Mulholland v Mulholland [2026] VSC 182

Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, Bennett v Horgan (Supreme Court of New South Wales, Bryson J, 3 June 1994), Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413, Kramer v Stone [1985] HCA 78; (2024) 160 CLR 583, Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101, Sidhu v Van Dyke (2014) 251 CLR 505.

1 Mrs Valerie Mulholland, the defendant, is the mother of three children: John Mulholland, the plaintiff, Judith and Stephen.[1] Since June 1979, Valerie has been the sole proprietor of an acre of land located at 173 Graham Rd, Lancaster, Victoria (the property).[2] At the time of purchase, there was an old church on the property.

2 Over time, and intermittently, each of Valerie's three children have lived on the property. John claims that between 1987 and 2023, at either Valerie's request or with her consent, he was responsible for numerous building works on the property, including some modifications to the back of the church (the church modifications), together with the construction of a two story building, a double garage, and a workshop (collectively, the building works).

3 In December 2023, an interim family intervention order was made against John, with Valerie as the protected person under the Family Violence Protection Act 2008 (the interim IVO). After a contested hearing in September 2024, a final family intervention order was made, which, unless varied or revoked, applies until September 2029 (the final IVO). Pursuant to the final IVO, John is prohibited from residing at the property.

4 In his second further amended statement of claim, John claims:

(a) In 1991, he and Valerie formed a common intention to engage in a joint endeavour to improve the property, including the church modifications. John alleges Valerie was to allow John to reside at the property rent and expense free, with John contributing his construction skills, expertise, labour, and building materials and equipment, for their mutual benefit under this joint endeavour (the first joint endeavour). In reliance on this, John claims he worked on improving the property, and the church modifications.

John claims this first joint endeavour was entered into for the purpose of providing himself and Valerie with 'mutual support, security and benefit', and to provide John with 'a rent and expense free home for life.'

John also alleges that Valerie promised him that if he worked on, and improved the property, he would be entitled to reside there rent and expense free for life (the first promise).

(b) Around Christmas 1999, John and Valerie varied the first joint endeavour to include the construction of the two story building. Under this joint endeavour, John would be entitled to live in the two story building rent and expense free for life; Valerie would obtain a laundry; and Judith could operate her veterinary clinic on the ground floor (the varied joint endeavour). John claims that in reliance on this varied joint endeavour, in addition to improving the property, and performing the church modifications, he also constructed the two story building.

John claims that Valerie promised him that if he constructed the two story building, he would be entitled to reside there rent and expense free for life, and John would be the full beneficial owner of the two story building (the second promise).

5 John seeks an equitable interest in the property, based upon either a common intention constructive trust, a joint endeavour constructive trust, and/or proprietary estoppel. John claims his inability to reside on the property occurred without any attributable blame to him, and it would be unconscionable to allow Valerie to retain full legal title to the property and deny John a beneficial interest. John seeks a 50% interest in the property, or any such amount that the Court deems equitable.

6 Valerie acknowledges much of the building works were performed by John. However, Valerie denies John's equitable interest in the property. Valerie denies that she entered into a joint endeavour with John, and denies she made the promises John alleges. Valerie also denies John's claim to a common intention constructive trust.

7 Valerie claims John, by his own reprehensible conduct, is responsible for his exclusion from the property. Valerie also contends that any equity arising from John's contributions to the building works, have been amortised over time. In addition, Valerie defends the proceeding on the basis that John should be denied any equitable relief, as he does not come to this proceeding with clean hands.

8 The following issues require determination in this proceeding:

(a) Has John established a joint endeavour constructive trust? If so, should equity offer John relief? If so, what is the appropriate relief?

(b) Has John established a common intention constructive trust? If so, should equity offer John relief? If so, what is the appropriate relief?

(c) Has John established a proprietary estoppel? If so, should equity offer John relief? If so, what is the appropriate relief?

9 For the reasons that follow, I am not satisfied that John is entitled to any equitable relief, and I dismiss the proceeding.

Evidence as to matters giving rise to the proceeding

10 At trial, Valerie, John, Stephen and Judith each gave evidence. In addition, the following witnesses were called:

(a) Edward Thurley, a retired painter and decorator, who knew members of the Mulholland family, and had previously helped with some of the building works performed at the property.

(b) Kerry Wiltshire, a farmer, who lives close to the property, and over many years, had frequently visited the property, and at times, helped John with some of the building works.

(c) Katrina Downing, a former employee of Judith's, who knew members of the Mulholland family, and spent time with them, including on the property.

11 Numerous documents were also tendered, including photographs of the building works.

12 I will now summarise the evidence relevant to my determination of this proceeding. Where facts are not agreed, I will note this, and subsequently make findings on such matters.

13 Valerie is 88 years of age, and is a retired nurse.

14 John is 66 years of age, and described himself as a boiler maker/welder. John has three children, who are Valerie's only grandchildren: Notokozo, aged 32; Jack, aged 28; and Matt aged 27.

15 Stephen is 64 years of age, self-employed, and has temporary residence in Indonesia.

16 Judith is 62 years of age, a veterinarian and farrier, and since approximately 2013, has operated a veterinary and equine business at premises next door to the property.

17 On 29 June 1979, Valerie purchased the property. Valerie purchased the property on her own, and without a mortgage. Since that time, Valerie has paid the rates and utilities associated with the property.

18 Valerie moved into the property in approximately 1980. Initially, Valerie lived in the church with her elderly mother and Judith. Later, Valerie's partner Mack also lived on the property.

19 All of Valerie's children have lived at the property, at differing times, and for differing periods. At times, John's children also stayed on the property.

20 John said he lived on the property intermittently from 1986, and permanently from 1999. John said at times he would be away from the property for work. From approximately 2008-2009, John lived on the top floor of the two story building.

21 John said that Valerie never asked him to pay any rent. John said that on occasion Valerie would ask that he contribute towards electricity, which he said that he did.

22 John said that throughout the time he lived at the property he assisted with maintenance work, including putting gutters back on the church, replacing sheets on the roof and mowing lawns.

23 Valerie said she never charged anybody rent at the property, but said Judith and Stephen would give her money towards household expenses.

24 Valerie said John paid for nothing whilst living on the property. Valerie said many times John was not working and she gave him money, including for groceries. Valerie said sometimes she would give him cash, and other times she would pay for the groceries when purchased in town.

25 John said that for several years he did not hold a driver's licence. At such times, Valerie would drive John around as he needed. Valerie said that for a period of time, she drove John to Melbourne every Sunday so he could see his sons.

26 Mr Wiltshire said that he could recall a couple of conversations with John over the years, whereby John said words to the effect that, in return for the work John had performed, he could live on the property for the rest of his life.

27 Mr Thurley gave evidence that he frequently socialised with John, Valerie, Stephen and Judith, and they had lots of meals together. In relation to the Mulholland family in the 1990s, Mr Thurley described the family in this way:

They were all close, they were helping one another ... they'd watch one another's back, they were a good family. A great family.

28 Valerie said that at the time the property was purchased, the church had not been used for many years. There were some holes in the walls, and the altar and chairs had been removed. Valerie said that she hired a plumber to connect water to the premises, and install a septic tank.

29 In his pleadings, John alleges, that upon Valerie's request, or with her consent, he made the following modifications to the property, in the following years:

Erected double carport on site of old building and built horse yards and horse working arena.

Built spiral staircase to access first-floor room at rear of the church. Plastered and painted, installed two sky lights and lined ceiling with lining boards. Carpeted upstairs room.

Provided all materials for footings and carport slab for garage with roller doors - stained glass windows. Installed bricks and roofing trusses and flashings; organised electrical work and fittings and installed mezzanine storage floor at level 1.

Hooked up gutters to water tank on the church; installed sky light in the church on left-hand side; patched up and rendered cracks in church walls and repaired internals in several locations in the church and painted to finish.

Replaced rusted-out roof sheets on eastern side of the church; re-screwed all roof sheets / replaced old nails and set ridge cap back in place on roof.

Pulled out old horse arena and cleaned and stacked bricks and materials for later use in garage.

Laid all brick work to level 1 of two story building; set up lower-level kitchen, pantries and toilet; poured floor slab inside bricked-in walls.

Built steel roofing frame for roof over building and with quick lift cranes installed the structure and roofing timbers over the two story building.

Built workshop and poured slab on east side of the property.

Installed fence from north to south and rail and mesh fence; installed several gates.

Put sunroom area roof over rear of the two story building.

Finished dado brick wall around rear of the two story building.

Put driveway gravel on workshop drive and levelled for use; finished installing extension for weather protection on workshop area.

Performed maintenance on gutters and water tank run-off on main building; cleaned and prepared main gutters.

Finished downstairs kitchen cooking area in the two story building, with hotplates, and electric and gas ovens.

30 In his oral evidence John deposed to the building works identified in the paragraph above, and made reference to some additional modifications, such as installing a dog yard, building a pump shed, as well as digging a trench and laying a pipe to connect the property to an irrigation channel approximately 500 metres away.

31 John produced numerous photographs to show the building works completed over the years, as well as photographs taken in 2024, when he briefly returned to the property to collect some of his personal items.

32 As to the costs associated with such building works, John gave evidence that in about 1990, he purchased approximately 35,000 bricks and other materials from an old church in Wunghnu (the Wunghnu church), for $15,000. These bricks and items were used for the church modifications and the garage. John said one truck load of unused bricks was on sold to a purchaser in Melbourne.

33 John said that he did a lot of the building work himself, but also paid for others to assist him, including Mr Gary Canavan and Mr Thurley. John said that Mr Canavan helped him to do the brick laying, and Mr Thurley helped with the painting.

34 John said that Valerie paid local bricklayers for the modifications to the church, as well as for the concrete that was poured. John also said Valerie may have paid Mr Thurley for the paint.

35 John said that neither Valerie nor Judith contributed to the cost of constructing the two story building. John also denied Judith helped construct the lower half of the two story building. In cross-examination, John conceded that Judith may have paid for the steel benches installed in the kitchen on the lower level, as she wanted to use them for the veterinary clinic.

36 John said that he engaged a draftsperson to draw up the plans for the garage and two story building so that it would be in the heritage style of the church. John said that council approval was obtained for both structures.

37 John said that he kept 'a lot of documents', however he did not produce any receipts as to what goods he purchased so as to perform the building works. John also did not produce any evidence as to who he paid, and in what amount, for labouring assistance.

38 Mr Thurley said that approximately 30 years ago, John hired him to do some painting inside and outside of the church. Mr Thurley also recalled John later hired him to paint the inside of the two story building. Mr Thurley said that John also helped perform this work. Mr Thurley could not recall who paid him for such work.

39 Mr Wiltshire said that over the years, he helped John on the property. Mr Wiltshire recalled John had borrowed his tractor, for its lifting capacity. Mr Wiltshire also said he helped John pour the concrete slab in the workshop. Mr Wiltshire gave evidence he did not see Valerie nor Judith work on the two story building.

40 Valerie said from 1980 to 1983 working bees were held at the property, when family members would come and assist to improve the property.

41 Valerie acknowledged from time-to-time John assisted in some repairs and renovations, and he also made modifications to the property.

42 Valerie accepted that some of the work and building supplies were paid for by John, including the bricks from the Wunghnu church. Valerie also said that at times she paid for things associated with the building works, such as the windows in the sunroom, the bricklayer to build the garage, and wire for fencing. Valerie said that at times she physically helped with tasks associated with the modifications, for example cleaning the bricks from the Wunghnu church. Valerie said that in approximately January or February 2009, she suffered a heart attack whilst digging a trench for the electricity.

43 Valerie said that they 'all seemed to help' with the construction of the two story building. Specifically, Valerie recalled John, Mr Canavan and Judith doing work on the two story building, and she also recalled Judith hiring a brick layer at some stage. Valerie said that she did not pay John nor Mr Canavan for the work they did on the construction of the two story building.

44 Judith said that she qualified to be a veterinarian in December 2003. After graduating, Judith said that she worked in Newcastle for 18 months, and thereafter returned to live on the property. Judith said soon thereafter, she became aware of the construction of the two story building. At about that time, John was starting to construct the laundry. Judith then asked John to build a veterinary clinic for her within that building.

45 Judith said that she paid $30,000 to John for parts and labour associated with the work performed to construct the lower part of the two story building, where her clinic was to be located. Judith said this cost included the steel benches which she required for her clinic.

46 Judith produced diary entries from 2008 which she said enabled her to refresh her memory as to the days she worked on the two story building. Judith said she could recall that on 25, 26 and 27 April 2008, she worked with a brick layer to construct a low wall, at the back of the building. Judith said she purchased the bricks from a demolition yard in Tatura, and also paid for the bricklayer. Judith also recalled that at this time she assisted John and his sons, lift the roof onto the two story building, with the use of a crane, and guide wires.

47 One of Judith's diary entries also included a handwritten annotation by her referring to two separate payments to John, for $2,000 in early 2008 and $10,000 in April 2008. Judith said these were the only written diary entries she made for such payments and she had no receipts.

48 Judith said that she also helped clean the bricks from the Wunghnu church.

The alleged common intention, promises and joint endeavours

49 John said from 1987 until 1991, Valerie and John had a common intention for him to renovate and repair the church. John said that from 1991, there was then a common intention 'to do something completely different' from the renovations - and that was for John to construct a building on the property.

50 John said that around Christmas 1999, he had a discussion with Valerie about the construction of the two story building (the Christmas 1999 discussion). John said that Judith, Mr Canavan and Mr Thurley were also present when the Christmas 1999 discussion occurred. In cross-examination, John said this discussion occurred sometime between 15 December 1999 and 15 January 2000.

51 John said they had found footings from a prior building on the property, and Valerie wanted a laundry. John said the materials for it were already there. John said it was agreed between himself and Valerie, that another building would be constructed. John said that Valerie said to him: 'if you build it, you'll have it there for life. It's yours.'

52 John gave evidence that at this time, Judith said that if he built the two story building, she would be able to use the lower level as a veterinary clinic.

53 Valerie denied having a discussion about the construction of the two story building at Christmas time in 1999. Valerie also said she only met Mr Canavan in 2002.

54 Valerie said that she agreed to the two story building being built as she wanted a brick laundry, for the mutual benefit of all of the family, as there was a lot of washing to be done. Valerie also said that it was agreed that an area of the new building could be used by Judith for her veterinary practice. In addition, John was to get a place to live. Valerie said it was to provide a room for John, with a place to put a bed, 'for when he was at home'.

55 Valerie denied ever saying to John that in return for helping with the two story building he would have a right to live in it for life. Valerie said that she permitted John to live on the property as a favour, and that he did not have any greater right to live there, than any other of her children and grandchildren.

56 Valerie said that some things on the property were done by John for the mutual benefit of the family, whilst other things were done for his own benefit.

57 Judith said that she could not recall being present for any conversation where Valerie told John that he could live in the two story building for life, nor that he would have a full beneficial interest in the two story house.

58 Mr Canavan was not called to give evidence regarding his presence at the time the second promise was allegedly made during the Christmas 1999 discussion.

59 Mr Thurley could not recall being privy to any conversation between John and Valerie as to the arrangements regarding the two story building.

60 After the two story building was completed in approximately 2008-2009, John lived in its upper story.

61 In approximately October 2018, Valerie's sister Pat, went into residential care. At this time, Valerie moved into Pat's house in Kyabram whilst waiting for it to be sold. Valerie said that during this period, she became concerned at the way in which John was caring for the property, including him staying in the church. Valerie said that she wanted an agreement so that she knew the church would stay in the condition she left it. Valerie said she had Judith type up a document entitled 'lodger agreement'.

62 The lodger agreement was dated 21 October 2018. It stated that, in lieu of rent paid to Valerie, John would agree to a number of terms, such as the areas John could access; the state the property was to be kept in; maintenance requirements; prohibition on removing plants without the prior consent of Valerie; the limited use of fires; an obligation to pay water, rates and electricity; and that Valerie had the right to lock parts of the buildings.

63 At the conclusion of the lodger agreement, it stated that if John failed to comply with the terms, it would result in eviction within 60 days of him being provided an eviction letter.

64 Valeire said she considered that these terms and the eviction warning were required to protect her 'if things became too desperate'.

65 Valerie said that on the day the lodger agreement was typed by Judith, it was then presented to John at meeting held between the three of them in Judith's office. Valerie said that at the meeting, John signed the document, but then screwed it up, and was so angry, he 'stormed out of the room'. Valerie said that John took the lodger agreement with him, and so she never signed it.

66 Judith said that Valerie had informed her that as Valerie was having difficulties with John, Valerie requested that Judith type up the lodger agreement. Judith recalled Valerie stating she wanted to have peace of mind whilst she lived in Pat's house. Judith said that she typed what Valerie told her she wanted to have in the agreement.

67 Judith said on the same day she prepared the lodger agreement, Valerie and Judith met with John, and discussed the document. Judith said it was made clear to John that if he did not comply with the terms of the lodger agreement, Valerie would consider evicting John.

68 Judith said she saw John sign the lodger agreement. Judith said that she can recall John being very angry and thumping the table.

69 John said he had never seen the lodger agreement, nor had he agreed to any of its terms. Further, John said Valerie had never discussed with him that he remain at the property as a lodger. John said that Valerie and Judith were lying about this meeting ever being held, and Judith was lying when she said that he signed the agreement.

70 The version of the lodger agreement tendered in the proceeding was unsigned. Save for it being put to John that Judith would give evidence that he signed the lodger agreement on this day, I note that the accounts of Valerie and Judith as to what occurred when the lodger agreement was presented to John, were not expressly put to John in cross-examination.

71 Valerie said that she lived at Pat's house for approximately 18 months. Valerie said when she returned to the property, it was filthy. She said the lock had been cut off the back door to the church. Valerie said that she had to hire professional cleaners to clean out the church, and threw out mattresses which had been urinated and defecated on.

72 John said that he had greater access to the church when Valerie was living at Pat's house, but he said he never moved in there, nor did he cause any damage to the church building during this time. John said that Valerie was lying about the need to throw mattresses out, and he never saw any professional cleaners attend.

73 Valerie said that over time her relationship with John deteriorated, as he was drinking alcohol a lot, and was turning into the type of person she previously had to deal with in his father, and this terrified her. Valerie said she could not stand up to John, and because of his drinking, she became more frightened of him over time.

74 Judith also said that John was drinking a lot. However, Judith said that she never heard John threaten Valerie in front of her.

75 Ms Downing said that she had observed the deterioration of John and Valerie's relationship. Ms Downing recalled an occasion on the property when John was changing a battery in Valerie's car. Ms Downing said that John intimidated and belittled Valerie and she considered that the way John spoke to Valerie was aggressive.

76 Ms Downing gave evidence as to a conversion she had with John when she travelled with John in a car to Pat's house, to collect some pot plants to take back to the property. Ms Downing recalled John told her that he wished his mother was dead. Ms Downing recalled commenting to John that he would miss her, as parents are not with us forever. Ms Downing said that John rebuffed her and said it would be easier if Valerie was dead.

77 John recalled this conversation with Ms Downing, but said his reference to someone being dead was to Pat, and not his mother. John denied that he said to Ms Downing life would be easier without his mother. John said that Ms Downing may have misheard him, and denied he was deliberately lying about this conversation.

78 John also denied Ms Downing's account of what occurred when he was changing his Valerie's car battery.

79 John denied being a heavy or habitual drinker, and said at one time, he had gone 10 years without having a drink. John accepted that he was drinking alcohol as at January 2024, but denied that drinking alcohol had been a cause of erratic behaviour towards Valerie.

80 John said that about three and a half years ago, he went to Judith's veterinary clinic, at which time Judith proposed to John that he sell his interest in the property to her. John said that he informed Judith that it was a family property and that it was not for sale. John said Judith told him: 'you should go away and think about it and have a really good think about it because that's what I want to do'.

82 John said that Valerie had made allegations against his dog, and threatened to have Judith put his dog down. Valerie accepted that she said this. Valerie said that, over time, John had 4 dogs and he would never end up looking after them. Valerie said that John's last dog who lived on the property was a large white sheep dog. Valerie said the dog would come in and sit on her couch and refuse to get off. Valerie said she had to ask John to physically remove the dog from the couch, as Valerie was not strong enough to do so. Valerie said that in sheer desperation she said she would kill the dog, and she threatened to do so, on several occasions.

83 John said that save for the issues about the dogs, he did not think there was a problem in his relationship with Valerie, and that he loved his mother.

84 On 6 December 2023, John's dog was killed when it was struck by a vehicle on the road. Valerie said this happened as the dog escaped through the front gate when she opened it to collect the rubbish bins. At the time, Stephen and his partner were visiting from Bali, as Notokozo was to be married the following day. Valerie said that after John's dog escaped, she called out for help to catch it. Soon after, Stephen found the dog, which had been injured, and placed it in the car and drove to Judith's clinic. The dog died soon thereafter.

85 All family members agreed this was a very sad day, as John greatly loved his dog.

86 Following the accident, Valerie said that when she tried to apologise, John told her to 'Fuck off'. Later that day, upon arriving back at the property, Valerie said she found pots and plants from her garden had been thrown and broken. Valerie gave evidence that John then said to her, 'Fuck off you old bitch, I'll kill you, I'm going to kill you'. Valerie said that she found this particularly upsetting and terrifying as she had previously had a violent husband.

87 Stephen also said later that day, when he returned to the property, he saw Valerie with John. Stephen heard John berating Valerie and saying words to the effect, 'I will kill you, you old bitch'. Stephen said Valerie was very upset and he consoled her.

88 John said that he blamed Valerie for his dog's death, and he was very upset his dog had died. However, John denied he was angry with Valerie and denied that he threatened to kill her at this time. John said all he did was swear at Valerie, and told her to 'Fuck right off.'

89 It was common ground that John's sons were also upset over the death of the dog. On the same day, they tipped over pot plants, ripped out plants and threw things around Valerie's garden. John said he tried, but was unable to stop his sons doing this.

90 The next day was Notokozo's wedding in the Yarra Valley, which all members of the family attended. Valerie said that when she got home from the wedding, she discovered that two valves on her car tyres had been damaged. Valerie said she went into Kyabram with Stephen, and attended the police station as she was concerned about the damage to her car. There, Valerie made a statement to a police officer, and made a complaint about what had happened at the property, that being: John's threat to kill her; her plants being vandalised; and her car tyres being damaged.

91 Stephen recalled when they arrived at the property after the wedding, Valerie's car tyres were damaged. Stephen said he took Valerie into town for the tyres to be repaired, and whilst with her, he expressed concern as to what John might do after Stephen returned to Bali. Stephen said that he then took Valerie to the police station to enable her to report the matters.

92 On 8 December 2023, a police officer applied for a family violence intervention order against John, with Valerie as the protected person. John has not resided at the property since that date.

93 On 12 December 2023, the interim IVO was made. Under this order, John was prohibited from:

(a) committing family violence against Valerie;

(b) intentionally damaging or threatening to damage any property of Valerie's;

(c) attempting to locate, follow or keep Valerie under surveillance;

(d) publishing any material regarding Valerie on the internet;

(e) contacting or communicating with Valerie;

(f) approaching or remaining within 5 metres of Valerie; [3]

(g) going to or remaining within 200 metres of the property; and

(h) getting another person to do anything that John must not do under the order.

94 Valerie said she was asked to write a statement after the interim IVO was made. As part of this statement, Valerie acknowledged John had always told people that the church belonged to him. Valerie stated:

... John has made it clear that he considers me in the way and that the property should be his.

...

I would consider a one off payment to my son John to reimburse him for anything that he feels he has invested into this property but I will not have him here again.

95 Valerie said she included this, as at the time, she believed that if John was to be kept off the property, he should be given something.

96 John said that after the interim IVO, but before the final IVO was made, Valerie and Judith threatened him, including having correspondence sent to where he was living. John said that he received two letters, in which he was given permission to attend the property to collect his personal items, and was informed that if he failed to remove such items they would be deemed abandoned and either donated to charity or sold. John complained that this demand was made prior to the determination of the final IVO in September 2024, and John said he considered it a threat.

97 Valerie said she was advised by Centrelink to sell the property to her 'caring children', to make her home secure. Judith also gave evidence that Valerie asked her to attend a meeting with Valerie at Centrelink, where such advice was given. Judith said a letter was provided to Valerie at this meeting, but when this letter was called for during the trial, it was not produced.

98 On 18 September 2024, Stephen and Judith attended a law firm to have their wills prepared, and at the same time, signed a contract of sale to purchase the property from Valerie for a sum of $1 (the contract of sale). Both Stephen and Judith said this was done at Valerie's request.

99 This contract of sale has not been registered. Stephen, Judith and Valerie agreed that any enforcement of the contract of sale would be subject to the determination of this proceeding.

100 On 19 September 2024, a contested hearing was held in the Magistrates' Court in Echuca. Both John and Valerie gave evidence.

101 During the hearing, Valerie gave evidence of the events of 6 December 2023. Valerie also gave evidence that previously, John tried to throw her off the upstairs balcony, and that John had threatened to kill her many times. Valerie said that John would walk past her and make a comment such as, 'You old bitch, you're time is running out'.

102 John denied such allegations in the hearing of the final IVO, and also denied them when put to him in cross-examination in this proceeding.

103 At the conclusion of the hearing, the Magistrate was satisfied that the interim IVO should be extended such that the final IVO was made. Under this order, the restrictions contained in the interim IVO were extended to apply until 18 September 2029, unless extended or varied prior to that time.

104 No criminal charges were laid against John in respect of the acts the subject of the final IVO.

105 The next day, John filed an application and summons for intervention orders against Valerie and Judith, with both summons to be returnable on 6 November 2024 (John's IVO applications). John gave evidence that his solicitor, Mr Phillip Gleeson advised him to lodge these IVO applications to protect his personal belongings stored at the property.

106 In the application pertaining to Valerie, John claimed that Valerie had threatened his dog, and had damaged and threatened to destroy his personal belongings. John sought numerous orders to be imposed against Valerie, including that Valerie be prevented from approaching or remaining within 100 metres of John, and not intentionally damaging, or threatening to damage, any of John's property. Identical orders were sought against Judith.

107 These applications were served on Valerie and Judith.

108 On 23 October 2024, John withdrew both IVO applications. In the withdrawal form which John filed with the Magistrates' Court, his explanation for withdrawing the IVO applications was that he had filed them based upon poor legal advice.

109 Mr Gleeson was not called to give evidence as to the advice provided to John in respect of these IVO applications.

110 John relied upon an opinion from expert property valuer, Jarod Collins, who provided an opinion that the market assessment for the property, as at 15 August 2025, was $850,000 to $950,000.[4]

111 After the close of evidence (and after the parties written submissions were provided), John also sought to rely upon two documents discovered by Valerie. These were:

(a) A valuation and rate notice from the Campaspe Shire Council dated 11 July 2023. This referred to the site value of the property being $198,000.

(b) A property clearance certificate for land tax purposes, from the State Revenue Office, dated 3 May 2024. This also referred to the site value of the property being $198,000.

112 John did not tender such documents during his case, but sought to rely on such evidence now, in the event that I came to consider the parties' respective contributions towards the property. John submitted that when the market assessment of Mr Collins is considered with the site value contained in these two documents, the capital improvements to the property are very substantial. John also submitted that the Court may, on its own motion, order a further expert valuation to assist in a determination of the remedy to be ordered in this proceeding.

113 I will not allow John to rely upon such documents and accept Valerie's submission that they ought be excluded as evidence under s 135 of the Evidence Act 2008. On the face of each document, there is no basis for me to understand the source and/or basis of the calculation of the site value. It is also unclear what the value of the original church building was, prior to modification. For the purpose for which John seeks to rely upon these documents, I consider they are confusing. Further, to admit these documents at this late stage of the proceeding, in the absence of any good excuse, would also be unfairly prejudicial to Valerie. Those dangers substantially outweigh any probative value of those documents.

114 Having considered the whole of the evidence, I make the following observations.

115 John at times was a cooperative witness and appeared to fairly account for work done by others on the property, including some works performed by Valerie and Judith. However, for the following reasons, I have considerable reservations as to John's credibility as a witness.

116 John denied directly threatening to kill Valerie on 6 December 2023, whereas Valerie and Stephen gave evidence that he did so. I prefer the evidence of Valerie and Stephen, who both gave clear evidence that they heard such a threat, and to which Valerie was upset, and required consoling.

117 I also consider John's denial that he was very angry at Valerie on this day to be inconsistent with what Valerie, Stephen and Judith reported. John's unwillingness to even acknowledge that he was very angry at Valerie on what was, by everyone's account, a very distressing day for him, reflects poorly on his credibility.

118 Ms Downing was a straight forward and reliable witness, who gave a clear account of her conversation with John about Valerie, and his wish that Valerie was dead. I consider John's explanation for this evidence being a consequence of Ms Downing mishearing him, defies logic, given that Ms Downing said she responded to John by saying that his mother would not be with him forever. In reconciling the different accounts of this conversation, I prefer Ms Downing's evidence, and consider John's denial that he made such hostile remarks about his mother as disingenuous.

119 Valerie relied upon John's IVO application as a further example of domestic violence by John against her. John gave evidence that he lodged the IVO against Valerie based upon legal advice given to him by his solicitor Mr Gleeson. John then later claimed this was poor legal advice, which justified his subsequent withdrawal of the IVO application. However, Mr Gleeson was not called to give evidence to corroborate this claim.

120 Mr Gleeson swore an affidavit on 27 September 2025, in which he deposed to being 82 years of age, semi-retired and being based near Echuca. Mr Gleeson deposed to his deteriorating health, including prostate cancer, type 2 diabetes, bowel issues and restricted mobility. Such health conditions explain why Mr Gleeson was not present as the instructing solicitor in the trial. However, such medical conditions do not explain why Mr Gleeson was unable to give evidence, via an audio visual link, as to the advice he provided John regarding the lodging of John's IVO applications.

121 Noting that John called Mr Thurley and Mr Wiltshire via audio visual link, this affidavit is insufficient to explain why Mr Gleeson was not also called to give evidence in this way, which would have been convenient given his medical conditions, and geographical distance from Melbourne. John's attempt to attribute blame to his solicitor for the filing of an IVO against Valerie, also reflects poorly upon his credibility.

122 When these aspects of John's evidence are considered collectively, I prefer the evidence of others, unless John's version is corroborated by another witness.

123 I consider Valerie to be a genuine and honest witness, although at times, her memory was poor. Valerie had difficulties recalling the dates (and years) when certain events occurred, including who lived at the property and when, as well as when the building works were performed.

124 In her evidence, Valerie volunteered that some jobs and products were paid for by John, and other jobs and products paid for by her. There were times when Valerie said she could not recall who paid for specific jobs. I am satisfied that Valerie tried her best to answer such questions honestly, and as best as she could recall.

125 Valerie also admitted to threatening to kill John's dog, on several occasions. Such a frank admission, was consistent with her candour as a witness.

126 I accept Valerie was a generous mother, who allowed all her children, and grandchildren to live at the property, rent and expense free, for extended periods. I am satisfied that at times, John made alterations to the property, which Valerie had not approved of, and which she reluctantly tolerated.

127 I accept that over time, Valerie became increasingly fearful of John. I find that consistent with Valerie's age and fragility, she felt vulnerable in John's presence.

128 I also consider Judith and Stephen to be reliable witnesses, who endeavoured to give a true account of events, some of which had occurred decades ago. I form the same view in respect of the oral evidence of Mr Wiltshire and Mr Thurley. As noted above, I also consider Ms Downing a reliable witness.

129 Before turning to the three causes of action upon which John's claim for equitable relief is based, I will first set out key factual findings relevant to my determination of this proceeding.

130 From the above evidence, I accept the following modifications were made to the property since 1987:

(a) Modifications to the church - this initially included patching and painting the walls, and adding in a kitchen, a toilet, a bathroom, a bar, and a pot belly stove. In addition, a sunroom and mezzanine floor were later added to the rear of the church.

(b) Relocation of the original shed, which later became the workshop. The workshop has a partial concrete floor, and a mezzanine level. The workshop is located in the south eastern corner of the property.

(c) Construction of the garage on the south western corner of the property.

(d) Construction of the two story building. On the ground floor of this building, there is a laundry, and an area where Judith operated her veterinary practice for a period of time. The lower floor also incorporates a concrete water tank. On the second level, there is a bedroom, a front balcony, and a rear balcony. This building was completed in approximately 2009.

(e) Other modifications to the property, including fencing, connection of the irrigation tunnel to the property, installation of a new water tank and a paved BBQ area.

131 Whilst Valerie made complaints about some of the modifications in her oral evidence, I have disregarded this evidence, given there was no issue in the proceeding as to the quality or lawfulness of the building works.

132 I accept that Valerie and Judith made some contributions towards the building works, both financial and through personal exertion. However, I accept that a significant portion of the building works were either performed by John personally, or he paid or arranged for others to help him do the work. I also accept that John expended some monies towards the goods required to construct such building works, including the $15,000 he spent when he acquired the Wunghnu church.

133 Given my reservations as to John's credibility, I prefer the evidence of Valerie in respect of the building works performed on the property - there was no express promise or representation made to John that in return for him helping to improve the property, he could live there rent and expense free for life. Mr Wiltshire's evidence as to what John reported to him, is not evidence of Valerie's belief or intention, and is not sufficient to rebut my acceptance of Valerie's evidence on this.

134 Instead, I accept there was a common understanding between Valerie and John, that as her son, he could live on the property rent and expense free, and whilst there, he could help to improve the property for their mutual enjoyment. However, Valerie's desire to improve the property was not so that John would then have a beneficial interest in the property, but rather so that he, Valerie, and the other family members, including his children, could enjoy it.

Christmas 1999 discussion, the second promise and the varied joint endeavour

135 Valerie and Judith both denied the Christmas 1999 discussion occurred. Valerie said she did not meet Mr Canavan until 2002, and she was not challenged on this.

136 John initially said this discussion occurred at Christmas time in 1999, but later expanded this period to include up until mid-January 2000. John said it was witnessed by Mr Thurley and Mr Canavan. John was challenged in respect of this alleged discussion.

137 Mr Thurley could not recall such a discussion. Mr Canavan was not called by John to corroborate the alleged promise made during this discussion. There was no explanation by John for Mr Canavan's absence.

138 Where a witness, who is able to give relevant evidence about a fact in issue, is not called, and the party expected to have called that witness does not offer a sufficient explanation for the absence of the witness, an adverse inference may be drawn, against the party who failed to call that witness.[5]

139 In closing submissions, John submitted that there was no property in a witness, and there was no evidence that Valerie could not have called Mr Canavan. However, it is John who alleges that Mr Canavan witnessed the Christmas 1999 discussion. In making this assertion, it is reasonable to expect that John would have called Mr Canavan. I infer from Mr Canavan's unexplained absence that his evidence would not have assisted John's claim as to the Christmas 1999 discussion.

140 In circumstances where I find John to be an unreliable witness, in the absence of corroboration, I am not satisfied the Christmas 1999 discussion occurred, nor that the alleged second promise was made.

141 Instead, I am satisfied that the decision to construct the two story building was an extension of the common understanding that the property should be further improved, with the construction of this building being for the mutual benefit of the family members - a laundry for their collective use, an upstairs area for John to reside in, and a designated area from which Judith could operate her veterinary practice.

142 The signed version of the lodger agreement was not produced. John denied that he had ever seen this document, and said that Valerie and Judith lied about the alleged meeting. Judith said that John signed the document, but she could not say where the signed version of the agreement was. Judith did not give evidence that John screwed up the agreement and took it with him. Valerie said that he signed it and then angrily screwed it up, and took it with him. This alleged action by John was not put to him in cross-examination. Valerie's counsel submitted it had not been necessary for him to do so, given John's adamant denial that he had never seen the document. I do not accept that submission. This specific account of what occurred at this meeting, with an alleged action by John which was capable of explaining the inability to produce the document, should, as a matter of fairness, have been put to John.[6] Accordingly, I give little weight to Valerie's account of what happened at this alleged meeting.

143 However, I am satisfied the 2018 lodger agreement was drawn up by Judith in 2018 at Valerie's request. I am also satisfied the document represented Valerie's sentiments and concerns towards John and his use of the property in 2018.

144 It is not necessary to reconcile the evidence pertaining to whether or not this agreement was presented to John and signed by him at a meeting, as it is irrelevant to what I ultimately determine in this proceeding.

145 In determining whether or not John threatened to kill Valerie on 6 December 2023, I must be actually persuaded of this on the balance of probabilities, taking into account the gravity of the matter alleged.[7]

146 Despite John's denial that he did not threaten to kill Valerie on this day, as I have already stated, I prefer the evidence of Valerie and Stephen that he made such a threat. I found Valerie and Stephen both credible and reliable in their account of this day. Stephen recalled hearing the threat, and then consoled Valerie afterwards. Both Valerie and Stephen said that John was very angry at the time.

147 John's counsel submitted that I needed to be persuaded of the elements of the criminal offence of threat to kill, pursuant to s 20 of the Crimes Act 1958. That is, a person, without lawful excuse, threatens to kill another person, intending that the other person would fear that the threat would be carried out, or being reckless as to whether that other person would fear the threat would be carried out. I do not accept that John's intention or level of recklessness is relevant for the purpose of what must be determined by me in this proceeding.

148 Notwithstanding that John was not charged for making a threat to kill Valerie on 6 December 2023, for the purpose of this proceeding, I am actually persuaded,[8] that this verbal threat was made by John to Valerie. I also accept that Valerie was frightened of John as a consequence of his conduct towards her.

149 Pursuant to s 5 of the Family Violence Protection Act 2008, family violence is behaviour by a person towards a family member which is physically, sexually, emotionally or psychologically abusive, economically abusive, threatening, coercive or in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member.[9] 'Emotional or psychological abuse' means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.[10]

150 John contested the extension of the interim IVO, which required the matter to proceed to a contested hearing, at which Valerie gave evidence of threats which John had made against her, and was cross-examined. A magistrate was sufficiently persuaded as to the seriousness of such conduct, that Valerie is a protected person under the final IVO for a period of five years.

151 The following day, John's IVO applications were filed. On the evidence before me, I infer there was no proper basis for an application to be filed against Valerie. I accept the submission of Valerie's counsel that the filing and serving of John's IVO application against Valerie, was menacing and abusive behaviour, capable of being construed as a further act of domestic violence against Valerie.

152 As stated above, I also found Ms Downing to be an honest and reliable witness. I accept her evidence that John told her that he wished Valerie was dead, and that this was not misheard by Ms Downing (as John had alleged in his evidence).

153 I accept Valerie's evidence that she was frightened of John, and she genuinely feared for her own safety.

154 Considering the whole of the evidence and taking into account the seriousness of the allegations, I am actually persuaded there were acts of domestic violence, by John against Valerie.[11] Contrary to John's submissions, the finding by me of acts of domestic violence, which rendered the need for Valerie to be a protected person, is relevant to some of the matters I must determine in this proceeding - most notably whether any joint endeavour was terminated as a result of attributable blame, and the maxim that a person must come to equity with clean hands.

155 Given the animosity between the family members, evidence was adduced as to incidents, which they attached significance to, most notably: whether John recklessly caused a fire in the church; whether John put the electricity account for the property into his name and then failed to pay the bill; and whether John and Valerie travelled to Notokozo's wedding together. I regard the evidence on such matters to be equivocal, and it did not assist me in my assessment of the credibility of any of the witnesses. Further, as nothing turns on these incidents, I have not referred to the evidence pertaining to them in this judgment.

156 I also consider the following matters to be immaterial to what I am required to determine:

(a) Given my reservations as to John as a witness, I accept Judith's denial that she proposed to John that she buy him out of the property. Even if such a conversation did occur, its relevance, if any, would be marginal to the facts in issue between John and Valerie.

(b) As the registered proprietor of an unencumbered property, in the context of what had then occurred between Valerie and John, nothing improper turns on Valerie wanting to sell her property to Stephen and Judith for $1.

(c) Valerie's contemplation of offering John a one off payment in December 2023 is a reflection of her generosity as a mother, and this need not influence the determination of whether John is entitled to any equitable relief.

157 A joint endeavour constructive trust may operate at equity to prevent a party from asserting or retaining the benefit of property to the extent that it would be unconscionable to do so. The 'fundamental elements' of such a claim were defined in Muschinski v Dodds[12] and Baumgartner v Baumgartner.[13]

158 In Muschinski, Mrs Muschinski and Mr Dodds were in a de facto relationship when they entered into a contract to purchase a property for $20,000, as tenants in common in equal shares. They planned to carry out renovations and run a crafts business there, and made financial contributions towards the purchase and improvement of the property in the sums of $25,259.45 by Mrs Muschinski, and $2,549.77 by Mr Dodds. The joint endeavour broke down and Mr Dodds sought to assert his legal half interest in the property. Justice Deane (Mason J agreeing) construed a trust in favour of Mrs Muschinski. His Honour determined that Mr Dodds' conduct, in seeking to assert and retain the benefit of a full half-interest in the property without allowing for the fact that Mrs Muschinski had contributed approximately ten-elevenths of the purchase and improvement costs, was unconscionable in character.[14] The applicable principle was identified by Deane J as follows:

The principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.[15]

159 His Honour emphasised that the Court was not 'at large' to determine what was 'just and fair as a matter of abstract morality'.[16] Rather, while notions of what was just and fair were relevant, this was:

only in the confined context of determining whether conduct should, by reference to legitimate processes of legal reasoning, be characterized as unconscionable for the purposes of a specific principle of equity whose rationale and operation is to prevent wrongful and undue advantage being taken by one party of a benefit derived at the expense of the other party in the special circumstances of the unforeseen and premature collapse of a joint relationship or endeavour.[17]

160 It was further noted by Deane J that a joint endeavour constructive trust is a remedy which may be imposed by equity 'regardless of the actual or presumed intention' to form a trust.[18]

161 In Baumgartner, the High Court endorsed Deane J's approach in Muschinski.[19] There, the parties lived in a de facto relationship at a property in which Mr Baumgartner was the sole registered proprietor. Ms Baumgartner gave her income to Mr Baumgartner, and from those pooled resources he paid mortgage instalments, as well as expenses and outgoings arising from living together as a family. The relationship broke down and the High Court recognised a constructive trust in favour of Ms Baumgartner, with the parties holding beneficial interests of 45 percent to Ms Baumgartner and 55 percent to Mr Baumgartner.[20] The joint judgment viewed the arrangement for the pooling of earnings as aimed at ensuring that they would be applied toward their joint relationship and for their mutual security and benefit.[21]

162 Relevant contributions may concern the purchase, improvement or retention of property for a joint purpose.[22] In Sivritas v Sivritas,[23] Kyrou J captured the range of matters which may be taken into account as follows:

[T]he pooling of financial resources, other financial contributions even in the absence of pooling, contributions of labour, and non-financial contributions or contributions in kind such as homemaking and parenting contributions. Further, the inquiry into whether the assertion by a party of his or her legal rights would be unconscionable can encompass events that occurred after the property was initially acquired. Expenditure on repairs and renovations of the property by a person asserting a constructive trust in respect of the property, where the expenditure is accepted by the legal owner of the property in the knowledge that it would improve the home and add to its value, can be considered as a contribution in quantifying the first person's equitable interest under the constructive trust.[24]

163 While both Muschinski and Baumgartner involved de facto relationships, the principles have since been applied to joint endeavours between parents and children.[25]

164 In the context of family relationships, courts have taken a cautious approach to the question of attributable blame.

165 In Bennett v Horgan,[26] the plaintiffs were the parents of the second defendant, who was married to the first defendant. The property the subject of the proceeding was purchased for $67,000, with a credit union lending the defendants $40,000 and the first plaintiff advancing $30,000. The parties had a written agreement that the defendants were to be the registered proprietors of the property, and the plaintiffs were permitted to occupy the property and upon its sale, the $30,000 was to be repaid to them. The house on the property was not large enough for both the defendants and plaintiffs to live, and it was later agreed that the plaintiffs would contribute to extensions on the property so they could reside there permanently. The plaintiffs subsequently spent up to $100,000 on the property. The joint occupation of the premises ended when the relationship between the parties broke down, with the plaintiffs asserting that they could no longer tolerate the defendants' financial mismanagement. The plaintiffs then commenced proceedings asserting a charge over the property in their favour of $100,000.

166 Justice Bryson noted that the principle upon which the plaintiffs might have been entitled to a charge was that recognised by Deane J in Muschinski. In considering attributable blame, his Honour stated:

The concept of attributable blame must be understood and applied with some tolerance; in my view it does not call for a judgment attributing blame among members of a family for the continuing relationship becoming intolerable, unless perhaps in particularly gross cases. Such judgment would be difficult and unreliable, as it is rare indeed that something or other which could be said to be a ground for blame cannot be identified and laid to the charge of each of the persons concerned. Leaving gross cases involving criminality or similarly reprehensible behaviour on one side, it should usually be understood, in my opinion, that where personal relationships deteriorate and the sharing of a dwelling becomes intolerable to some or all of those concerned, there is, within the meaning of Deane J's expressions, no attributable blame and the case is one for an equitable adjustment.[27]

167 His Honour ultimately held that the defendants should pay the plaintiffs $50,000 as equitable compensation for the termination of the arrangement, as well as return the $30,000 paid under the written agreement.

168 The approach taken to attributable blame in Bennett has been adopted on multiple occasions.[28]

169 In Hughes v Sangster,[29] Mossop J viewed attributable blame as being reserved for extreme cases.[30] The circumstances in Hughes involved a dispute between a mother and daughter, who had entered into a joint endeavour to contribute equally to the purchase of a property as joint tenants and build a house. The parties were in dispute as to who made what contributions, including whether the daughter's contribution to living and household expenses were to be taken into account as contributions towards the purchase price. The Court was not persuaded there had been a variation of the joint endeavour to allow such expenses to be taken into account.

170 In deciding whether the joint endeavour came to an end without attributable blame, Mossop J observed that where 'personal relationships deteriorate and the sharing of a dwelling becomes intolerable to some or all of those concerned then, except in an extreme case, there is no attributable blame.'[31] The evidence disclosed that a combination of factors led to the mother and daughter deciding to move on to different living arrangements, and there was no attributable blame. A constructive trust was recognised, based upon express contributions as found by the Court, so as to protect against an unconscionable windfall to the daughter.

171 In Tasevska v Tasevski,[32] a mother made contributions to a property owned by her son and daughter-in-law, and asserted that she had an interest in the property by way of constructive trust. On the issue of without attributable blame, the son and daughter- in-law claimed that the relationship broke down on account of the mother's behaviour, in circumstances involving a family dispute and the mother obtaining an interim apprehended violence order. Justice Einstein rejected the argument, finding that the 'relationship gradually turn[ed] sour through incremental events'.[33] His Honour observed there would have been 'many occasions where family squabbles occurred, sometimes caused by one side of the family and sometimes caused by the other.'[34] Further, it was held there was insufficient evidence as to the circumstances leading to the apprehended violence order, and Einstein J stated he could not accept the son would have threatened to kill is mother.[35]

172 In Palinkas v Palinkas,[36] Austin J was required to determine whether the plaintiffs, who were the parents of the defendant, were entitled to contributions they had made in respect of the defendant's property over a period of time. His Honour was satisfied there was a joint endeavour between the parties, whereby the parents paid their son a sum of money, which was to be used toward improving and running a farm including a cottage, and which they would have the right to occupy for life. In rejecting the defendant's claim the relationship broke down due to attributable blame on his parents behalf, Austin J stated:

The parties clearly have strong views as to whether there has been attributable blame for the breakdown of their relationship, but this is not the case where, on the evidence, there is clear wrongdoing on one side while the other is manifestly faultless. Rather it is a case of a relationship gradually turning sour through incremental events where thoughtless conduct appears to have been matched by undue sensitivity ...[37]

173 Henderson v Miles (No 2),[38] involved circumstances in which a mother funded construction of a cottage on land owned by her daughter and son-in-law, on the understanding that she could reside there until she died or permanently vacated. The relationship soured following accusations that the mother was stealing money from the daughter and son-in-law, and the mother later asserted an equitable charge over the land. Chief Justice Young found in favour of the mother, describing the equity identified in Muschinski as a 'windfall equity'.[39] His Honour granted the mother equitable relief to prevent the couple from unconscionably gaining a windfall by way of the increased property value, with an adjustment in relation to the life estate. In considering attributable blame, his Honour stated:

As can be seen from its roots in cases such as Lyon v Tweddell, the expression 'without attributable blame' in the standard formula does not mean that the court must try and work out which of the parties in a domestic relationship was of the greater fault; see Callaghan v Callaghan [1995] SASC 5064; (1995) 64 SASR 396 at 407, where Perry J said that the question as to whether equity gives relief does not turn on the nice question as to where the blame lies.[40]

174 Callaghan v Callaghan,[41] as referred to by Young CJ in Henderson, was a case in which the Court recognised an interest based on equitable estoppel. After the death of his wife, a father encouraged his daughter to move towns and live with him. He gifted a property to his daughter (registered in her name), subject to him having a right to occupy a granny flat. The father subsequently re-partnered and spent time away from the property, and the daughter took steps to sell the property. Justice Perry rejected the suggestion that equity should not aid the plaintiff because he voluntarily left the property, noting that it would be inequitable to recognise the interest when there had been a 'breakdown in mutual intention' and the question of equitable relief in such circumstances did not turn on 'any nice question as to where the blame lies'.[42]

175 In Austin v Hornby,[43] Ward J recognised an apparent inconsistency between the approach to attributable blame in Henderson, and the principles as articulated by Deane J in Muschinski.[44] Her Honour also noted that the question of attributable blame had been the subject of a grant of special leave in the High Court, but was ultimately unresolved,[45] before reasoning that any apparent inconsistency could be resolved:

if the question whether a joint endeavour has come to an end as a result of attributable blame (in circumstances where the breakdown is due to some wrongful conduct of the party seeking the imposition of a constructive trust) is one treated as part of the question whether it is unconscionable for the other party in those circumstances to retain the benefits of the joint endeavour.[46]

176 Austin involved a claim by Mr Hornby, who was the former de facto partner of Ms Austin's daughter. Mr Hornby asserted that a constructive trust existed over a property previously owned by Ms Austin, or the proceeds of sale from that property, on account of contributions he made to the property whilst living on it, including carrying-out and coordinating the construction of a house. Justice Ward held that $100,000 should be paid to Mr Hornby out of the proceeds of sale from the property, by way of recoupment of the contributions Mr Hornby made to the failed joint endeavour.[47] Whilst noting that the de facto relationship may ultimately have broken down due its abusive nature (and in particular the conduct of Mr Hornby), her Honour did not to embark upon a determination of who was responsible.[48] Rather, Ward J considered factors of 'that kind' going to whether it was unconscionable for Ms Austin to retain the benefits of the contributions made by Mr Hornby without compensation for his work on the property.[49]

177 The approach of Ward J was cited by Parker J in Makaritis v Makaritis (No 2),[50] where the relevant joint endeavour broke down after the claimant suspected that the property owner had deceived him and accused him of being a 'fraudster':

[The claimant's] suspicions were wholly unfounded, but the fact was that the trust between the parties was lost and that made the continuation of the joint endeavour untenable. There are few, if any cases in which relief has been refused because the breakdown in the relationship was the fault of the plaintiff. As Young CJ in Eq said in Henderson v Miles (No 2) [2005] NSWSC 867 at [18], in deciding whether there has been 'attributable blame' in the context a domestic relationship, the Court is not concerned with which of the parties bears moral responsibility for the breakdown in the relationship.

The reason for this is not hard to see. The doctrine operates in a restitutive way. It restores to the plaintiff contributions which the plaintiff has made to property owned or controlled by the opposing party. Once the relationship has in fact broken down, it is hard to justify allowing the opposing party to retain such a windfall, no matter how badly the plaintiff may have behaved, unless that behaviour in some way makes the recovery of the plaintiff's contribution unconscionable: see Austin v Hornby [2011] NSWSC 1059 at [169]-[173] per Ward J; see also _Knox v Knox (_Supreme Court of New South Wales, Young J, 16 December 1994) 10. That was not suggested here.[51]

178 This conclusion was upheld upon appeal, with Mitchelmore JA finding that in the circumstances, it was correct not to descend into the rights and wrongs of what the parties did after the breakdown of the relationship.[52] In reaching this conclusion, Mitchelmore JA quoted with apparent approval the reasoning of White JA in Pavlis v Pavlis, that '[t]he absence of attributable fault is one of the elements to be established in order to show that the defendants' refusal to recognise the plaintiffs' assertable equitable interest is unconscionable'.[53]

179 It has been recognised that 'in family property dealings', there may 'be potential for overlap between proprietary estoppel and failed joint endeavour doctrines'.[54]

180 The parties referred me to additional cases where a joint endeavour constructive trust was alleged. In Hill v Hill,[55] the son, Peter, had lived (together with his wife and child) in his mother, June's, house for approximately 12 years. Over that period, Peter contributed a capital input of $70,000, did some maintenance and paid some rates, while June agreed to be guarantor for a loan associated with Peter's business. The relationship broke down, without attributable blame (Campbell J adopting the approach from Bennett), and Peter moved out. At that time, June entered into a contract to sell the house for $205,000. Justice Campbell found Peter failed to establish that it was unconscionable for June to retain the full beneficial title of the property.[56]

181 Nolan v Nolan[57] involved a farming enterprise run by Tony's parents. Tony was married to Donna for 18 years, and during this time they worked for the enterprise owned by Tony's parents and lived on the property. Tony and Donna's relationship broke down without attributable blame and Donna sought an equitable interest. A joint endeavour constructive trust was recognised in favour of Donna as it was held to be unconscionable for Tony and his parents to receive the full benefit of the enterprise which Donna had contributed to.[58]

182 In Nowland v Nowland,[59] a son and mother entered into an informal oral agreement in the late 1990s to manage cattle on two properties, one of which was owned entirely by the mother, and the other owned by the pair as tenants in common. It was agreed the son would manage the cattle and receive 50 percent of sale proceeds, as well as live in his mother's house, rent free. The relationship broke down sometime after 2007. From 2014 the son was threatening to his mother, including threats to kill, and protection orders were made under the Domestic and Family Violence Act 2012 (Qld) against him. The properties were sold and the son subsequently asserted an equitable interest based upon his contributions in the form of labour and farm management improving the value of the property. Although Ryan J quoted the approach of Bryson J in Bennett, emphasising 'gross cases involving criminality or similarly reprehensible behaviour', and recognised that there was evidence of reprehensible conduct by the son, her Honour noted that the mother did not contend her son was to blame for the end of their partnership.[60] Justice Ryan observed the son had presented no evidence which would allow her to draw a conclusion that his labour and management lead to an increase in the value of the farm, and there was only general assertions as to the parties' financial and non-financial contributions. Her Honour held that in circumstances where the son had lived rent-free for decades, and the mother bore the bulk of costs and expenses, she was not satisfied the son was entitled to an equitable interest based on a joint endeavour.[61]

183 A common intention constructive trust will arise:

to prevent the unconscientious denial by the legal owner of another party's rights ... where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention.[62]

184 Although the ongoing existence of such a claim has been questioned on account of a degree of overlap with proprietary estoppel,[63] it continues to be recognised as a distinct principle.[64]

185 In Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc,[65] McMillan J explained that a court will construe a common intention constructive trust where:

a) there is an actual or inferred common intention of the parties as to their beneficial interest in a property;

b) there has been detrimental reliance on that common intention by the claimant; and

c) it would be an equitable fraud on the claimant to deny his or her interest in the property.[66]

186 The intention need not concern a specific share of the property, and it may be 'found or inferred from the party's contemporaneous words and conduct, also having regard to the surrounding circumstances and context in which they were uttered or performed'.[67] Further, the intention need not be to designate a specific share of the property - it is sufficient there was an intention the claimant have a beneficial interest.[68]

187 A common intention constructive trust is based upon the parties intentions, and may be relied upon where the formalities for a contract or express written trust are not satisfied.[69]

188 Justice McMillan elaborated on the principle of detrimental reliance, drawing from principles concerning equitable estoppel, as follows:

The question of detriment is assessed as at the time a party seeks to depart from the common intention. The relevant detriment is not the mere loss flowing from the non-fulfilment of the common intention. The detriment is any material disadvantage incurred by [the claimant] flowing from any action or inaction taken as a result of relying on the common intention, should the common intention be repudiated by [the property owner]. Reliance on the common intention is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. The requirement to identify [the claimant's] detriment must nonetheless be approached as part of a broad inquiry as to whether departure from the common intention would be unconscionable in all the circumstances.[70]

189 In Shepherd v Doolan,[71] White J recognised that the claimant must show they acted to their 'detriment in a way referable to the agreement or intention'. In this regard, his Honour noted that in Green v Green,[72] Gleeson CJ approved the 'less stringent' test of Sir Nicholas Browne-Wilkinson VC rather than that of Norse LJ in Grant v Edwards,[73] that:

[O]nce it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house.[74]

190 The parties referred me to other cases where a common intention constructive trust was alleged.

191 In Parsons v McBain,[75] the full Federal Court determined two appeals, on almost identical facts, between two brothers, and their wives. The facts of the appeal were that Peter had acquired and owned a property in his own name, prior to marriage. When Peter married Bronwyn 10 years later, they used the property as their matrimonial home, and agreed it would be owned by them equally. Bronwyn made financial contributions towards Peter's loan in respect of the property. There was a common intention between Peter and Bronwyn that it be held by Peter on trust for both of them equally. Prior to Peter being declared bankrupt, he transferred the property into Bronwyn's name. The Court held that as a common intention constructive trust exists prior to a court declaring it to be so, Bronwyn was entitled to her half interest in the property.[76]

192 In Ogilvie v Ryan,[77] a beneficial interest in a property was declared in respect of the defendant, who had agreed to live with the purchaser of a house, on the common understanding that she would care for the owner for the rest of his life, and that in return, the house would be hers for as long as she lived. The defendant carried out her part of the arrangement until the time of the owner's death, and received no remuneration for her services. It was determined that the property was held on trust for the defendant during her life, to occupy rent free for as long as she desired.[78]

193 In Secretary, Department of Social Services v Hulett,[79] a mother and father promised their three daughters that, where one parent died and the other could not live independently, the surviving parent would give the daughters the deceased parent's half share of the proceeds from selling the family home, in exchange for care and accommodation. Following the mother's death, the father sold the home, distributed funds respectively, and moved in with one of his daughters. Centrelink treated the transfers as gifts under the Social Security Act 1991 (Cth), and reduced the father's pension. The father argued the home was subject to a common intention constructive trust, so the payments were trust distributions, not gifts. The Court held there was detrimental reliance by the daughters, and a common intention constructive trust was established.

194 Relevant to this proceeding, proprietary estoppel can encompass estoppel by encouragement through the making of a promise, as well as estoppel by acquiescence.[80]

195 In Kramer v Stone,[81] the majority of the High Court (Gageler CJ, Gordon, Edelman, and Beech-Jones JJ) described proprietary estoppel by encouragement as:

an estoppel which affords relief in equity 'found in an assumption as to the future acquisition of ownership of property ... induced by representations upon which there had been detrimental reliance by the plaintiff'.[82]

196 The elements necessary to establish a proprietary estoppel by reason of an encouragement from a promise, were identified by the majority in Kramer as being:

(i) a clear and unequivocal promise was made by the promisor to the promisee, as to some future conduct;[83]

(ii) a reasonable person in the promisor's position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct;[84]

(iii) the promisee relied upon the promise by acting, or omitting to act, in the manner that would have been expected. It is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee's action or omission, but that the promisee would not have acted, or omitted to act, in the absence of the promise. That is, the promisee's reliance 'made a difference to [the promisee] taking the course of action or inaction';[85] and

(iv) the promisee will suffer detriment if the promise is not fulfilled. That is, the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made.[86]

197 Once those elements are satisfied, it may be said that 'conscience requires'[87] the promisor redress the detriment suffered by the promisee. The majority in Kramer observed, the description of circumstances as unconscionable 'is to characterise the result rather than to identify the reasoning that leads to the application of that description'.[88]

198 The facts of Kramer concerned a farm on which Mr Stone worked as a share farmer, earning irregular and meagre income. He was made a promise by the farm owner that he would inherit the farm upon her death, and in reliance on that promise, lived and worked on the farm for the next 23 years. In doing so, he gave up more remunerative work, failed to develop new employment skills, and restricted his social and domestic life.[89] Although the farm owner expected Mr Stone to rely upon her promise, she failed to devise the farm to him on her death.[90] The majority held the circumstances gave rise to an equitable estoppel by encouragement against the estate of the owner, requiring the title to be held on trust for Mr Stone.[91]

199 Regarding estoppel by acquiescence, the majority in Kramer, referred with apparent approval to a statement from Discount & Finance Ltd v Gehrig's (NSW) Wines Ltd,[92] that the doctrine 'prevents a person, who has knowingly permitted another to act, through mistake, to his own detriment and to the advantage of the former, from profiting by the other's mistake'.[93] The elements of an estoppel by acquiescence were then identified as follows:

The elements required for B to establish an estoppel by acquiescence against A ... (1) B must be mistaken as to their legal rights; (2) B must expend money, or do some act, on the faith of their mistaken belief; (3) A must know of their own rights; (4) A must know of B's mistaken belief; and (5) 'A must encourage B in [B's] expenditure of money or other act, either directly or by abstaining from asserting [a] legal right'.[94]

200 In Giumelli v Giumelli,[95] Robert Giumelli brought a claim against his parents, asserting that they held part of their property on trust for him, arising from promises made during his years of unpaid work and extensive contribution to the family land. Robert claimed his parents promised him a portion of the land, later permitted him to build a house which they promised would be his, and promised to subdivide the property to include that house and an orchard, provided he remained on the property and declined alternative employment. In reliance on the promise, Robert remained in the family partnership, and worked to improve the property. Following a dispute over his choice of spouse, Robert left the property, and his brother subsequently occupied the land in question. The High Court affirmed the finding below that the parents held the property on constructive trust for Robert.[96] However, Robert was awarded equitable compensation in the amount proportionate to the value of the promised lot, rather than acquisition of title to land, which would have involved subdivision. The High Court had regard to the circumstances, and qualification to Robert's 'prima facie entitlement' was required, to avoid injustice to other family members and relief that went beyond what was required for conscientious conduct of his parents.[97]

201 In Sidhu v Van Dyke,[98] Mr Sidhu made representations to Ms Van Dyke, both orally and in writing, that he would gift the house in which she resided to her.[99] Ms Van Dyke claimed detrimental reliance as she lost the opportunity to obtain a property settlement in her divorce, spent eight and half years improving the property, did unpaid work and did not seek full-time employment. During this time Ms Van Dyke paid rent, but in an amount lower than the market rate.[100]

202 The majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) held that Ms Van Dyke was induced to remain at the property and to continue to work for Mr Sidhu and his wife by the assurances which he made.[101] In discussing the measure of relief, the majority discussed the difference between detriment in the form of a 'relatively small monetary outlay', and that involving 'life-changing decisions with irreversible consequences':

If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite:

[H]ere, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature ... beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based.[102]

203 In Inwards v Baker,[103] the English Court of Appeal held that a son had an equitable interest in land owned by his father. The son had been encouraged by his father to build a bungalow on the father's land, with a belief and expectation that he would be permitted to live in the bungalow for all of his life, or as long as he wished. The Court held that where an owner of land requests or allows another to expend money on the land, under the expectation created or encouraged by the owner that they would be allowed to remain on the land, an equity arises allowing the person to stay.[104]

204 In McNab v Graham,[105] pursuant to the deceased's will, the respondents were granted a life estate in certain property. The respondents claimed that the executors held the property on trust for them absolutely, relying upon representations the deceased had made to them during his lifetime. The respondents had moved to the property at the request of the deceased, under an arrangement where they agreed to look after the deceased and his wife, and paid low rent. The deceased promised that upon his death, the property would be left to the respondents. The trial judge determined that the executors were estopped from denying that the respondents had title to the property; a conclusion which was upheld upon appeal.[106]

205 In Harris v Harris,[107] the Court of Appeal summarised the applicable principles concerning relief in a case of proprietary estoppel, including that while the promisee is prima facie entitled to have the promisor held to the promise or expectation, the Court will consider 'all the circumstances to determine whether it is necessary to mould or modify the relief to avoid going beyond what is required for conscientious conduct, or to avoid injustice to others'.[108] Further, that 'the character of the promise/expectation is also a relevant consideration, including whether it is vague or imprecise'.[109]

206 At times, courts have specifically recognised that 'relief may be refused or reduced if the plaintiff's equity has been diminished by later events'.[110]

207 In Sledmore v Dalby[111], a son-in-law, Mr Dalby, sought to claim an equitable interest in a house owned by his late wife's parents, which he had made improvements to, after being told the house would belong to him and his wife one day. Mr Dalby had lived in the house rent free for 18 years. It was held that any equitable interest Mr Dalby may have had in the house, had long been exhausted. Mr Dalby was in employment, and his position was compared to his mother-in-law, Mrs Sledmore, who was elderly, vulnerable and had a pressing need for the house.[112] This approach has since been described as an equity being 'amortised'.[113]

208 In Milling v Hardie,[114] Macfarlan JA cited Sledmore in support of the following proposition:

Whilst a plaintiff's effecting of improvements in reliance upon a defendant's conduct may be of considerable significance soon after the improvements are made, the passage of time before the estoppel is sought to be enforced may indicate that the plaintiff has had the full benefit of those improvements and that they have effectively been amortised.[115]

209 In that case, Mr Milling owned a rural property on which a homestead was located. At his invitation, it was agreed that his daughter and her husband (the Hardies) would move into the homestead. The Hardies did not pay rent, or rates, however they carried out and paid for improvements to the homestead and its surrounds with Mr Milling's consent. The Hardies claimed they carried out the improvements as Mr Milling had promised to transfer the property to them at some point, either during his lifetime, or in his will. A dispute arose and the Hardies commenced proceedings claiming an interest in the property founded upon proprietary estoppel. The trial judge did not accept Mr Milling made the alleged promises, but found his conduct encouraged the Hardies to occupy and improve the homestead which gave rise to reasonable expectations on their part, which they acted in reliance on. The trial judged declared that Mrs Hardie was entitled to a non-exclusive licence to use the homestead during Mr Milling's lifetime, and then upon his death was entitled to two blocks of land on which the homestead was located.[116]

210 On appeal, the New South Wales Court of Appeal held that Mr Milling's approval of the improvements to the property, carried with it an assumption that the Hardies would occupy the homestead and its surrounds for a substantial period to enable the benefit of those improvements.[117] On the question of relief, Macfarlan JA reasoned:

The Hardies have had the benefit of occupation of the Weeraman homestead for over 20 years and, depending on when the improvements were effected, they have had use of them for a decade or, in some cases, considerably more. In that time, their two eldest children have grown to adulthood and their third has reached about 16 years of age. They have paid no rent to Mr Milling for their occupation and he has paid all relevant rates and taxes. Effectively, the Hardies' expenditure on improvements can be regarded as having been largely, if not wholly, amortised over the period of occupation.[118]

211 Taking into account all of the circumstances, his Honour determined that the Hardies' equity would be satisfied by Mr Milling being estopped from denying an entitlement of Mrs Hardie and her invitees to occupy the homestead and its surrounds during his lifetime.[119]

212 In Salehi v Salehi, [120] Daly AsJ rejected the notion that based on Sledmore, when determining the appropriate remedy, a claimant's rent-free occupation must necessarily be taken into account. Rather, her Honour viewed Sledmore as representing an 'orthodox application of the principle that the question before the Court is what remedy is necessary to alleviate the unconscionable conduct of the estopped party'.[121]

213 It is a long established equitable maxim that a party who comes to equity must have clean hands.

214 In Klein v Mochkin,[122] the Court of Appeal approved the following summary of the equitable doctrine requiring clean hands, as stated by Campbell J in Black Uhlans Inc v New South Wales Crime Commission:[123]

Such a maxim provides an explanation for the circumstances in which equity recognises rights, and confers remedies, across a broad range of equity's jurisdiction.

...

The unclean hands maxim requires the Court to look at the conduct of the litigant who seeks the assistance of equity, rather than the conduct of the defendant. Further, it is conduct which the litigant who seeks the assistance of equity has engaged in in the past which is required to be looked at. In this way it differs from the maxim that he who seeks equity must do equity, which looks at the conduct which a litigant who seeks the assistance of equity undertakes to engage in in the future.[124]

215 The doctrine operates as a discretionary defence to a claim for equitable relief.[125] Its operation is not triggered by any act of wrongful conduct by the defendant.[126] Rather, there needs to be:

(i) an 'immediate and necessary relation to the equity sued for';[127] and

(ii) the conduct must be both unlawful and immoral.[128]

216 In Meyers v Casey, the High Court distinguished cases where the right asserted is independent from the alleged misconduct, and those cases where:

[T]he right relied on, and which the Court of equity is asked to protect or assist, is itself to some extent brought into existence or induced by some illegal or unconscionable conduct of the plaintiff, so that protection for what he claims involves protection for his own wrong. No Court of equity will aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim.[129]

217 A party who comes with unclean hands, may 'wash their hands' of the impropriety.[130] This can be done by demonstrating that 'its misconduct has ceased, or that the misconduct occurred by accident and will not recur.'[131]

218 Having outlined my findings of fact and the relevant legal principles, I will now turn to the questions posed in paragraph [8] above.

219 The relevant question for me to determine is whether John has established a joint endeavour constructive trust? If so, should equity offer him relief? If so, what is the appropriate relief?

220 John says there was a joint endeavour to improve the property through the building works. It was submitted that regardless of whether or not there was an express intention or agreement between John and Valerie, the Court should be satisfied of this joint endeavour given the contributions John made over time. John claimed it would be unconscionable for Valerie to attain the whole benefit of the joint endeavour, which resulted in substantial improvement to the property.

221 Valerie denied there was any such joint endeavour, and in the alternative said that if there had been, it ended with attributable blame due to John's conduct.

222 Relevant to my determination of this aspect of John's claim, I note the following.

223 Valerie purchased the property in 1979 with her own funds. For the last 46 years, Valerie has paid for the rates and utilities relevant to the property.

224 John's contribution to the building works was done through:

(a) his expertise in designing and managing building works;

(b) his manual labour;

(c) paying for the labour of others; and

(d) purchasing of some building supplies.

225 Save for John's oral evidence that the items from the Wunghnu church were purchased for $15,000, no other evidence was given by John as to the value of his contributions towards the building works.

226 John and Valerie did not pool their finances. It was also not a situation where John gave up paid employment to perform the building works on the property. The evidence was that John did such work on weekends and in holiday times, over three decades, and for much of that time, he lived on the property, rent and expense free. For a prolonged period, John enjoyed the benefits of the improvements which he made to the property - most notably the top floor of the two story building, and the workshop.

227 Further, John did not provide caring services for Valerie over the period upon which they both lived on the property - the reverse seems to have been the situation, with Valerie stating she did tasks such as laundry, grocery shopping and driving John when he did not have a driver's licence.

228 When all of those matters are considered together, John has failed to satisfy me there was a joint endeavour between himself and Valerie. A joint endeavour trust is not required to prevent Valerie taking wrongful or undue advantage of John.

229 If to the contrary, I had been satisfied that there was a joint endeavour, it was submitted by Valerie that the joint endeavour ended with attributable blame by John, such that equity should not intervene.

230 In response to this submission, John relied upon an academic article which proposed the better test for disqualification from relief is where there has been an intentional hijacking of the joint endeavour with the intention of profiting from it.[132] I am not so persuaded, as such a test is substantially narrower than that contemplated by Deane J in Muschinski. It is more appropriate that the ordinary meaning of the term 'attributable blame' is applied. As was observed by Bryson J in Bennett, and Ward J in Austin, a sensible level of caution and tolerance is to be exercised before finding attributable blame, and I approach this task mindful of that warning.

231 Even if I am wrong in not finding a joint endeavour existed, having evaluated the facts as I have found them to be, I am satisfied that John's actions towards Valerie, amounted to attributable blame. This was not a situation where Valerie and John's personal relationship simply soured through incremental events, such that John and Valerie decided that different living arrangements were required. John threatened to kill Valerie, and she was frightened of him. After a contested hearing, a magistrate determined that Valerie was a person who required protection from John, such that he must remain off the property and stay away from Valerie for a period of five years. Even though John was not criminally charged with this threat, it can be fairly described as reprehensible behaviour. When that threat is considered together with the other acts of domestic violence committed against Valerie, I am satisfied that if there had been a joint endeavour between John and Valerie, it ended due to John's attributable blame.

232 In view of the above, John has failed to satisfy me that that equity should offer him any relief on the basis that there was a joint endeavour constructive trust.

233 The relevant question for me to determine is whether John has established a common intention constructive trust? If so, should equity offer him relief? If so, what is the appropriate relief?

234 John claimed there was a common intention, implied by years of conduct and cooperation between himself and Valerie to improve and renovate the property, including with the construction of the two story building and the garage. In return, John would be able to live on the property for life, or as long as he desired. John contended that he has suffered detrimental reliance over 30 years, and it would be unconscionable for Valerie to now renege on their common intention. John submitted the Court should impose a constructive trust over the property whereby John has a 50% interest, as tenants in common. Alternatively, the Court could consider an appropriate equitable remedy.

235 Valerie denies there was such a common intention. In the alternative, Valerie submitted that any beneficial interest from detrimental reliance has since been amortised.

236 As I stated above, I am not satisfied Valerie intended to give John a beneficial interest in the property, if he helped her improve it. There was a common understanding that the property should be improved. Valerie permitted John to live there rent and expense free, as she did her other children. As is evident in the construction of the two story building, the intention was for it to be constructed for the mutual benefit of John, Valerie and Judith. For those reasons, the first requirement identified in Imam Ali has not been met.

237 However, even if I am wrong in that finding, and a common intention was to be inferred, and detrimental reliance by John established (based on his belief Valerie intended to give him a beneficial interest, and given Valerie did not discourage him from spending time and money on the building works) then for the reasons that follow, I am not satisfied it would be an equitable fraud to deny John an interest in the property.

238 In contrast to many of the decided cases which the parties referred me to, save for John's oral evidence as to the expenditure of $15,000 for the Wunghnu church, he did not otherwise offer any evidence to assist in the valuation of his financial and non-financial contributions to the building works. There is simply insufficient evidence to assess the value of John's contributions towards the building works.

239 John lived on the property, rent and expense free for decades: over 36 years, starting from when he began living there intermittently, and on a permanent basis for approximately 24 years. During those lengthy periods, John enjoyed the benefit of the improvements he made to the property. John lived on the upper floor of the two story building, his children sometimes stayed on the mezzanine level of the church, and he and his children enjoyed the use of the workshop, including the car hoist.

240 Given the length of time over which John has enjoyed the benefit of living on the property, rent and expense free, and given the insufficient evidence as to the value of his contributions, it could not be said there would be an equitable fraud on John if he was denied a beneficial interest in the property.

241 The relevant question for me to determine is whether John has established a proprietary estoppel? If so, should equity offer him relief? If so, what is the appropriate relief?

242 John says that there were two promises made - the first in 1991, and the second during the Christmas 1999 discussion. John submits that he relied upon these promises and contributed to the building works for over 30 years. John contends that he would suffer a detriment, if Valerie was permitted to resile from her promises.

243 Further, it was contended that John had built 'his entire two story home' on the property, and there would be an unjustified windfall gain to Valerie if John was denied an equitable interest in his home.

244 Valerie denies the promises. In the alternative, Valerie submitted that any beneficial interest from detrimental reliance has since been amortised.

245 As I have stated above, I am not satisfied either promise was made by Valerie to John. As such, the first requirement identified in Kramer has not been met.

246 Further, the evidence does not support John's claim that the two story building was to be entirely his home. As previously noted, the ground floor had a laundry for all to use, a water tank, and an area which was initially constructed for Judith's use.

247 Although John did not expressly advance an alternative claim based on estoppel by acquiescence, this can be inferred from his submission that equity ought not allow Valerie to obtain an unjustified windfall gain.

248 Accepting that John believed that Valerie would let him live in the two story building rent and expense free for life if he constructed it, and that John expended some of his money and labour in furtherance of that belief, then to establish estoppel by acquiescence, John must establish that Valerie knew of John's mistaken belief that he would have such a legal right, and that Valerie did not discourage John from proceeding with the construction, on that mistaken belief. John has failed to satisfy me of such knowledge or belief by Valerie.

249 Further, for the same reasoning given in paragraphs [239]-[240], I am satisfied that any benefit which accrued to John (from either his reliance on the claimed promises, or by acquiescence), has been amortised over the extended years upon which he lived at the property, rent and expense free, and, during which time, he and his family enjoyed the benefits of the improvements he had made. Put another way, at this time, given the benefits John enjoyed over those years, an equitable remedy is not required to alleviate any of the conduct alleged by John against Valerie.

250 Valerie submitted that the maxim requiring a plaintiff to come to a court of equity with clean hands, ought be engaged, and the Court should exercise its discretion to refuse John the equitable relief he seeks.

251 John denied any improper conduct. However, John submitted that even if the Court was satisfied of what was alleged against him, the conduct complained of had nothing to do with the equity sued for. That is, it was said that the bulk of the building improvements relevant to the joint endeavour and common intention, had been completed prior to the 'souring' of the relationship.

252 Separate to the reasons I have already given, I am satisfied I should exercise my discretion and allow Valerie's unclean hands defence to prevent John from being awarded an equitable interest in the property.

253 Over many years, Valerie has been a loving and generous mother, opening her property to her children and grandchildren. Valerie is now elderly, and in the final years of her life. I reject John's suggestion that the relationship between him and Valerie had simply soured. I accept Valerie's evidence that she was frightened of John. I am satisfied that John threatened to kill Valerie, and that Valerie was a victim of domestic violence by John.

254 Such conduct is both reprehensible, and inexcusable. The consequence of such legal and moral impropriety is that John cannot be seen as coming to this Court with clean hands.

255 I reject John's submission that such conduct has nothing to do with the equity sued for. John's exclusion from the property is the very reason he now seeks assistance and protection from the Court. John is no longer living on the property solely as a consequence of his immoral conduct.

1. Considering all of the above, John has failed to satisfy me that it would be unconscionable to allow Valerie to maintain full beneficial ownership of the property. I therefore dismiss John's claim.
2. I will hear from the parties as to what consequential orders should be made.

[1] For clarity, and without intending any disrespect, I will refer to the Mulholland family members by their first names in this judgment.

[2] Identified as Volume 02856 Folio 151.

[3] During the trial, this distancing was maintained through coordination between my associates, and the parties' legal representatives.

[4] On the first day of trial, John sought leave to rely upon a further report of Mr Collins dated 15 September 2025. In this report, Mr Collins offered an opinion as to the current market value assessment range of the property, excluding the additions made by John, together with a market rental value assessment. Valerie objected to John relying on this further opinion. I refused John leave, and provided oral reasons.

[5] Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298, 308.

[7] Evidence Act 2008 (Vic) s 140 ('Evidence Act'); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 343-4 (Latham CJ), 362-3 (Dixon J) ('Briginshaw').

[8] Briginshaw (n 7) 343-4 (Latham CJ), 362-3 (Dixon J).

[9] Family Violence Protection Act 2008 (Vic) s 5(a)(i)-(vi), see also s 5(b).

[10] Ibid s 7.

[11] Evidence Act (n 7) s 140; Briginshaw (n 7).

[12] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 620 ('Muschinski').

[13] Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, 149 ('Baumgartner'); see Abedini v Commissioner of Australian Federal Police [2024] VSCA 230, [80] (McLeish, Lyons and Kaye JJA) ('Abedini'), referring to Muschinski (n 12) and Baumgartner (n 13); Sobey v Sobey [2016] VSCA 36, [22]-[23] (Ferguson JA, Tate and Santamaria JJA agreeing).

[14] Muschinski (n 12) 622.

[19] Baumgartner (n 13) 148-9 (Mason CJ, Wilson and Deane JJ), 155-6 (Gaudron J); see Abedini (n 13) [82].

[20] Baumgartner (n 13) 150 (Mason CJ, Wilson and Deane JJ).

[22] Nowland v Nowland [2020] QSC 151, [180] ('Nowland').

[23] Sivritas v Sivritas [2008] VSC 580; (2008) 23 VR 349.

[24] Ibid 374 [132] (citations omitted), as quoted with apparent approval in Zerky v Zerky [2020] VSCA 336, [83] (Tate, Kyrou and Niall JJA) ('Zerky').

[25] See for example, Swettenham v Wild [2005] QCA 264 (Atkinson J, McMurdo P and Williams JA agreeing); Hill v Hill [2005] NSWSC 863 (Campbell J) ('Hill'); Nolan v Nolan [2015] QCA 199 (Boddice J, Gotterson JA agreeing) ('Nolan'); Hatziminas v Hatziminas [2024] VSC 513 (Quigley J) .

[26] Bennett v Horgan (Supreme Court of New South Wales, Bryson J, 3 June 1994) ('Bennett').

[28] Adopted in Hill (n 25) [35]; McKay v McKay [2008] NSWSC 177, [16] (Brereton J); Musgrave v Musgrave [2001] NSWSC 134, [32]-[33] (Macready M); Kriezis v Kriezis [2004] NSWSC 167 [23] (Burchett AJ); Payne v Rowe [2012] NSWSC 685, [86], [92] (Ball J) (conduct not 'reprehensible'); see also Dean v Aylward [2017] NSWSC 972, [48]-[49] (Parker J) (no gross misconduct or criminality); Nowland (n 22) [194] (evidence of reprehensible conduct, but not pressed); see also Ledwos v Angilley [2001] NSWSC 618, [15], [49] (Macready M), where a claim of constructive trust was not pursued, with Macready M commenting, in circumstances where the defendant left the plaintiff on account of physical violence, that there may have been attributable blame.

[29] [2019] ACTSC 178 (Mossop J) .

[32] [2011] NSWSC 174 (Einstein J).

[36] [2009] NSWSC 92, [52] (Austin J).

[38] [2005] NSWSC 867 (Young CJ).

[41] [1995] SASC 5064; (1995) 64 SASR 396 (Perry J) .

[43] [2011] NSWSC 1059 (Ward J) ('Austin'); see also Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460, [95]-[99] (Ward J).

[44] Austin (n 43) [168]-[172].

[45] Ibid [170], referring to Gazzola v Gazzola [1990] HCA 13; (1990) 92 ALR 45.

[50] [2022] NSWSC 1690 (Parker J) ('Makaritis').

[52] Hellenic Property Holdings Pty Ltd v Makaritis [2025] NSWCA 13, [94] (Mitchelmore JA, Basten AJA and Griffiths AJA agreeing).

[53] Pavlis v Pavlis [2022] NSWCA 281, [44] (White JA, Macfarlen JA and Basten AJA agreeing). See also Meiners (by her next friend the Public Trustee) v Gunn (No 2) [2025] WASC 529 [658]-[668] (Seaward J).

[54] Makaritis (n 50) [179] (Parker J)).

[56] Hill (n 25) [48].

[57] [2014] QSC 218 (Lyons J) (appeal as to the division of assets upheld in Nolan (n 25) (Boddice J, Gotterson JA agreeing)).

[59] Nowland (n 22).

[62] Shepherd v Doolan [2005] NSWSC 42, [31] (White J), citing Grant v Edwards [1986] Ch 638 ('Grant'); Green v Green (1989) 17 NSWLR 343 ('Green'); Maharaj v Chand [1986] AC 898, 907.

[63] See Zerky (n 24) [76] (Tate, Kyrou and Niall JJA); Secretary, Department of Social Services v Hulett [2025] FCA 23, [5] (Derrington J) ('Hulett'); Galati v Deans [2023] NSWCA 13, [53]-[58] (White JA, Macfarlan JA agreeing with the reasons of Basten AJA) ('Galati'); Austin v Keele (1987) 10 NSWLR 283, 290.

[64] King v Fister [2022] QCA 47 (Davis J, Sofronoff P and Mazza AJA agreeing) [25]-[26]; Dolan v Dolan [2023] VSCA 136, [94]-[95] (Niall, Osborn and Kaye JJA) ('Dolan'); Galati (n 63) [53]-[56].

[65] [2018] VSC 413 ('Imam Ali').

[66] Ibid [402], as quoted in Dolan (n 62) [94]-[95] and adopted in Nathan v Williams [2020] QCA 138 [24] (Brown J, Sofronoff P and Philippides JA agreeing).

[67] Imam Ali (n 65) [403] (citations omitted).

[71] [2005] NSWSC 42, [40] (White J); quoted with approval in Galati (n 62) [54].

[73] Grant (62) 648.

[74] Ibid 657, as adopted in Green (n 62) 357 (Gleeson CJ, Preistley JA agreeing). Norse LJ's test, at 648, was that to qualify as acting on the common intention, the conduct must be such that the plaintiff could not reasonably have been expected to embark upon it unless she were to have an interest in the property.

[75] [2001] FCA 376; (2001) 192 ALR 772 (Black CJ, Kiefel and Finkelstein JJ) .

[77] [1976] 2 NSWLR 504 (Holland J).

[80] See JD Heydon et al, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (LexisNexis, 5th ed, 2014) [17-065], the two doctrines are noted to be derived from Dillwyn v Llewelyn [1862] EngR 908; (1862) 4 De G F & J 517 and Ramsden v Dyson (1866) LR 1 HL 129 respectively; see also PW Young, C Croft and ML Smith, On Equity (Lawbook Co, 2009) [12.180].

[81] [2024] HCA 48; (2024) 281 CLR 484 ('Kramer').

[82] Ibid 500 [32] (Gageler CJ, Gordon, Edelman, and Beech-Jones JJ), citing Sidhu v Van Dyke (2014) 251 CLR 505, 511 [2] (French CJ, Kiefel, Bell and Keane JJ) ('Sidhu'), quoting Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101, 112 [6] (Gleeson CJ, McHugh, Gummow and Callinan JJ) ('Giumelli').

[83] Kramer (n 81) [37].

[85] Ibid 502 [39], quoting Sidhu (n 82) 531 [91] (Gageler J).

[86] Ibid 502-3 [40]; see also Laird v Vallance (as Admin for estate of Laird, (decd)) [2023] VSCA 138, [51], [100] (Beach and Osborn JJA).

[87] Kramer (n 81) 503 [41].

[88] Ibid, quoting Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395, 409 [34].

[89] Kramer (n 81) 503-4 [42].

[92] [1940] NSWStRp 52; (1940) 40 SR (NSW) 598 ('Gehrig's').

[93] Kramer (n 81) 507-8 [54], quoting Gehrig's (n 90) 603 (Jordan CJ).

[94] Kramer (n 81) 508 [55], quoting Brand v Chris Building Co Pty Ltd [1957] VicRp 91; [1957] VR 625, 628 which referred to, inter alia, Ramsden v Dyson (1866) LR 1 HL 129.

[95] Giumelli (n 82).

[96] Ibid 112 [5]-[6], 125 [51] (Gleeson CJ, McHugh, Gummow and Callinan JJ, citing, inter alia, Dillwyn v Llewelyn [1862] EngR 908; (1862) 4 De GF & J 517).

[97] Giumelli (n 82) 125 [50].

[99] Ibid 513-4 [13]-[15], [19] (French CJ, Kiefel, Bell and Keane JJ).

[100] Ibid 513 [10]-[11] (French CJ, Kiefel, Bell and Keane JJ).

[101] Ibid 528 [78] (French CJ, Kiefel, Bell and Keane JJ).

[102] Ibid 529-30 [84], quoting Donis v Donis ([2007] VSCA 89; 2007) 19 VR 577, 588-9 [34] (Nettle JA) ('Donis'); cited with apparent approval in Kramer (n 82) 503 [40].

[103] [1965] EWCA Civ 4; [1965] 2 WLR 212 .

[104] Ibid 216 (Denning MR, Dankwerts and Salmon LJJ agreeing).

[105] [2017] VSCA 352; (2017) 53 VR 311 (Tate JA, Santamaria and Keogh AJA agreeing).

[107] [2021] VSCA 138 (Beach , Niall and Kennedy JJA) ('Harris').

[108] Ibid [79], citing Giumelli (n 82), 123 [42], 125 [50]; Donis (n 102), 588 [32], 594 [56]; see also Kronenberg v Macaulay [2025] NSWCA 195, [207]-[210] (Leeming JA, Mitchelmore and Free JJA agreeing).

[109] Harris (n 107), [79] (Beach, Niall and Kennedy JJA).

[110] Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483, 493 [61] (Handley AJA, Giles JA and Allsop P agreeing) ('Delaforce'), adopted in Harrison v Harrison [2013] VSCA 170, [140] (Garde AJA, Tate and Harper JJA agreeing).

[111] [1996] EWCA Civ 1305; (1996) 72 P & CR 196 ('Sledmore').

[112] Ibid 204-5 (Roch LJ, Butler-Sloss and Hobhouse LJJ agreeing).

[113] Delaforce (n 110) 493 [61]; Milling v Hardie [2014] NSWCA 163, [55] (Macfarlan JA, Beazley P agreeing) ('Milling'), citing Duic v Duic [2013] NSWCA 42, [32] (Macfarlan JA, Beazley and Barrett JJA agreeing. The improvements there were limited and to the benefit of the claimant).

[114] Milling (n 113).

[118] Ibid [69] (Macfarlan JA, with Beazley P and Sackville AJA agreeing).

[120] Salehi v Salehi [2023] VSC 535, [229] (Daly AsJ) .

[122] Klein v Mochkin (2024) 76 VR 1 (Kennedy, Walker and Macaulay JJA) ('Klein').

[123] Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060 (Campbell J) ('Black Uhlans Inc').

[124] Klein (n 122), 17 [62], quoting Black Uhlans Inc (n 123) [158]-[159].

[125] Nelson v Nelson (1995) 184 CLR 538, 550; see also Black Uhlans (n 123) [181].

[126] Klein (n 122) [63].

[127] Dering v Earl of Winchelsea (1787) I Cox 318, 319-20 (Eyre CB) ('Dering'), as quoted in Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90, 123 (Isaacs J) ('Meyers'); see also Klein (n 122) [63]; Black Uhlans (n 123) [181]; Milfoil Pty Ltd v Commonwealth Bank of Australia Ltd [2019] VSC 504, [562]-[569] (Lyons J) ('Milfoil').

[128] Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in liq) [2018] VSCA 316; (2018) 58 VR 91, 123-4 [117-118] (Kyrou, McLeish and Hargrave JJA), quoting Dering (n 127) 319-20; see also Black Uhlans (n 123) [181].

[129] Meyers (n 127) 124; see also Attwood v Small (1838) 6 Cl & Fin 232, as quoted with apparent approval in Anaconda Nickel Ltd v Edensor Nominees Pty Ltd [2004] VSCA 167; (2004) 50 ACSR 679, 689 [37] (Buchanan JA, Eames JA and Coldrey AJA agreeing); see Milfoil (n 127) [565].

[130] Klein (n 122) [64].

[132] The 'Joint Endeavour Constructive Trust' Doctrine in Australia: Deconstructing Unconscionability, Ying Khai Liew (2021) 42(1) Adelaide Law Review.