicked me out Shereen: Ok MJ: So like I said fix this Shereen: No thanks Shereen: Goodbye MJ: Call me to tell me what bank you will be at MJ: Are you going to tell me? Shereen: To be clear you will not be going into my house as i (sic) have a written record from you stating that you dont (sic) want to take anything. Shereen: Do not attempt to call me from private again also. Are you clear? Shereen: I am serious. You need to understand it is over there is no going back I do not need your money and I will need the keys to be dropped off in the mailbox now MJ: Full name And (sic) BSB and account number Shereen: Name: shereen yousif Bsb XXXXXX. Account number XXXXXXXX. Shereen: XX XXXXXX Rd, Penrith NSW 2750 Shereen: Get your shit and get the fuck out of my house and my life. Shereen: Dont (sic) fucking call. MJ: Your (sic) missing the point."
Mr Kirby submitted that this exchange was completely irreconcilable with MJ's case that the payment of $16,000 was mutually intended to be a contribution to the purchase of the Green Valley Property. He submitted it was entirely consistent with Shereen's evidence that she was demanding the repayment of money owed to her.
Third, while admitting the "big ticket" cash deposits were in fact made by MJ, the context and purpose of each of them was very different to that described by MJ. Shereen's case was that MJ deposited these funds as "gifts" and for the following reasons: 1. The $12,500 deposited on 7 March 2016 was a down-payment on a new Range Rover MJ wished to purchase Shereen, as he was deeply suspicious of Shereen's boss having provided her with a car; 2. The $21,000 deposited on 9 June 2016 (of which $8,000 was paid back to MJ, see paragraph [35] above) was for the purpose of purchasing a hair salon for Shereen. MJ made the deposit after an argument the prior evening at TAFE, during which MJ threatened Shereen. MJ had not bought Shereen a present for her birthday the week prior, so MJ gave the money as a birthday gift and told her to put it towards a new car, a holiday or to use as she wanted. 3. The $16,000 deposited on 8 November 2016 was money which MJ owed Shereen and had undertaken to pay.
In line with her submissions on the assessment of MJ's credibility, it was Shereen's position that the Court should not favour MJ's evidence that these were made as contributions towards the purchase price of the Properties.
Fourth, in respect of the money allegedly spent by MJ in relation to the renovation work, Mr Kirby submitted that the evidence was hearsay and unsourced, but apparently created for the purpose of the current proceedings. As such, he contended that the evidence was inadmissible.
Finally, Mr Kirby contended at paragraph 105 of his written submissions that the "best and highest" MJ's evidence got were the text exchanges referred to in paragraph [92] above, however this was not evidence of a serious discussion. Rather, it was evidence of a couple daydreaming and the Court cannot draw the inferences from that evidence which MJ seeks.

Consideration and conclusions on the Punchbowl and Green Valley Properties

The financial records make it quite plain that MJ advanced funds to Shereen's bank account, although the exact quantum is unclear (as not all cash deposits asserted by MJ can in fact be attributed to him, see paragraph [79] and following above). Putting that issue to one side, the main factual contention became why did MJ pay these amounts? The parties correctly identified that this matter became solely a matter of characterisation of payments, and as such became inextricably linked to the Court's findings on the parties' credibility.
For the reasons set out in paragraph [70] and following above, the Court does not accept that during the parties' relationship, they were engaged in a joint endeavour or shared joint financial goals. I accept Mr Kirby's submissions set out in paragraphs [98] and following. For the reasons set out in paragraph [80] above, I regard the contemporaneous description by MJ of the "big ticket" cash deposits as gifts as decisive.
MJ spoke candidly about his desire to protect and provide for Shereen, and his "ideal image" of being the breadwinner of the relationship when the parties came to starting a family. This fortifies the Court in its conclusion that the funds and (in relation to the Green Valley Property) renovation work were gratuitous in nature with no expectation of anything in return.
Accordingly, Shereen's concession at T106:15-18 that without the money advanced by MJ she wouldn't have been able to purchase the Properties cannot be seen as fatal to her defence. MJ's case rests on the characterisation of those payments as being made in furtherance of a joint endeavour and financial goal of the parties to own the Properties. For the reasons set out above, that characterisation is not borne out.
A further reason why the Court has reached the conclusion which it has relates to the basic question of why a person claiming an interest in a property who has not been included on the title was in fact not included. This fundamental inquiry goes to the intention of the parties. In a case such as the present, MJ bears the onus of demonstrating facts that warrant the intervention of equity.
In many cases of this kind, a party who has not been included on the certificate of title will seek to demonstrate that they were deceived about the inclusion of their name on the title, or that for innocent reasons they were not included on the title, or that they did not understand the significance of not being included on the title. That is not this case. MJ knew at all times that he was not included as a registered proprietor of either Property. The difficulty for him in terms of persuading the Court that his and Shereen's intention was otherwise, is that the Court does not accept his explanations and, quite apart from the findings that I have made about his credibility, finds them inherently implausible.
In relation to the purchase of the Punchbowl Property, MJ's affidavit evidence was (emphasis in original): "17. I contacted my mortgage broker Romeo Lozanoski and he came out to Miranda property. Shereen and I discussed finance with Romeo and he said to me words to the effect of "You need two years of BAS statements to get MJ the loan". Romeo refers to me as "MJ". I then said to Romeo words to the effect of "I have not completed my BAS statements or tax return for the financial year." and Romeo said words to the effect of "You can't go on the loan and Shereen will need to apply." Romeo then said to Shereen words to the effect of "I'll need your group certificates and taxation returns for the last year, you will need around $32,000 for the deposit and fees and charges". 18. Shortly after speaking to Romeo, Shereen and I had a conversation to the following effect and: I said "We will need to put the property in your name." Shereen said "That's fine." I said "We also need the deposit money in your account so the income you earn should stay in your account so we can get the loan and make the repayments. I earn more than you so I'll pay for all our expenses." Shereen said "Okay, I have $30,000 in my bank account." I said "I haven't completed my BAS and taxation returns and I will owe the tax department, we will need to refinance down the track to pay my tax." Shereen said "That's the easiest way, we will have to pay that later.""
In her evidence, Shereen accepted that she and MJ had met Mr Lozanoski but otherwise denied MJ's version of events, in particular the conversation in paragraph 18 of MJ's affidavit. The Court does not accept MJ's version of events. That non-acceptance does not depend only on the view which I formed about MJ's credibility. I also rely on the inherent implausibility of his explanation, being a lack of paperwork and the immediate acquiescence in Mr Lozanoski's statement that he (MJ) could not be on the loan (and, implicitly, therefore on the title). This explanation strikes me as completely implausible in the face of MJ's oft repeated evidence that he wished to demonstrate his ability to benefit Shereen and be the provider for her.
The difficulty for MJ is even more acute in relation to his explanation as to why he was not included on the title of the Green Valley Property. MJ's affidavit evidence was of a conversation with the real estate agent (denied by Shereen) (emphasis in original): "45. Brad Mailing was the agent on the sale of the Green Valley property. Brad Mailing said to Shereen and I words to the effect of "Are you sure you don't want your name on the contract?". I said to Shereen "What do you think?" and she said "No, I am going to marry you and be with you forever"."
This explanation strikes me as even less convincing than his explanation in relation to the Punchbowl Property. It is again completely inconsistent with MJ's case of presenting himself as someone who was the breadwinner and provider for Shereen. There was no dispute between the parties that Shereen paid the deposit for the Green Valley Property from her own funds. In my respectful view the absence of any credible explanation as to why MJ was not included as a borrower (and then as registered proprietor) fortifies the Court in its conclusion that there was no joint endeavour or common intention of joint ownership of the Green Valley Property. Shereen's text of 8 November 2016 (see paragraph [105] above) makes that clear: "You need to understand it is over there is no going back…".
Mr Moutasallem submitted that even if the Court characterised the "big ticket" items as a gift, it was not fatal to MJ's claim for a constructive trust. I do not accept that submission. The finding that a payment is a gift will rebut the presumption of a resulting trust. However, to establish a constructive trust over a gift it is necessary to demonstrate that the gift was the product of unconscionable conduct or undue influence on the part of the donee over the donor: see, for example, McCulloch v Fern [2001] NSWSC 406 at [50], [63], [67]-[69]. Such claims were no part of MJ's case against Shereen.
Having regard to all of the evidence, and having observed the parties closely in the witness box, I am unable to reach a state of actual satisfaction on the balance of probabilities that MJ and Shereen ever had a common intention or engaged in a common endeavour in relation to the Properties, or anything else, of a sufficiently substantial or enduring nature as would engage equitable relief. I am satisfied that MJ gave Shereen money not pursuant to some common intention or endeavour but in an attempt to endear himself to her or to create some sense of indebtedness or dependence on her part by demonstrating his determination and ability to provide for her. His vision was very much that the man in a heterosexual relationship should be, and be seen to be, the breadwinner or provider.
I am equally satisfied that it suited Shereen, for her own reasons, to accept such munificence as MJ offered her, but again not pursuant to an enduring or substantial common intention or endeavour. In reaching these conclusions I accept that in the course of what has been referred to as their relationship, it is likely that in happier, romantic moments they did have some discussions about common plans for the future (what Mr Kirby referred to as "daydreaming"), but I am equally certain that those were fleeting, superficial and quickly dissipated in the rancour that came from the volatility of what was plainly an "on again, off again" relationship.
The Court finds that MJ does not have an interest in either the Punchbowl Property or the Green Valley Properties. His claim in relation to the Properties must fail.

Submissions on the remaining property

Following the end of the parties' relationship, MJ claims he left a number of personal items at the Green Valley Property. By the time of the hearing before me, only relief in relation to delivery up of cash (alleged by MJ to be $20,000) and an engagement ring was pursued by MJ.

Submissions on behalf of MJ

Limited submissions were put forward in support of MJ's claim for return of the cash and engagement ring allegedly left at the Green Valley Property. Mr Moutasallem argued that Shereen did not appear to dispute that a sum of money and other personal property was left in the Green Valley Property, however that she (Shereen) now argues MJ took all of his money and other personal items from her car. The plausibility of Shereen returning the engagement ring by throwing it at MJ was also questioned.
In support of his contention that the property was not returned, MJ relies on contemporaneous text message exchanges in which Shereen threatened a number of times in their relationship to dispose of MJ's possessions, including by donating them to a Salvation Army Store in Bonnyrigg. The Court was invited to infer from this evidence that Shereen's version of events (where the property was returned) was unlikely.
Combined with MJ's submissions on Shereen's credibility, the proposition put forward was that Shereen's evidence could not be trusted. In his written submissions, Mr Moutasallem advanced that if the Court accepts MJ's version of events, MJ would be entitled to the relief he sought.

Submissions on behalf of Shereen

Mr Kirby submitted on behalf of Shereen that these aspects of MJ's claim were without merit and that Shereen's version of events should be accepted.
Shereen's evidence was that she returned the engagement ring to MJ by throwing it at him at his parents' property in Corrimal on the morning of 7 May 2017, shortly before their relationship finally ended. Shereen contends that she also attempted to return MJ's cash and some of his other property left at the Green Valley Property, however MJ refused to accept this. MJ then followed Shereen back to the Green Valley Property and took the cash out of her handbag (which was in her car) while she was in the shower.
Mr Kirby contended that the contemporaneous record bears out Shereen's version of events and referred to a text exchange between the parties later on 7 May 2017, which included the following messages from Shereen: "…Mj you have your money and I'm no longer calling you. You got what you wanted and I'm okay with it. … If that was the truth you would have taken all of the money from the first day I gave it to you. But you pretended that you never go through my bag. It's funny how easy it is to go through my bag behind my back."
Mr Kirby drew the Court's attention to the fact this text exchange was left "untouched and unexplained" by MJ in his own evidence.
Finally, Mr Kirby emphasised that the Court should look to the fact Shereen had been trying to have MJ collect his belongings for some time, a fact supported by a number of the contemporaneous text exchanges in evidence.

Consideration and conclusions on the remaining property

The parties accepted that Shereen sought to return to MJ at his parents' house in Corrimal some of his personal belongings left at the Green Valley Property. They disputed whether or not that property was in fact returned, including the engagement ring and a significant sum of cash (the value of which was also in dispute).
The answer to this question is determined by reference to the Court's assessment of the parties' credibility. For the reasons set out in paragraphs [62] and following above, the Court finds that Shereen's evidence should be preferred as it is supported by contemporaneous documents and is inherently more likely. Of particular importance is the text exchange between the parties later on 7 May 2017, referred to and extracted above at paragraph [131].
Having observed both parties give their evidence, and taking into account what was clearly a volatile relationship, I also record that I was left in no doubt that Shereen's evidence should be accepted that she returned (a somewhat anodyne description) the engagement ring by throwing it at MJ. The Court finds accordingly.
Shereen's threats to dispose of MJ's possessions, including by donating them to a Salvation Army Store, do not assist MJ. A reasonable person would understand these comments to refer to clothing items, household items and other bric-a-brac, particularly insofar as charity donations are concerned, not engagement rings or $20,000 in cash (as alleged by MJ). I have also taken into account as adverse to MJ's version of events, that the text message referring to Bonnyrigg Salvos was sent on 20 May 2017, nearly two weeks after Shereen contends she returned the items and after the parties' relationship had finally ended.
The Court has not been asked to make a determination (and it does not) on whether all personal property belonging to MJ which may have been left at the Green Valley Property was returned. The relief sought by MJ at the hearing was confined to delivery up of the engagement ring and cash. The Court is persuaded on the balance of probabilities that these items were returned to MJ.

Conclusion

MJ's claim will be dismissed. The parties will be given an opportunity to agree on orders to bring these proceedings to a conclusion, including as to the outstanding caveat lodged by MJ over the Properties and costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2020

"Family Law Act 1975(Cth)

Trade Practices Act 1974(Cth)

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