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[2013] NSWSC 926
Supreme Court of NSW
2013-06-12
Hallen J, Chief Justice J, Mr J
Original judgment source is linked above.
Introduction - The Claims 1HIS HONOUR: This litigation involves an unfortunate dispute between siblings, who, as the folio identifier records, are the registered proprietors, as tenants in common in equal shares, under the Real Property Act 1900, of a strata title unit situated at Clovelly ("the Clovelly unit"). The property is a two-bedroom unit situated in a small block comprising six units. 2The Plaintiff filed a Summons on 3 July 2012 in which she sought orders under s 66G of the Conveyancing Act 1919, for the appointment of one trustee for sale of the Clovelly unit. (That one individual would be appointed trustee is inconsistent with s 66G(3)(a) of the Conveyancing Act, but for reasons to which I shall come, this is not of immediate concern.) Consequential orders were also sought as to the destination of the net proceeds of sale of the Clovelly unit. 3The Defendant filed a Cross-Summons on 24 July 2012, and subsequently, on 20 August 2012, a Statement of Cross-Claim, in which he sought a declaration that the Plaintiff holds any interest that she may have in the Clovelly unit on trust for him. In the alternative, he sought a declaration as to the extent of each party's respective beneficial share as tenants in common in the Clovelly unit. 4On the morning of the hearing, without objection, the Defendant sought, and was granted, leave to file an amended Cross-Summons and an amended Cross-Claim. In these documents, he sought, in the alternative, "restitutionary damages, whether equitable or otherwise, in respect of any unjust enrichment of the cross-defendant". 5The allegations in the amended Cross-Claim included: "20. Further, and in the alternative, the cross claimant and cross defendant hold the beneficial estate of the property on trust for themselves in the shares that are just and equitable having regard to the respective contributions of the parties to the costs of acquisition and maintenance of the property (the contributions). 21. Further, and in the alternative, the cross defendant has been unjustly enriched to the extent that the contributions by the cross claimant exceed those of the cross defendant, having regard to the beneficial estate of the parties." 6The Plaintiff had filed a Defence to the Cross-Claim on 31 August 2013. At the hearing, in view of the late service of the amended Cross-Claim, the parties agreed that the Defence to the Cross-Claim should be read as including putting into issue Paragraphs 20 and 21 of the amended Cross-Claim set out above. 7The Defendant's claims, thus, in part, require an inquiry into moneys outlaid in connection with the acquisition, retention, preservation and improvement of the Clovelly unit and what interest each holds in the Clovelly unit. Bearing in mind it was purchased in 1985, this was not an easy task. To achieve this, following submissions, an opportunity was given to the parties to see if an agreement could be reached on some aspects of that inquiry. 8On 21 June 2013, the Court received a document from the Plaintiff's solicitor (sent with the consent of the Defendant's solicitor) headed "Amended Calculations on Contributions" which set out the agreement reached by the parties on some matters, to which I shall refer. It also set out the other matters, on which agreement could not be reached, which I shall identify, as disputed amounts, later in these reasons. (There were some statements referred to in the covering email, which I have ignored as not forming part of what I understand to be an agreed document.) 9The Plaintiff and the Defendant each read at least one affidavit sworn by her, and by him, respectively. There were few contemporaneous documents relied upon. There were hardly any invoices referring to what expenses were said to be expenses paid by one, or other, of the parties. 10I shall refer to the documents I considered particularly relevant, which formed part of the evidence, in the course of these reasons. 11Each of the parties, as well as all but one of the deponents of affidavits read in support of her, and his, claim respectively, was cross-examined. 12There was no agreement by the parties as to the current value of the Clovelly unit. They agreed, however, that in the event that it needed to be sold, they should be able to reach an arrangement to sell the property in order to keep the costs to a minimum. I shall allow them the opportunity to come to such an agreement if it is necessary for them to do so. (It is for this reason that the appointment of only one trustee for sale was sought, at least, presently, is irrelevant.)
Background Facts 13The parties are in dispute about the circumstances surrounding the acquisition of the Clovelly unit and a number of other matters. What I now set out appears to be uncontroversial, or in my view, clearly established, by the evidence. I shall return to findings on the disputed facts later in these reasons. 14The Defendant was born in March 1944 and is currently 69 years of age. 15The Plaintiff was born in July 1947 and is almost 66 years of age. 16During their younger years, commencing in about 1960, the Defendant found himself looking after their mother ("Mrs Murtagh") and the Plaintiff, as her husband, and their father, had left the family home. The Plaintiff, despite the closeness of their ages, described the Defendant as "like a de facto father towards me" and said that she "trusted him". 17Despite this description, it appears that, over the years, the relationship of the parties, whilst cordial, did not remain as close as it had been. Whilst the Plaintiff said that they would see each other, it appears that they would do so, usually, at the home of Mrs Murtagh, or on social occasions involving her. For example, they would celebrate Christmas and birthdays together, but, usually, with her. 18The Plaintiff described Mrs Murtagh as "the go-between" between her and the Defendant and said "she would always tell me what Michael was doing and vice versa". 19The Defendant's evidence confirmed that by 1985, he and the Plaintiff were not particularly close. He gave the following evidence following some questions regarding any discussions about the purchase of the Clovelly unit: " Q. Did you ever discuss it with her over a period of time? A. I never discussed hardly anything with my sister. We hardly met. It was on over those years it was over the telephone, it was never sitting down as a family member would. Q. So when your sister says that you were like her father and she trusted you, she's not really telling ... A. I think that was, she was talking prior, when she was a young girl. We had no father. Our father had left. And I, from the day I started work in 1960, I looked after my mother and my sister to the best of my ability, by paying rent and looking after them." 20Before 1985, neither of the parties had ever owned any real estate. Before the purchase of the Clovelly unit, it appears that neither had, individually, the financial capacity to enable such a purchase. They had lived with Mrs Murtagh, in rented accommodation, until about 1980. Each of the parties continued to live in separate rented accommodation thereafter until the purchase of the Clovelly unit. 21It appears that in early 1985, a friend of the Defendant, Ron Pomering, who was called as a witness in the proceedings by the Defendant, approached the Defendant and informed him that he had a property for sale (which was the Clovelly unit). He said to the Defendant: "It is a good buy for you" and also that he could "look after everything for you". The Defendant inspected the Clovelly unit and decided that he would purchase it. 22The Plaintiff and Mrs Murtagh inspected the Clovelly unit also, but, it would seem, at a time prior to any discussions between the Defendant and the Plaintiff about her involvement in its purchase. 23Prior to exchanging contracts for the sale and purchase of the Clovelly unit, the Defendant applied to the United Permanent Building Society Limited ("the Building Society") for a loan to finance the purchase. The Building Society refused the application upon the basis that the Defendant's income was insufficient to satisfy the loan repayments. 24Subsequently, the Defendant requested the Plaintiff to join with him in securing the loan, and the parties, together, made a further application to the Building Society, which application was successful. I shall return to the differing versions later in these reasons. (I have endeavoured to put what occurred prior to the exchange of contracts as neutrally as I can at this point. There is a dispute as to the converation between them.) 25The parties attended the office of the Building Society together and completed the loan application in the presence of the manager. This involved each providing details of her, and his, then current income. 26Following their joint application, in a letter dated 26 April 1985, headed "LOAN APPROVAL", which was addressed to both parties, the following information appears: (a) The loan amount was $67,500; (b) The purpose of the loan was described as "Purchase unit for $75,000"; (c) The interest rate was 13.5% per annum, with a monthly repayment of $791, the first of which payments was due on 28 July 1985; (d) The loan term was 24 years; (e) The security offered was first registered mortgage over the property being purchased; (f) The mortgagors were identified as both of the parties; and (g) The application for a loan had been approved (subject to certain conditions (which were said to be annexed to the letter but which conditions did not form part of the evidence). 27It appears that the solicitor acting on the sale and purchase was Mr P.R. Murphy whose firm was situated in Bondi Junction. He acted for both the vendor and the purchasers in the transaction. (He was known by the Defendant to be Mr Pomering's solicitor.) 28Although a copy of the Contract for the sale and purchase of the Clovelly unit was not in evidence, the Plaintiff signed it, but at a different time to when it was signed by the Defendant, who, said he signed it on the same occasion as did Mr Pomering on behalf of the vendor (Lake North Pty Limited). 29(Although each of the Plaintiff and the Defendant stated in her, and his, affidavit respectively, that the purchase price was $75,000, and although the Loan Approval letter was to the same effect, as was the consideration described in the Transfer that was subsequently registered, the Defendant asserted in his evidence, as did Mr Pomering, that this was not, in fact, the purchase price. The evidence given by each was that Mr Pomering waived the deposit, thereby reducing the actual price to be paid. I shall return to this topic later in these reasons.) 30The Defendant agreed that he did not inform the Building Society that the price to be paid was not $75,000, but that only $67,500 was required to be paid. 31A copy of the "Settlement Sheet as at 30 May 1985 Adjusted as at 18 March 1985", which formed part of the evidence, reveals that the purchase price was $75,000; that a deposit ($3,750) was deducted from the purchase price; and that an amount of $66,766 was deducted after adjustments were calculated (which amount was the amount advanced by the Building Society). With those minor adjustments, this document suggests that an additional $4,860.50 was required to be paid on settlement. 32Following settlement, the mortgage in favour of the Building Society was registered on the title to the Clovelly unit. Neither the original, nor a copy, of the mortgage, was in evidence. It was accepted by the parties that each of them was likely to have been jointly and severally liable under the mortgage. 33As I have stated, a copy of the Transfer dated 30 May 1985 which formed part of the Defendant's first affidavit, revealed the receipt of consideration of $75,000 by the vendor; that the vendor of the Clovelly property was Lake North Pty Limited; and that the purchasers were the Defendant and the Plaintiff. The address of each of the Plaintiff and the Defendant was shown on the copy Transfer as the address of the Clovelly unit. The Transfer appears to have been signed under the common seal of Lake North Pty Limited and by P.R. Murphy as "Solicitor for the Transferees". 34The stamp duty payable on the purchase was $1,501.50. Pursuant to the Stamp Duty Deferred Payment Scheme, the stamp duty was able to be paid in equal annual instalments over 5 years. The Defendant made five annual instalments of about $300. He produced contemporaneous documents relating to the payments that he had made in May 1986 ($301) and in May 1987 ($304.49). (The Defendant seemed to accept that the amount of stamp duty was calculated upon the basis of a purchase price of $75,000.) 35Following her moving into the Clovelly unit, the Plaintiff arranged, and paid for, the installation of built-in wardrobes in both bedrooms and a shower screen and a mirror in the bathroom. She did not produce any documentary evidence revealing the amount paid. (There was a dispute as to the date the wardrobes, shower screen and mirror were installed. Nothing, in my view, turns on the date of installation.) 36During the early years of living in the Clovelly unit, the Defendant paid for new carpet to be laid. After the Plaintiff moved out, in about November 1991, the Defendant paid for the paint to enable the interior of the Clovelly unit to be painted, which he did with his friends. Later, at his own cost, he had cable television installed. 37The monthly repayments due under the mortgage were increased to $869 in September 1985, and at various times thereafter, as interest rates increased. (The Defendant annexed to his affidavit a copy of correspondence, dated 30 September 1985, from the Building Society, addressed to both parties, as well as an undated document headed "Mortgage Update" setting out information regarding Australian home loan Interest rates and disclosing rates charged to loans (where mortgagors had remained as owner-occupiers) between 1 March 1989 and 1 December 1989.) 38When she moved into the Clovelly unit, the Plaintiff paid $100 per week, in cash, to the Defendant. He made the monthly mortgage repayments, as well as paying other associated costs and expenses of the Clovelly unit, from his bank account. (There was a dispute whether the Plaintiff contributed to associated expenses, and how the payments that she made to him were characterised.) 39There was no evidence that the parties, otherwise, pooled their resources. 40The Plaintiff lived in the Clovelly unit with the Defendant, in apparent harmony, until about November 1991, when she moved out to house-sit the home of a friend who was going overseas for 12 months. She did not return to live in the Clovelly unit until about 2002. The reasons for her moving were not explored in any detail. However, the Plaintiff said: "I went there probably to help a friend out and I suppose after living with my brother for, since 85, not that we clashed, but I mean I felt, you know, I felt I needed to when the opportunity came I decided to accept it". 41The parties agreed that during the period of her occupation of the Clovelly unit from about May 1985, to November 1991, the total number of weeks is 329 (which means that if she made all of the payments to him, she would have paid $32,900. The Defendant does not admit that the Plaintiff made all of the weekly payments. The parties are agreed, however, that I should treat approximately $3,290, of this sum, as in dispute. (I have ignored the word "rent" in the Amended Calculations on Contributions since the allegation that the payment was "rent" is in dispute between the parties.) 42After she moved out of the Clovelly unit, and until her return in 2002, the Plaintiff made no payments at all to the Defendant. 43The Defendant lived in the Clovelly unit, alone, following the Plaintiff moving out, until about May 1993, when his employer transferred him to Brisbane. He then worked in Brisbane for about 2 years, returning to Sydney, in March 1995. The Defendant says that even though he was transferred to Queensland, he would return to Sydney "from time to time and stay at the unit". He gave oral evidence that, sometimes, he would stay in the Clovelly unit, whilst working interstate, for as long as six weeks at a time. 44In about June 1993, a friend of the Defendant, John Shirley, moved into the Clovelly unit. He resided there until mid-1996. (There is a dispute about whether, and what amount, if any, Mr Shirley paid by way of rent, or occupation fee, to the Defendant. Although an affidavit had been sworn by Mr Shirley, the Defendant, initially, did not read it as Mr Shirley was not available for cross-examination. However, on the second day of the hearing, without objection, Mr Shirley's affidavit was read. I shall return to the evidence given by Mr Shirley later in these reasons.) 45The Defendant made several payments, totalling $34,486, towards the reduction of the mortgage debt. He paid $3,926 on 28 February 1993; $15,280 on 15 July 1993; and $15,280 on 15 August 1993;. He paid these amounts from his redundancy package. 46At or about the time of the last payment, the Defendant gave the Plaintiff a copy of a bank statement showing that he had made the final payment. At the time she was informed of the payments, they had already been made. There is no evidence that the payments were made by the Defendant with her knowledge and approval. 47The payment of these amounts to discharge the mortgage debt suggests that, by this time, the amount of about $32,280 of principal had been paid. 48The parties agreed, that the amount contributed by the Defendant to the repayment of the capital and interest under the mortgage was $150,000. This amount included the three payments made by him in 1993. However, the agreed amount did not take into account the amount that the Defendant had received from the Plaintiff, at $100 per week, until about November 1991. 49Following payments of these amounts by the Defendant, the mortgage could have been discharged, but nothing was done by either of the parties, or by the mortgagee, to discharge the mortgage and remove the mortgage particulars from the folio identifier. (A title search of the Clovelly unit obtained by, or on behalf of, the Defendant, on 11 January 2012, reveals that a mortgage to the Building Society remained registered on title.) 50Between about March 1995 and mid-2002 (say 7 years), the Defendant lived in the Clovelly unit alone. As stated, the Plaintiff made no contributions to the costs and expenses associated with the Clovelly unit, which were borne, during this period, entirely by the Defendant. 51In about 2002, the Plaintiff returned to live in the Clovelly unit. At that time, the Defendant lived there also, but he was spending some of his time at the home of his current de facto partner, Lesley Clark. He moved out of the Clovelly unit in about January 2005, to live with Ms Clark permanently. However, he left furniture and other belongings at the Clovelly unit. Thereafter, until January 2012 (say 7 years), the Plaintiff lived in the Clovelly unit alone. 52Even though he was not living in the Clovelly unit all the time, the Defendant attended the Annual General Meeting of the Owners of the Strata Plan held on 17 March 2004 and on 21 February 2005, as well as the meeting of the Executive Commttee of the Strata Plan held on 17 March 2004, on 21 February 2005, on 14 November 2005 and on 18 November 2008. The Plaintiff did not attend either of the Annual General Meetings. (She was not a member of the Executive Committee.) However, she attended the Annual General Meeting of the Owners of the Strata Plan held on 18 November 2008. 53In about 2004, the Plaintiff paid for second replacement of shower screen which had been damaged by a friend of the Defendant. Also, she paid for, and arranged installation of, a new toilet bowl and cistern, a new shower head, towel racks and a long mirror in the bathroom cupboard. Following the Defendant moving out in early 2005, the Plaintiff paid for new blinds to be installed, paid for plumbing repairs and maintenance, paid for repairs to electricity fuses, and the cost of installing fittings for an internal washing machine. There is no evidence that she sought the Defendant's permission to do any of these things. 54The Defendant moved back into the Clovelly unit, with Ms Clark, in about January 2012. Prior to moving in, the Defendant wrote a letter (undated), in the following terms, to the Plaintiff: "Terri. Lesley & I are moving in permanently within 3-4 weeks. We are hoping it will be amicable. We would like to bring our dining table and buffett. You keep washing & dryer machines in dining area (would need table & mirror moved). Also we would bring out 50" t.v. & Foxtel Connect (I.Q.2) with cabinet. We would pay for Foxtel. Also we will bring some artwork - Are you o.k. us using your lounge - If not we will bring ours. We will clean every week. We appreciate you making space for us." 55Subsequently, the Defendant wrote another letter, dated 18 January 2012, to the Plaintiff in the following terms: " Terri As no reply to our last note, we do need a reply otherwise, we will move all our furniture in dining & lounge area. Whole unit carpet will be cleaned 1st week Feb. Also re linen cupboard - require half space. We will be cleaning garage area & would ask if you would mark your property as 1 Terri's to stay; 2 Terri's to rubbish tip. 3 If not marked will go to tip. We will be bringing our t.v. / I.Q.2 - Foxtel contract which is with Telstra & covers phone (home-line) & computer. Please give following urgently:- 1 Foxtel - will need your contract details - plus last invoice etc 2. Telephone - Home line (Telstra) the last invoice & contract details 3. Your computer re any contract with Telstra Home-Line 4. Copies of both last gas & electricity invoices." 56Shortly after the Defendant and Ms Clark moved into the Clovelly unit, the Plaintiff moved out, and into the home of a friend, in which home she still resides. The Defendant and Ms Clark have remained, and continue to remain, living in the Clovelly unit. 57The parties agreed that during her occupation of the Clovelly unit from 2002 until 2012, the Plaintiff paid $100 per week, in cash, to the Defendant. They agree that the total number of weeks is is 495 (which means, if she made the payments to the Defendant every week, that she would have paid $49,500). 58The Defendant does not admit that the Plaintiff made all of the weekly payments during this period. The parties agreed that I should treat about $4,950, of this sum, as in dispute. (Again, I have ignored the word "rent" in the Amended Ccalculations on Contributions since the allegation that the payment was rent has been in dispute between the parties.) 59The parties also agreed that the amount of the strata levies for the whole of the period since the acquisition of the Clovelly unit was $39,489.72. They also agreed that this amount had been paid by the Defendant. 60They also agreed that the total amount of the special levies for the whole of the period since the acquisition of the Clovelly unit was $33,864.74. In March 2007, the Plaintiff paid $4,500 towards a special strata levy of $9,000 imposed on lot holders by the body corporate. (The Defendant denies that this was a contribution, by the Plaintiff, to the special levy that had been struck, and says it was a simply a loan made by her to him. He accepts that he has not repaid that amount, or any part of it, to the Plaintiff.) 61There was no challenge to the individual nominated by the Plaintiff as trustee and he has consented to act. There were no affidavits as to the fitness of the proposed trustee, but the Defendant did not dispute his fitness to act. However, as stated, the parties agreed that before any trustee was, or trustees were, appointed, they should be given an opportunity to sell the Clovelly unit if that became necessary depending upon the result of the proceedings. 62At the hearing, Ms D Reid of counsel appeared for the Plaintiff and Mr J Sleight of counsel appeared for the Defendant. Each provided written submissions that will remain with the Court papers.
The Issues 63The first issue relates to what the parties agreed at the time of the purchase of the Clovelly unit. In this regard, the Plaintiff asserts that she has, and always had, a beneficial interest in the Clovelly unit. The Defendant denies this and asserts, that she never had any beneficial interest in the Clovelly unit. He also asserts that she merely became a registered proprietor in order to assist him to obtain finance to fund the purchase of the Clovelly unit and that, at all material times, she held her legal interest on trust for him. 64The submission made on the Defendant's behalf is that there was a verbal agreement whereby the Plaintiff would put her name and personal details on the loan application and provide evidence of her income for the sole purpose of assisting the Defendant to obtain the loan. 65The Defendant also submits that the Plaintiff acknowledged, in the event that the loan application was successful, that she would have no interest in the property and that her actions were merely to assist the Defendant in obtaining the loan. 66The Defendant says, also, that it was agreed that all ancillary obligations for repayment of the loan, together with interest and other related expenses to the Clovelly unit would be the sole responsibility of the Defendant and that he would be the sole beneficial owner of the property. 67As stated, there is no dispute that whilst she lived in the Clovelly unit, the Plaintiff paid the Defendant $100 per week (or more accurately according to the Plaintiff, $200 per fortnight), in cash. (I have earlier referred to the amounts in dispute.) The remaining issue on this topic is whether the payments made were the Plaintiff's contributions, as a tenant or licensee, to living expenses/outgoings, or as she alleges, they were payments towards her share of the repayments due under the mortgage, or as repayment of her share that had been paid by the Defendant. 68The Plaintiff submits that the amount paid equates to more than one half of the total amount of principal and interest repaid under the mortgage. The Defendant denies that this is so and submits that the Plaintiff only made payments whilst she was in occupation, which, so he submitted, provided support for his assertion that there was an agreement that the responsibility for repaying the mortgage debt and making payments associated with the ownership of the Clovelly unit was that of the Defendant alone.
The Law 69The prima facie position is that the beneficial ownership of real property is commensurate with the legal title (Currie v Hamilton (1984) 1 NSWLR 687, 690 per McLelland J). 70However, where two persons have contributed the purchase money in unequal shares and the property is purchased in both names, there is, in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money (Trustees of the Property of Cummins (a bankrupt) v Cummins [2006] HCA 6; (2006) 227 CLR 278, at [55]). 71In Ryan v Ryan [2012] NSWSC 636, Ward J (as her Honour then was), at [43] - [44], put the principle this way: "The initial presumption arising from the registration of ownership on the title to property is that the registered owner or owners (as the case may be) has (or have) ownership in the property in the interest specified on the title and that there is no beneficial interest in favour of someone else (Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060 at [128]). However, where the legal title does not reflect the proportionate contributions of the parties, then (at least absent a presumption of advancement) it will be presumed that the beneficial ownership of the property is held in the proportions in which they contributed the purchase money. The relevant time for a finding of a resulting trust is the time of acquisition of the property or "so immediately after it as to constitute a part of the transaction" (Calverley v Green (1984) 155 CLR 242). ...White J noted in Shepherd v Doolan [2005] NSWSC 42 at [23] that where a presumption of a resulting trust arises (and is not displaced) then unless there is a later agreement to alter the equitable interest in the property acquired (or the beneficial interests arising under the resulting trust are displaced by an interest arising under a constructive trust), the interest is not changed by later contributions to the conservation or improvement of the property." 72Yet, in Trustees of the Property of Cummins (a bankrupt) v Cummins, at [73], the High Court noted "the disinclination of equity to intervene through the doctrines of resulting trusts to displace the incidents of the registered Title ...". 73The extent of the beneficial interest of the parties, arising by reason of a resulting trust, must be determined at the time when the property was purchased and the trust created: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 252, per Gibbs CJ; at 262, per Mason and Brennan JJ; and at 271, per Deane J. 74The resulting trust that is presumed in the circumstances referred to is capable of being displaced by evidence showing that the parties had a common intention to share an equal interest in the property and/or that the party making the disproportionate contribution intended that the parties would have an equal interest in the property notwithstanding: (see summary of the law in Neilson v Letch (No 2) [2006] NSWCA 254, by Mason P). 75Where parties intend to acquire property subject to a mortgage, the moneys raised on the mortgage are treated as a contribution by the parties who have borrowed the money from the mortgagee (Ingram v Ingram [1941] VLR 95; [1941] VicLawRp 20 at 102; Currie v Hamilton at 692; Calverley v Green, at 251, 257-258, and 267-268). Thus, if the parties were joint borrowers from a mortgagee, the application of the advance of the amount borrowed towards the purchase of the property should be treated as a contribution to the purchase of the property made by them equally. 76It is the measure of the parties' contributions to the purchase, or acquisition, cost of the property that will determine the proportionate beneficial share of each of them. The general rule in relation to subsequent contributions to the repayment of a mortgage loan is that these will not alter the extent of the proportionate beneficial interests determined by contributions to the purchase or acquisition cost. 77In Calverley v Green, Gibbs CJ said, at 252: "The extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created. The fact that the mortgage debt was repaid by the appellant is therefore not relevant in determining the extent of the interests of the parties in the land, although it may be relevant on an equitable accounting between the parties." 78In Calverley v Green, Mason and Brennan JJ said, at 257: "It is understandable but erroneous to regard the payment of mortgage instalments as payment of the purchase price of a home. The purchase price is what is paid in order to acquire the property; the mortgage instalments are paid to the lender from whom the money to pay some or all of the purchase price is borrowed." 79However, their Honours also accepted that the extent of the equitable interests arising from varying contributions to the purchase price of a property might change after the purchase if there was agreement between the contributors. At 262 - 263, Mason and Brennan JJ said: "As there was no agreement made after the purchase to alter the equitable interests acquired when the property was purchased, payments made under the mortgage work no alteration in those interests. This case cannot be likened to Bloch v Bloch [1981] HCA 56; (1981) 37 ALR 55 where the relevant property which the parties intended to acquire was seen to be not the title to the land subject to the mortgage but the land freed of the mortgage [per Brennan J at 402]. In such a case the price paid to free the land of mortgage as well as the price paid for the title to the land itself must be taken into account in determining the parties' beneficial interests. Mortgage payments may quantify the parties' interests under a resulting trust of a property acquired as a mortgage-free investment, but they would rarely quantify the interests of parties under a resulting trust of house property acquired as a home to live in. If it is right to regard the payment of the mortgage instalments as having been made by the defendant out of his own funds and on his own account - that is, if he made those payments not intending the plaintiff ultimately to have the benefit of those payments - the defendant may be entitled to contribution from the plaintiff for her share of the payments and to an equitable charge to secure the making of her contribution..." 80In Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at 148, Mason CJ, Wilson and Deane JJ referred to what Deane J had said in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 620, as resulting from the application of "... the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them". 81Although there has been controversy about whether contributions to the purchase price are confined to the payments made by the parties only to the price paid to the vendor, thus omitting from calculation fees, disbursements and other associated costs of completing the purchase, such as stamp duty (Currie v Hamilton, at 691, and Little v Little (1988) 15 NSWLR 43, at 45 - 46), the debate has been resolved. It can now be stated that for the purposes of calculation, contributions to the purchase price, include incidental costs, fees and disbursements involved in the acquisition of the property (Ryan v Dries [2002] NSWCA 3, at [52]-[53]; (2002) 10 BPR 19,497 at 19,508-19,509). 82Hodgson JA (with whom Sheller and Giles JJA agreed) in Ryan v Dries wrote, at [53]: "However, on balance consistently with McLelland J's view, I prefer the view that equity, dealing with presumed intentions and preferring substance to form, would have regard to the totality of the money which purchasers have in truth outlaid to obtain the property. This means that normally the proportions should be determined with reference to the proportions of payments for both the purchase price and the incidental expenses that had to be incurred in order to obtain the property ... " 83In Ryan v Dries, the Court of Appeal also set out the following procedure to be applied when determining the relative interests of each of the parties who purchase property using funds secured by a joint mortgage: (a) establish the actual contribution of each party to the purchase price; (b) add incidental expenses; (c) apply the mortgage equally; and (d) then ascertain the percentage of the capital contribution of each party in relation to the total of (a), (b) and (c). 84This is, of course, subject to any express agreement about these matters. 85Thereafter, whether one, or both, of the parties made the mortgage principal, and interest, repayments is a question of fact, not determined, necessarily, by establishing the account from which the payments were actually made. 86There are other principles upon which the Defendant relies. As was pointed out by Campbell J (as his Honour then was) in Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; (2012) 12 BPR 22,421, at 143: "As well, sometimes conduct after the acquisition of title might provide a basis for someone who has made contributions to payment of mortgage instalments to claim a proprietary interest on some basis other than that of a resulting trust, such as constructive trust, or equitable charge or lien. Alternatively, payment of contribution to mortgage instalments might give rise, in some factual situations, to a claim for reimbursement, on the basis of an equity of contribution, or some restitutionary basis." 87In this case, the Defendant relies upon a constructive trust in the remedial sense, which arises: "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 ..." See: Muschinski v Dodds at 620. 88The constructive trust in the remedial sense may be imposed upon a party as a remedy affecting her, or his, legal and beneficial ownership of particular property in a case where circumstances and the conduct of the parties are such as to make it unconscionable not to impose the trust. Then, the inquiry will not be to ascertain the actual or presumed agreement or intention of the parties. 89Put another way, a constructive trust may be imposed upon a legal entitlement to property in order to prevent a person from asserting, or exercising, his, or her, legal right in respect of that property in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct. (In this case, the 'legal entitlement' is the legal ownership of one half of the Clovelly unit by the Plaintiff.) 90The necessity for unconscionable conduct means that a constructive trust will not be imposed on the ground of mere fairness, as Brennan J said in Muschinski v Dodds, at 608: "... There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare. ... The flexible remedy of the constructive trust is not so formless as to place proprietary rights in the discretionary disposition of a court acting according to vague notions of what is fair..." 91Whether the assertion by a party of his, or her, legal rights would be unconscionable, can encompass events that occurred after the property was acquired. Expenditure on repairs and renovations of the property by a person asserting such a constructive trust, 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. 92In Ly v Ly [2012] NSWSC 643; (2012) 16 BPR 31,649, Rein J said, at [19]: "In my view, in the absence of express agreement, a co-owner of a property cannot leave the whole burden of repaying the loan obtained to purchase the property and other ongoing necessary expenses such as council rates and insurance to the other co-owner without eroding his beneficial interest in the property. As the High Court held in Muschinski v Dodds (1985) 160 CLR 583: [v]iewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle. An application of this principle where a co-owner discharged the mortgage is found in Western Australia v Bowman (Supreme Court of Western Australia, Sanderson M, 11 November 1997, unreported, BC9706022)." 93In determining the scope of such a constructive trust, relevant to the present case, a court may take into account direct financial contributions to the purchase price of the property as well as incidental costs, such as stamp duty, registration fees, solicitors' fees and bank fees. 94Also, the Defendant seeks to establish an equitable charge. An equitable charge is often used in a case where the imposition of a constructive trust would be inappropriate. 95Where a resulting trust arises and the beneficial interest is held by parties as tenants in common in proportion with their contributions to the purchase price, and there is a mortgage in the names of both parties, then to the extent to which one party pays more than his, or her, share of interest and principal secured by the mortgage, an equity arises in favour of that party, and that party is entitled to an equitable charge securing a contribution from the other party or parties: Ingram v Ingram, at 102. The imposition of an equitable charge will represent the quantum of the relevant contribution. 96In relation to the repayment of the mortgage, Giles JA in Ryan v Dries, at [15], wrote: "When A makes payments in discharge of the joint burden of the mortgage instalments, the situation is different. The equity sought is that B should bear his proper share of the burden jointly undertaken by A and B. The increase in the equity in the property is something he undertook to pay for by jointly undertaking the burden." 97In Black Uhlans Inc v New South Wales Crime Commission, at [189], Campbell J noted that such an equity can only arise (and, accordingly, a charge be available) where the person who makes mortgage payments has a liability under the mortgage to do so. 98In Silvester v Sands [2004] WASC 266, at [139] - [141], EM Heenan J set out the manner of approaching the rights and obligations of the parties in respect of payments made after the acquisition of the relevant property: "It is therefore necessary to examine the principles which apply to claims for an account or an allowance in respect of improvements, mortgage repayments, repairs and other like expenditure on property as between beneficial co-owners. These have been examined extensively in Ryan v Dries (supra) and in Oxley v Hiscock [2004] EWHC 2473; [2004] 3 All ER 703 CA although it may be that the current English approach gives greater recognition to non-pecuniary contributions than has been accepted in this country. In an instance where the beneficial ownership of a property is shared between two people, either husband or wife, co-habitees or others, and one leaves, with the remaining co-owner continuing or taking over mortgage repayments and the responsibility for repairs and improvements, there can be an account taken in equity between those parties. For the paying party to recover an allowance for any appreciation in the value of the capital asset because of these outgoings it is necessary to prove that the expenditure has, in fact, produced an ascertainable increase in the capital value as, for example, in the case of a renovation which has enhanced the market value of a house or, in relation to the repayments of a mortgage where the repayments have effected an ascertainable reduction in the principal previously owing under the mortgage. In the absence of proof of an increase in capital value so caused, no recovery because of unrelated appreciation in value will be possible and the parties are left to hold the property, or share the proceeds of any sale, on the basis of their established beneficial interests, usually, but not always, arising from the extent of their contributions towards the costs of its acquisition. Such a claim, where it exists, will only be available in certain designated proceedings which, include a partition suit or a claim for a compulsory sale or in other proceedings which involve a termination of the proprietary interests of the co-owners whether those interests be legal or beneficial. Then there is the category of payments which do not directly enhance the capital value of the asset such as for the interest component under a mortgage or other outgoings necessary for the preservation of the property such as repairs, minor improvements and the payments of rates, taxes and other expenses deriving directly from ownership. Often there will be a situation where one of the co-beneficial owners vacates the premises and leaves the other in occupation who, staying on, through choice or necessity continues to meet the mortgage repayments, rates, taxes and other like expenditure. In that situation a remaining co-owner or co-beneficial owner may be entitled to recover a contribution, proportionate to the departed co-owner's beneficial interest in the property, to the mortgage repayments, rates, taxes and like expenditure but, in such cases, the person claiming a contribution or an account will be chargeable with an occupation rent in respect of the period in which he or she continued to enjoy sole possession of the premises - Re Pavlou (a Bankrupt) (supra) at 1049-1050. In some cases a court may simply set-off the payment of expenditure by the continuing occupant against the occupation rent as a matter of convenience but a strict accounting can be demanded by the parties - In Re Gorman (a Bankrupt) [1990] 1 WLR 616 at 626. In this regard, Hodgson JA said in Ryan v Dries (supra) at [61]: There seems little question about the broad principle applicable in this situation: a co-owner of property who has exercised the right to occupy the property is not liable to be charged with an occupation rent unless he or she (1) has excluded the other co-owner from occupation or (2) is claiming an allowance for expenditure in respect of the property: see Luke v Luke (1936) 36 SR (NSW) 310. If an allowance for expenditure is claimed, then, by reason of the maxim requiring the seeker of equity to do equity, the claimant can be charged with an occupation rent up to a limit of the amount allowed for the claim for expenditure: see Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476; Brickwood v Young (1905) 2 CLR 387."" 99As to the proof of each party's contributions, in Cetojevic v Cetejovic [2006] NSWSC 431 when considering whether there was a resulting trust, Campbell J, said, at [36]: "In coming to that conclusion, I bear in mind that in an exercise such as this precise accounting is often not to be expected, and that sometimes a broad brush estimate needs to be made to ensure that the onus of proof does not itself become an instrument of injustice. However, it is still necessary for the tribunal of fact to be in a position of being persuaded that, at the least, a certain amount of contributions were made by one particular party, and to be satisfied as to how those contributions relate to the contributions made by the other party." 100Neither party made a claim for an occupation fee whilst the other was in sole occupation of the Clovelly unit. Yet, it is necessary to refer to another passage in Ryan v Dries at [61] and [70-71]: "There seems little question about the broad principle applicable in this situation: a co-owner of property who has exercised the right to occupy the property is not liable to be charged with an occupation rent unless he or she: (1) has excluded the other co-owner from occupation; or (2) is claiming an allowance for expenditure in respect of the property: see Luke v Luke (1936) 36 SR (NSW) 310. If an allowance for expenditure is claimed, then, by reason of the maxim requiring the seeker of equity to do equity, the claimant can be charged with an occupation rent up to a limit of the amount allowed for the claim for expenditure: see Teasdale v Sanderson (1864) 33 Beav 534 ; 55 ER 476; Brickwood v Young (1905) 2 CLR 387 ... ... If a co-owner makes a claim for contribution to mortgage payments in reliance purely on a legal right, with no reliance on equitable principles, then it would seem that the co-owner is not seeking equity and is not required to do equity. However, if the co-owner does rely on equitable principles in making such a claim, in my opinion the co-owner is seeking equity and is required to do equity, no less than if allowance for improvements was being sought. ... once an occupier is required to do equity because he or she is seeking equity, there is no reason to distinguish between improvements or repairs effected to the property on the one hand, and the reduction of a charge on the property through mortgage repayments on the other." 101Each of the parties, however, does seek reimbursement for repairs and/or improvements to the Clovelly unit.
The Witnesses 102The arrangement, whatever it was, between the parties, as is clear from what I have written, was not recorded in writing in any way, whether in the mortgage document, a covering agreement, or any other note, however informal, passing between them. 103Neither party called the solicitor who was shown on the Transfer as having acted for them, as transferees, as a witness. However, there is no suggestion had he been called, that he would have been able to shed any light on the issue. Had he known about the arrangement asserted by the Defendant, it is likely that some record of the arrangement would have emerged. 104Bearing in mind the terms of the Settlement Sheet as at 30 May 1985 Adjusted as at 18 March 1985, it is unlikely that the solicitor had been told of any arrangement of the type described by the Defendant. 105As many of the issues are issues of fact, the issue of credit of each of the witnesses who gave evidence assumes significance in the proceedings. Bearing in mind that the Court is dealing with events that occurred 28 years ago, and given that the contemporaneous documentary evidence is virtually non-existent, and that each of the witnesses was relying, principally, on memory, in expressing my views on the credit of any witness, I remember what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319: "Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court 'must feel an actual persuasion of its occurrence or existence'. Such satisfaction is 'not ... attained or established independently of the nature and consequence of the fact or facts to be proved' including the 'seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding': Helton v Allen (1940) 63 CLR 691 at 712." 106I appreciate that in that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 at [10] - [18]. However, the views expressed by his Honour apply to all types of litigation. 107Also, as observed by former Chief Justice J Spigelman 'Truth and the Law' (Speech delivered at the 2011 Sir Maurice Byers Lecture, 26 May 2011): "Witnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen. The plasticity of memory impedes the truth finding process. This is not an uncommon phenomenon." 108The present case reveals the importance, also, of what Bryson AJ wrote in Pennimpede v Pennimpede [2009] NSWSC 85, at [29]: "Considerations of these kinds pose serious difficulties of proof for a party relying upon spoken words as a foundation of a cause of action in the absence of some reliable contemporaneous record or other satisfactory corroboration. In this case there is no contemporaneous document which supports the claim that the true arrangement was only a loan on mortgage, not a purchase, and there is no satisfactory corroboration. McLelland CJ in Eq's observations apply with only slight changes to the present case. A great deal of what I was told related to conversations which were alleged to have occurred well over 10 years before I heard the evidence. Most of what I was told about the conversations seemed to me to be little more than impressions, accompanied by plausible details which were very unlikely to be based and were not based on actual memory. These impressions came to me through a filter (perhaps an osmotic barrier) of years of conflict, argument and strong feeling." 109Although the decision was subject to an appeal (see, Pennimpede v Pennimpede [2010] NSWCA 121), the appeal was dismissed, and there was no suggestion that what Bryson AJ had said about difficulties of proof was wrong. 110The Plaintiff was cross-examined for some time. She admitted that there was much she was unable to remember about conversations with the Defendant. At other times, she asserted that there were no discussions. It is fair to say that her recall of the events that occurred was not entirely reliable. Yet, even though she was not an entirely satisfactory witness, overall, I found her to be endeavouring, as best as she was able, to provide her best recollection of the events about which she was asked. In part, the lack of detail was based on her reliance upon the Defendant to attend to all matters surrounding the purchase of the Clovelly unit. 111For example, she gave evidence that: (a) She did not remember whether, and if so, when, she inspected the Clovelly unit. She thought she had done so but was unable to specifically remember. She was unable to dispute that she inspected the Clovelly unit with her mother at a time prior to any conversation with the Defendant about her participating in its purchase. (b) At the time she and her mother had the conversation about the mother using money to pay the deposit, neither knew the amount of the deposit or what the associated costs of purchase would be. (c) She had not seen her mother's bankbook and did not know how much money her mother had available to pay any deposit. (d) She had no discussion with the Defendant about their mother's involvement in providing the deposit. (e) She was not aware, in the first year, or ever, whether the repayments on the mortgage increased, although she did know of interest rate changes. She did not make any inquiry of the Defendant. Nor did he tell her. (f) She did not ask the Defendant for any mortgage documents. (g) When she moved out of the Clovelly unit in 1991, she did not offer to continue making the payments that she had made previously. She ceased making payments altogether and "walked away from her financial obligations that she had taken on at that time". She made no payments towards the mortgage debt, the strata levies, or the rates, whilst she was not living there. (h) She did not know, in fact, whether Mr Shirley was paying any money to the Defendant by way of rent or occupation fee; she did not ask him whether he was doing so. (She had asserted that he was doing so in her affidavit.) (i) Whilst the Defendant was working in Queensland, she did not attend any strata meetings of the body corporate. She did attend the Clovelly unit, with notice given to Mr Shirley, to collect her mail. (j) She moved back into the Clovelly unit in about 2002 and then commenced to pay $200 per fortnight in cash to the Defendant and one large sum for the strata levies. During this period, she made no enquiries about the amount of the strata levies. 112I found that most of this evidence was given without prevarication and without concern about its effect on her case. Clearly, some of the evidence does not assist her case. 113On the question of the purchase of the Clovelly unit, her evidence was that the Defendant "requested me to join with him in the purchase of this property as he could not get a loan on his own ... The arrangement that I had with my brother was that all the loan repayments came from his bank account and I gave him cash in hand each week towards my share of the mortgage". 114One specific issue, to which I should refer, related to what she and her mother had discussed about the deposit. The Plaintiff confirmed that her mother had told her that she had some money put away for her burial and that the money could be used towards the deposit for both the Plaintiff and the Defendant. The Plaintiff asserted that she thought her mother had paid over the money, and maintained that her mother had said she had done so. She said that she believed her mother had done so because that is what her mother had told her. (It was for this reason she had asserted what she had been told in her affidavit.) 115The only other witness relied upon by the Plaintiff, whose affidavit was read, was Dianne Elizabeth Lim, who went to school with the Plaintiff, and who was a friend of the Murtagh family, particularly, Mrs Murtagh. She gave evidence that Mrs Murtagh would discuss with her, regularly, what each of her children were doing and that in the mid-1980's told her that they were buying a home unit together at Clovelly. She also said: "I have given them money towards the purchase". Although she could not remember the precise amount spoken of by Mrs Murtagh, she recalled it was several thousand dollars, which Mrs Murtagh described as her "funeral money". 116Ms Lim also recollected that Mrs Murtagh told her in 1993 or 1994, that she had not yet received the funeral money from the Plaintiff and the Defendant. 117Ms Lim was cross-examined briefly. It was not suggested that she had no discussions with Mrs Murtagh, or that Ms Lim had not accurately reported the version of the conversation with Mrs Murtagh. 118I accept Ms Lim's evidence, which corroborates part of the evidence given by the Plaintiff as to her conversation with her mother. However, that does not establish that what Mrs Murtagh said was true, merely that it had been said by her. 119The conversation also corroborates that Mrs Murtagh referred to the purchase of the Clovelly unit by "them" (the Plaintiff and the Defendant). 120In relation to the Defendant, his evidence was less impressive. By this I do not mean that he gave evidence that was untruthful, but rather, that he was trying to tell the truth, as he believed it to be. I also found him to be rather dogmatic in the view that nothing that the Plaintiff had done entitled her to any beneficial interest in the Clovelly unit. 121I set out the part of the Defendant's affidavit relating to the first conversation alleged to have been with the Plaintiff: "12. In or about mid-April 1985, I approached my sister to assist me with seeking finance. At this time, we had a conversation to the following effect: Michael: "Therese, I found a property that I want to buy in Clovelly. I can't get a loan though because my income is not high enough. Will you go on the loan documents to get me over the threshold?" Therese: "Okay, what do I have to do?" Michael: "It's just for the purpose of assisting me with getting finance. If the application is then successful, you won't have any obligations under the loan I will look after all of that. I just need to put your name on the loan so I can get finance." Therese: "Okay, let me know what I have to do." 122In answer to a question from the Bench, the Defendant gave the following evidence: "Q. Now did you ever tell the plaintiff that the purchase price was not $75,000? A. I never discussed the purchase with the plaintiff, nor did Mr Pomering. Q. When you say never discussed the purchase with the plaintiff, is that right? A. My only asking of the plaintiff was to put her name on the application form not the purchase." 123Of course, the Plaintiff was required to do more than "go on the loan documents" with the Defendant. The Defendant, himself, asserted in Paragraph 4 of the amended Cross-Claim, that he had asked the Plaintiff to be a joint applicant for the borrowing from the mortgagee "and to become a registered proprietor of the property on the condition that he would meet all financial obligations under the loan and arising from the property and would provide any shortfall in the purchase price". 124It was submitted on behalf of the Defendant that: "Therese acknowledged that in the event that the loan application was successful, she would have no interest in the property and that her actions were merely to assist Michael in obtaining the loan. It was agreed that all ancillary obligations for repayment of the loan, together with interest and other related expenses to the property would be the sole liability of Michael and that he would be the sole owner of the property." 125Accepting the Defendant's affidavit evidence at its highest, there is no reference to him having expressly said to the Plaintiff that she would have no interest in the Clovelly unit. Nor is there any evidence to support the submission that the Plaintiff acknowledged that she would have no interest in the Clovelly unit. 126The Defendant gave no evidence, either, that at the time the Plaintiff agreed to join him in making the loan application, there had been any discussions between them about her living in the Clovelly unit. To the contrary, he asserted that he was looking for a property for his own use. Furthermore, he had asserted in the amended Statement of Cross-Claim, in Paragraph 10, that it was not until one month after settlement that "the Plaintiff asked [him] for permission to occupy the Clovelly unit". 127Thus, the Defendant's evidence, and submission, if accepted, means that when she signed the mortgage documents, not only was the Plaintiff legally bound to repay the amount secured by the mortgage, she was doing so in circumstances where she would have no interest in, or enjoyment of, the Clovelly unit. 128The Defendant did not provide any explanation for the absence of involvement of the parties' solicitor, at or about the time of the purchase, in recording the agreement asserted by him, or for the absence of any written record whatsoever of the arrangements passing from him to the Plaintiff or otherwise recording the alleged agreement. 129Of course, on this topic, I have considered the familial relationship as one explanation, but have discarded it, as this was the first purchase of real estate by either of the parties, and its acquisition involved borrowing a significant amount of money from an independent lender. In addition, I have referred to the lack of closeness in the parties' relationship by 1985. 130Had there had been an arrangement that the Plaintiff would not have "any obligations under the loan", which I take to mean that the mortgage liability would be the Defendant's alone, with the mortgage advance considered as, in substance, made to him alone, and that she had no interest in the Clovelly unit despite her name appearing as a co-owner, one would have thought that there would be a document, perhaps, a note by the solicitor, or by the Defendant to the Plaintiff, confirming that arrangement or agreement. 131In addition, when one considers the Defendant's evidence about the relationship of the parties, that he would have asked her to join him as an applicant for a loan and nothing more, but more importantly, that she would do so, simply as a favour to him, and without obtaining any beneficial interest in, or enjoyment of, the Clovelly unit, seems implausible. 132The Defendant, who was able to produce nearly all of the contemporaneous documents referred to earlier in these reasons, did not produce a copy of any such document. (I have earlier noted the Plaintiff's evidence that she did not ever meet Mr Murphy and did not receive any correspondence from him.) 133Furthermore, the Defendant's case was that he was receiving $100 per week from the Plaintiff as "rent" or pursuant to a "licence" to occupy the premises. However, he produced no tax returns, as part of his evidence, to demonstrate that what he had received was disclosed as income received by him. The income tax returns, if available, and if recording the income said by the Defendant to have been by way of rent, or licence fee, might have gone some way to establishing how he had treated the amounts received from the Plaintiff. 134In addition, his income tax returns, particularly after 2005 and until 2012, might have revealed not only the income received, but also the deductions that he had claimed whilst the Plaintiff was living in the Clovelly unit as a tenant or licensee and he was not. 135Nor is there any evidence from the Defendant that, after he paid off the balance of the mortgage debt in 1993, he requested the Plaintiff to transfer her interest in the Clovelly unit to him, because there was no longer any concern that she was liable under the mortgage and because he had complied with his arrangement with her. In my view, that he did not do so, in circumstances where she was not living in the Clovelly unit at the time, and more importantly, not making any financial contribution to outgoings, is remarkable. 136The Defendant said that never once did he discuss with the Plaintiff that she was merely a renter of the Clovelly unit from him and that even though she was shown as a registered proprietor, she was not, in fact, an owner of any part of it. Bearing in mind his version of the events, to not have had any such discussions with her if that were the fact, seems unlikely. 137Nor did the Defendant suggest that anyone else had done so. For example, the Plaintiff stated that she had never met Mr Murphy and that he had not told her anything about holding the Clovelly unit on "trust". That she had not met him seemed to be accepted by the Defendant. 138Although much less relevant in this regard, I note that there was no evidence that Mrs Murtagh knew of the arrangement relied upon by the Defendant. If she did, she does not appear to have said anything about it to the Plaintiff or to Ms Lim. There was, after all, no reason for the Defendant to keep the arrangement (if it existed) secret from his mother. What Mrs Murtagh did say to Ms Lim, is quite inconsistent with having any knowledge of the arrangement alleged by the Defendant. 139Finally, the terms of the first undated letter written by the Defendant to the Plaintiff in 2012, do not suggest that the sole owner was writing to a tenant or licensee. To the contrary, it gives the impression that the Defendant appreciated that the Plaintiff had some interest in the Clovelly unit. Otherwise, the Defendant might simply have terminated the Plaintiff's tenancy or licence, which it appears he did not do. The Plaintiff says, and the Defendant does not deny, that she left the Clovelly unit. 140There were other parts of the Defendant's evidence with which I was not impressed. It appears that he was prepared to continue with an application to the Building Society that he knew was inaccurate on a fundamental matter, namely the purchase price of the property the subject of the loan application. He was also prepared to authorise the parties' solicitor to lodge a Transfer that stated an incorrect amount by way of consideration paid. 141The Defendant's counsel, at the commencement of the hearing, conceded "the finance company was misled ... so that a hundred percent of the purchase price could be borrowed" (T6.36 - T6.38). 142On the second day of the hearing, in order to allow the Defendant to provide an explanation, if there was one, for his conduct, I asked some questions of the Defendant. "Q. In any event, the position was that there was a contract signed by your sister and there was the same contract signed by you and by Mr Pomering? A. The vendor. Q. And on the contract, am I right in saying, the purchase price disclosed was $75,000? A. I never received a copy of that contract, that was kept at the solicitors. Q. I didn't ask you that, I asked you whether the purchase price disclosed on the contract was $75,000? A. I can't recall. Q. Do the best you can, would you? A. Honestly I can't recall. I can't recall. HIS HONOUR Q. In any event, when you saw the contract, when you signed it, you knew, did you not, that your sister was shown as a purchaser with you of the property? A. I suppose so. Q. Well, do you have any doubt about that? A. I did know the legal technicality at that stage. They just said sign the contract. It has been approved - the money had been approved by the building society for $67,000. Q. So you say you did not know she was a purchaser or not? I am trying to understand what your evidence is? A. Well, her name went on the contract. Q. As a purchaser I assume? A. I assume also. Q. And when you filled out the loan application, is it correct that she was shown on the loan application as a purchaser as well as you? A. I cannot recall the exact full details. I am not a - on applications all you do is supply the figures. All I did was supply my income and then signed it. I did not read the smaller points. Q. Do I take it that subsequently the mortgage documents were signed? A. Correct. They were signed in town at the United Permanent head office in Martin Place by my sister and myself. Q. In the mortgage your sister was disclosed as one of the mortgagors or borrowers? A. Again, they did not give me a copy. I would have to say yes. Q. Annexed to this same affidavit, Mr Murtagh, is a copy of the transfer. I will show it to you again. (Shown) That is a copy of the document that was annexed to your affidavit. Do you remember seeing that document before it was a copy that was annexed to your affidavit? A. I did see this before, yes. Q. And that document showed-- A. I think this document was supplied when this was all raised back in January 2012, when Terry or Therese or myself, when Therese raised it and they went to ANZ Bank, who had all that. I did not have a copy of this document, no. That was in January 2012, this-- Q. That is when you receive a copy of it? A. I sighted. Q. But it was not signed? A. Correct. Q. On 30 May or thereabouts? A. Yes. Q. And it was on behalf of you and the plaintiff by Mr Murphy, I think? A. So it states. Q. And you were at the time when instructions were given to Mr Murphy to sign that document that you and the plaintiff were shown on that document as the purchasers of the property? A. Yes, that was fact. Q. And the purchase price on that document was shown as being $75,000? SLEIGHT: I object to the question. I object on this basis. The evidence that after the contracts were signed by Pomering waived the ten per cent. HIS HONOUR: Mr Sleight, the only question which I have asked, to which you have objected, is that on that document the purchase price was shown as $75,000. SLEIGHT: I realise it can only have relevance about asking the witness what is on the only, can only be relevant if we are going to be founded on it because just asking the witness what is shown on a document is not relevant. If your Honour is going to imply or ask questions which suggest there is something wrong with the transfer, that is in my submission unfair because the contract said 75,000. The transfer is prepared in respect of the contract to show different particulars and the contractual price would result in different stamp duty and also amount paid, and Mr Pomering's unchallenged evidence is that he waived the ten per cent deposit, but he is not going to call - I object on those grounds. HIS HONOUR Q. The question I ask you, Mr Murtagh, on the transfer the purchase price was shown as $75,000? A. That is what it states. Q. Now did you ever tell the plaintiff that the purchase price was not $75,000? A. I never discussed the purchase with the plaintiff, nor did Mr Pomering. Q. When you say never discussed the purchase with the plaintiff, is that right? A. My only asking of the plaintiff was to put her name on the application form not the purchase. Q. Would you look at Ex 1, which Mr Sleight tendered this morning. (Shown) You will see on that document that the purchase price was disclosed as $75,000? A. That is what it states. Q. Did you ever tell the United Permanent building society that the purchase price was less than $75,000? A. I did not state that to them. Q. When you signed the contract did you know that the purchase price disclosed on the contract was incorrect? A. I cannot recall. Q. When you signed the mortgage documents, did you know the purchase price of which the Permanent Building Society was aware was incorrect? A. Signing of the mortgage documents, it just stated the amount that was there, 67,000, that I was liable for. Q. When you received the loan approval letter which is in front of you, did you know that the purchase price disclosed on that loan approval letter was in incorrect? SLEIGHT: I do object to these questions. I think your Honour is entering the arena with the area that I will have to recall Mr Pomering." 143The following exchange then took place with Counsel for the Defendant: "HIS HONOUR: Can I remind you of what you said at p 6 of the transcript yesterday. SLEIGHT: I do not have the benefit. HIS HONOUR: I will hand it down so you can see. (Shown) You might want to look at p 6 line 30 onwards. SLEIGHT: Well, I have to tell your Honour that what I said yesterday - I have since confirmed with Mr Pomering and what I told your Honour yesterday is wrong. HIS HONOUR: Mr Sleight, you did not correct it this morning before I asked these questions. So why didn't you correct it? If you knew it was wrong, having conferred with Mr Pomering, why didn't you correct it this morning? SLEIGHT: I have to take responsibility for that but Mr Pomering had been released from cross-examination. I have now made arrangements in the light of your Honour's questions to recall him. HIS HONOUR: Well, Mr Sleight one of the matters that I have to determine in this case is who to believe, do I not? SLEIGHT: Yes. HIS HONOUR: And the issue of what this witness knew or did not know about this aspect of the matter might be very critical to that issue, might it not? SLEIGHT: Yes your Honour. But as your Honour has - I do not shrink from the position that this witness, as your Honour has revealed, did not tell the finance company about it. But your Honour asked the question, and that remains my position, when I opened and it remains my position now that this witness did not tell - and when assessing this witness' credit that goes to this issue, what this witness did. HIS HONOUR: That is the purpose of my questions. So that I can gauge his credit, Mr Sleight. SLEIGHT: I maintain my objection. 144The questions that I asked were also asked bearing in mind the words of Lord Summer in Russell v Russell [1924] A.C. 687, at 748: "... my own view is that, in the administration of justice, nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth ... It is best that truth should out and that truth should prevail." 145As a result of the objection to the line of questions, I refrained from asking the Defendant any further questions. 146The Defendant's evidence that he "supposed" when he signed the mortgage documents, and when he signed the Contract that the Plaintiff was shown as being one of two purchasers of the Clovelly unit, and "assumed" that when he signed the loan application although "they did not give me a copy. I would have to say yes", was unconvincing. Earlier, I have quoted a part of paragraph 4 of the amended Statement of Cross-Claim in which he refers to the Plaintiff becoming a registered proprietor. 147His evidence that "they said just sign the contract" also lacked credibility. I have little doubt that despite asserting that "I cannot recall the exact full details", he must have known that the Plaintiff was shown as one of the purchasers on all of the relevant documents. He had alleged that very fact in his pleadings. 148In addition, I do not accept his evidence that he could not recall that the purchase price shown on the Contract was $75,000. 149Following the exchange to which I have referred, the Defendant called Mr Pomering who gave the following evidence: "Q. Mr Pomering, did you ever tell the finance company that provided the finance for the purchase of the unit A. Yes, I did. Q. Sorry, wait, that a ten percent deposit was not paid? A. Yes, I did tell them that. Q. When and how did you tell them that? A. Forgive my memory but I pre arranged for Michael to go and see the building society and at that point in time on the phone I did inform the relevant assessment officer for the loan that I would be gifting the ten percent deposit and that the contract price was as shown, the 75,000." 150However, in cross-examination: he said: "Q. You went to a loans assessment officer at Bondi Junction. Are you sure that the person that you gave the information to gave that information to his superiors that you know? A. No, I am not sure." 151The evidence that Mr Pomering had told anyone on behalf of the Building Society that the deposit was not required to be paid, had not appeared in Mr Pomering's affidavit. Nor did the Defendant assert that he knew that Mr Pomering had done so, or that Mr Pomering had told him that he had done so. 152In the Defendant's submissions, the following passage appears: "15. No deposit was paid on exchange of contracts in or about April 1985. This is supported by the vendor, the recipient of any deposit if it were paid. Usually, a disinterested party, but in he present case, he gives this evidence against his interest, as the motivation was to enable the purchaser to obtain funding. [The Plaintiff] admits that she would not be a party to the deception on the building society." 153Although counsel for the Defendant submitted that the statement made in Court on the first day of the hearing, to which I have referred, should not have been made, I am of the view, on the evidence overall, that the Building Society was unaware that the deposit was not required to be paid and that it proceeded with the loan upon the basis that the purchase price, which was to be paid, was $75,000. I consider that the more reliable version of the events is that the Defendant was prepared to allow the application to borrow funds for the purchase to proceed upon the basis of the sale price of $75,000, in order to enable the whole of the purchase price, which he believed could not otherwise be obtained, to be borrowed. In this way, the Defendant did, in fact, mislead the lender. 154Another example of the Defendant's evidence that I have difficulty accepting, relates to the payment for wardrobes in each of the bedrooms by the Plaintiff. In this regard, the following exchange took place during cross-examination: "Q. When your sister installed the built in robes and installed the shower screen and some other things she did, did you say so her; "gee, that's terrific, Terry. I'll take that money out of your rent money", or did you not? A. No. Q. You see, it would be most unusual, wouldn't it Mr Murtagh, for her to do those things if she was is only renting in what you say are your premises? A. Just to the cost of the shower screen was not I can't recall whether it was purchased, sorry. HIS HONOUR Q. I think the question you were asked was: If she had simply been renting, it would have been unusual for a tenant to install a built in wardrobe and pay for shower screens; I think that is the question you were asked. Do you agree or disagree? A. Therese needed a wardrobe. I already had one which was sufficient for me. I didn't want one. She put these in without my approval while I was away. Q. Did that lead to any argument when you arrived back? A. No." 155At Paragraph 13(a) and (b) of her first affidavit, the Plaintiff had stated that, at different times, she had paid for the installation of built in wardrobes in the bedrooms and new shower screens in the bathroom. The Defendant did not respond to either of these sub-paragraphs in his affidavit in reply. In particular, he had not stated that the Plaintiff had installed these without his approval or whilst he was absent from the Clovelly unit. 156There was another aspect of the Defendant's evidence that I found difficult to accept in view of the evidence of Mr Shirley. This related to charging the Plaintiff rent. In cross-examination, the Defendant gave the following evidence: "Q. When Mr Shirley moved in, you say in your affidavit he was not charged anything? A. Correct. Mr Shirley, two things: Mr Shirley had a room at his friend's place at Botany; all his furniture, personal effects and everything in there. He only resided over there because I asked him in mid June 1983, not as Therese had said, earlier than that. HIS HONOUR: I didn't (sic) think your date is wrong; you said 1983. WITNESS: 1993. I apologise, your Honour. Mr Shirley, no, he came in there to pay, he didn't have to pay rent. He already had his room at his friend's place. He already owned a caravan down at Sussex Inlet which I went to every second week. He only came over there because it was closer to his taxi at Randwick in Avoca Street, and he made no payment for rent. He paid, the utility costs were electricity and gas on my behalf, in my name. Q. So you basically would charge your sister rent but let Mr Shirley live there for nothing; is that correct? A. Correct. ... Q. Yet you say to the Court that you wanted to charge her rent but yet you would let a friend go there and live rent free? A. The reason I charged her, yes, because she was already paying rent and to come there. She was still paying the same amount, $100 a week. The friend, he only did a favour to stay in the property. He didn't have to. He was already paying rent at Daceyville, sorry, at Botany. He only did it as a favour. He wasn't paying rent. He just came there to sit and then move out. He wasn't there all the time and also yeah, that was it." 157He also gave the following evidence in answer to some questions from the Bench: "Q. Have I understood that evidence correctly, that had she not put her name on the loan application, you would not have been able to purchase the unit without her? A. Not from that loan supplier. Q. So that was a fairly big favour that she was doing for you, wasn't it, if one accepts your version of the events A. Yes. Q. that she had no interest? A. Yes. Q. So despite her having done that favour for you which resulted in, on your version of the events, you owning a property which you would not have been able to purchase without her doing what she did, you still were prepared to charge her rent. Have I grasped that correctly? A. Yes." 158Mr Shirley stated in his affidavit that he did not pay the Defendant rent for the period that he occupied the property but he paid the phone, electricity and gas bills when they were due. He confirmed, also, that the Defendant would stay at the Clovelly unit when he was in Sydney. When he was not there, "the second bedroom was vacant". 159I am unable to accept, as more probable than not, that the Plaintiff simply agreed to put her name to the loan application as a favour to the Defendant without obtaining any beneficial interest in the Clovelly unit. I am of the view that each of the parties appreciated that the only way in which she and he would be able to obtain an interest in real estate, was to, as it were, join together in purchasing a property by making a joint application for a borrowing to enable the purchase price to be paid. The property purchased was the Clovelly unit. 160I do not accept that the Plaintiff did not have to bear any responsibility for repaying the mortgage debt. It seems too much of a coincidence that the amount struck as payable by the Plaintiff when she moved into the Clovelly unit equated to about one half of the monthly mortgage repayment. 161Even if the amount she paid to the Defendant was the amount that she had been paying in rent before moving into the Clovelly unit, it does not explain why she would move in with the Defendant and pay the same amount of rent to him. I have earlier referred to the nature of their relationship which does not provide the basis for her doing so. 162As was recently said by Emmett J (as his Honour then was) in Warner v Hung; Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2), Re [2011] FCA 1123; (2011) 297 ALR 56: "48. ... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)." 163In my view, what the Defendant says was agreed to at, or about, the time of the purchase of the Clovelly unit, lacks credibility. Much more probable is that the parties agreed to purchase the Clovelly unit together because each could not do so individually. It follows, and I find, that each obtained a legal and beneficial interest in the Clovelly unit at the time of its purchase. 164I am not satisfied that there was any agreement or arrangement between the parties that they intended their respective beneficial interests to be proportionate to the contributions made to acquire the Clovelly unit and to free it from any encumbrance. It is for this reason that I do not accept the Defendant's submission that it is appropriate to simply characterise the Plaintiff's interest in the Clovelly unit, deriving from her concurrent obligation as one of the two co-borrowers, as being held by her to secure a right of indemnity, but terminating if, and when, the mortgage debt was fully repaid by the Defendant. 165However, that is not the end of the determination because an inquiry into the state of the account between the co-owners, in respect of moneys outlaid in connection with the acquisition, retention, preservation and improvement of the Clovelly unit is required to determine the precise beneficial interest of each of the parties in it. 166In this regard, I was assisted by the document that the parties forwarded following the hearing to which I shall return. 167Having considered all of the evidence, I am satisfied that the following facts regarding the purchase of the Clovelly unit are established: (a) The Plaintiff and the Defendant purchased the Clovelly unit in May 1985. (b) The folio identifier notes them as being tenants in common holding as tenants in common in equal shares. However, there was no discussion between them as to the Plaintiff's entitlement to a one undivided half share as beneficial interest in the Clovelly unit. Thus, the beneficial interest was held by them is to be determined as being in proportion to their contributions to the purchase price and associated acquisition costs. (c) The purchase price of the Clovelly unit shown on the documents was $75,000, but I accept the Defendant's, and Mr Pomering's evidence that the vendor waived the deposit ($7,500), thereby reducing the purchase price. (d) The purchase price was funded as follows: $7,500, being the deposit, was waived by the vendor; $66,766 was borrowed from the United Permanent Building Society Limited; $734 (which included the adjustment of rates) which I infer was paid by the Defendant. (I have found that he paid the balance as there was no suggestion that the Plaintiff did so and she left it to him to arrange the purchase.) (e) The Plaintiff pledged her credit, and accepted, with the Defendant, joint and several liability as mortgagor of the Clovelly unit. (f) The Defendant paid stamp duty of $1,501.50. (g) Between June 1985 and 1992, the Plaintiff paid $100 per week to the Defendant (as to which see later). The Defendant paid the monthly instalments due under the mortgage from his bank account. (h) Following the Plaintiff leaving the Clovelly unit in 1992, and until August 1995, the Defendant paid the monthly instalments due under the mortgage and all rates and other outgoings until the Plaintiff returned to live in the Clovelly unit in 2002. During this period, the Plaintiff did not pay $100 per week to him. (i) In 1993, the Defendant made several payments, totalling $34,486, towards the reduction of the mortgage debt, thereby discharging the balance of the mortgage debt in full. (j) The Plaintiff made no payments to the Defendant then until she returned to the Clovelly unit in about 2002. (k) Between 2002 and 2012, the Plaintiff paid $100 per week to the Defendant (as to which see later). (I) Following the Plaintiff leaving the Clovelly unit in 2012, the Plaintiff made no payments to the Defendant, who has paid all rates and other outgoings. However, he has enjoyed the occupation of the Clovelly unit to the exclusion of the Plaintiff. (j) The relationship between the parties has broken down. There is no prospect that the Plaintiff will ever move back to the Clovelly unit and resume occupation. (k) There was no relationship between the parties, during the period 1985 to 2012, giving rise to any principle of advancement.
Determination 168As will be obvious from the above, I am satisfied that the parties acquired the Clovelly unit in order to enable each of them to live in it for an indefinite period of time. Whilst the Plaintiff made some financial contributions, the Defendant made greater financial contributions in circumstances where it would be unconscionable to permit her to retain the benefit of the contributions made by him that are greater than his proportionate share. 169I am satisfied that there should be the imposition of a resulting trust in respect of the parties' unequal contributions to the purchase price. I am not, however, satisfied that there should be a further adjustment to the beneficial interests of the parties as a result of the unequal contributions based on the principles relied upon by the Defendant. Even though contributions to mortgage payments may, in principle, be treated as part of the parties' contributions for the purposes of a constructive trust, I am satisfied, in this case, that a constructive trust should be not be imposed. 170I propose, in the circumstances of this case, to treat the contributions to the initial purchase price separately from the repayment of the mortgage debt and the other payments. This method provides a practical way of taking into account the borrowing by both of them (without which each of them would not have been able to purchase real estate), the amounts paid in the period 1985 to 1991 by the Plaintiff and by the Defendant, the greater contribution made between late 1991 and 2002 by the Defendant, particularly in repaying the balance of the mortgage debt, and the subsequent contribution, after 2002, until 2012, by the Plaintiff. 171To prevent any unconscionable retention of benefit by the Plaintiff, created by the Defendant having paid greater than his share of the purchase price of the Clovelly unit, I propose to impose a resulting trust. In relation to the other payments, I propose to allow the contribution, with interest, by the Plaintiff, in respect of payments greater than should have been paid by the Defendant, by way of an equitable charge.
Calculations 172I have not endeavoured to pursue, with complete mathematical precision, complicated factual inquiries that will result in relatively insignificant differences in the contributions, but have adopted a broad brush and holistic approach. 173In addition, I have accepted evidence regarding expenditure given by each party, upon which there was little, or no, cross-examination, and which evidence is not otherwise supported, completely, by documentary, or other, evidence. As identified earlier, there is no evidence that either party, in making these payments, intended to make a contribution to the Clovelly unit to be shared between them, thereby precluding her, or him, making a claim for a contribution in respect of the expenditure. 174Furthermore, I have measured the value of improvements simply by reference to asserted cost of the improvements. There was no evidence of any improvement in value of the Clovelly unit by the expenditure of either party. 175There is no evidence of the costs of the solicitor acting for the parties on the purchase of the Clovelly unit and who paid those incidental costs, I shall ignore the solicitor's costs for acting on the purchase. To do otherwise would be to speculate on the quantum of costs. 176I am satisfied that the parties each contributed equally to the purchase price, which was provided by the United Permanent Building Society Limited ($66,766). (As the authorities to which I have referred make clear, they should each be treated as providing the amount financed by the mortgagee equally, since each was jointly and severally liable to the mortgagee unter the loan which the mortgage secured.) 177However, the Defendant paid the stamp duty ($1,501.50) and the additional amount of $734, which I treat as part of the purchase price and associated acquisition costs of purchase. It follows, from what I have said above, that of the total purchase price and associated acquisition costs ($69,001), at or about the time of acquisition, the Plaintiff notionally contributed $33,383 whilst the Defendant notionally contributed ($33,383), and did, contribute the balance, making his contribution, $35,618. 178Thus, the Defendant's proportionate beneficial share in the Clovelly unit is 51.62% whilst that of the Plaintiff is 48.38%. 179This leaves the subsequent contributions to the repayment of the mortgage loan and to costs and expenses associated with ownership of the Clovelly unit. As stated earlier, the Defendant made three payments, which, in total, was $34,486. 180However, as stated, the parties agreed that, in total, he paid $150,000 in capital and interest repayments (including the three amounts). These payments must have been made until about August 1993, when the final payment to discharge the debt due under the mortgage was paid. 181In relation to the disputed payments made in the period 1985 to 1991 ($3,290) and the disputed payments made in the period 2002 and 2012 ($4,950), I accept the evidence of the Plaintiff that she made the payments each week. I tend to think that had she not made payments, there would have been some complaint made by the Defendant to her about the delinquency in doing so. 182It was not suggested to the Plaintiff, in cross-examination, that the Defendant had made any complaint about her not making the weekly payments. It follows that I shall take the two amounts into account as payments made by the Plaintiff to the Defendant. 183It follows that I am satisfied that over the whole period of her occupation of the Clovelly unit, the Plaintiff contributed a total amount of $82,400. However, of this amount, only $32,900 was paid before August 1993. Thus, as at August 1993, the Plaintiff's proportion of the mortgage repayments should have been $72,570 (48.38% of the total amount of $150,000 paid by the Defendant). In my view, she should pay interest on the balance of the amount of her proportion ($39,670) from that date until 2002 (say 9 years) at Supreme Court rates applicable during that period. 184Between 2002 and 2012, the Plaintiff paid to the Defendant the amount of $49,500. Of this, $39,670 was the balance of her proportion of the mortgage payments that the Defendant had paid, but which she should have paid as a mortgagor. Even though the amount paid by her during the period from 2002 to 2012 is more than the balance she would have been required to pay, the Defendant had paid her share by 1993. In these circumstances, there should be no adjustment of amount in her favour, and the surplus ($9,830) should be regarded as on account of interest on what the Defendant had previously paid. (Subject to further submissions, I have adopted an holistic approach on this issue as to calculate the exact amount of interest would be difficult. If either party wishes to make further submissions on this aspect, I shall consider those submissions.) 185The Defendant asserts that the total amount of water rates paid was $11,535.55. The Plaintiff asserts that after 2005, she made payments of $3,749.25. The Defendant denies this, asserting that the only payments made by her were the weekly amounts and that if she did pay any water rates, what she paid was deducted from the amount that she paid him. 186I accept the evidence of the Plaintiff that she made the additional payments that she asserts. I tend to think that had she deducted the payments from the "rent", there would have been complaint made by the Defendant to her about doing so. It was not suggested to the Plaintiff, in cross-examination, that the Defendant had made any such complaint. It follows that I shall take the amount asserted as having been paid into account as a payment made by the Plaintiff to the Defendant. This results in the finding that the Defendant paid $7,786.30. Again, this was more than his share. 187The Plaintiff should repay to the Defendant the amount required to ensure that the total contributions by each of the parties equates to the proportionate beneficial shares in the Clovelly unit referred to above. On my calculations, the amount payable by her to him is $1,831.65. 188The Defendant asserts that the total amount of Council rates paid was $16,946.40. The Plaintiff asserts that after 2005, she made payments of $5,445.10. The Defendant denies this, asserting that the only payments made by her were the weekly amounts, and that if she did pay any Council rates, what she paid was deducted from the amount that she paid to the Defendant. 189For the same reasons, I tend to think that since she was living in the Clovelly unit, had she deducted the payments from the "rent", there would have been some complaint made by the Defendant to her about doing so. It was not suggested to the Plaintiff, in cross-examination, that the Defendant had made any such complaint. This results in the finding that the Defendant paid $11,501.30. Again, this was more than his share. 190The Plaintiff should repay to the Defendant the amount required to ensure that the total contributions by each equate to the proportionate beneficial shares in the Clovelly unit referred to above. On my calculations, the amount payable by her to him is $2,753.57. 191The Defendant asserts that he has paid $23,005 for capital improvements. However, he has only produced source documents for improvements totalling $5,055. Yet, he was not specifically challenged on his evidence about the amount paid. I propose to accept that he made those payments. The Plaintiff asserts that she has paid $5,176 for capital improvements. However, she produced no source documents for those costs. She was not challenged on her evidence about the amount paid. I propose to accept that she made those payments. 192Taking the total of the payments made by each of the parties on capital improvements ($28,181), the Defendant has paid more than his share of these payments. The Plaintiff should pay to the Defendant the amount required to ensure that the total contributions by each equate to the proportionate beneficial shares in the Clovelly unit referred to above. On my calculations, the amount payable by her to him is $8,457.97. 193The parties have agreed that the Defendant has paid ordinary strata levies of $39,489.72. The Plaintiff does not assert that she paid any of these levies. Thus, the Defendant has paid more than his share. The Plaintiff should pay to the Defendant the amount required to ensure that the total contributions by each equate to the proportionate beneficial shares in the Clovelly unit referred to above. On my calculations, the amount payable by her to him is $19,105.12. 194The parties agreed that the Defendant had paid special levies of $33,864.74. They also agreed that the Plaintiff had paid $4,500 to the Defendant. I propose to treat the Plaintiff's payment as an amount paid on account of her share of the special levies. Whether or not it was a debt owed by the Defendant to the Plaintiff, does not really matter. On these figures, the Defendant has paid more than his share. The Plaintiff should pay to the Defendant the amount required to ensure that the total contributions by each equate to the proportionate beneficial shares in the Clovelly unit referred to above. On my calculations, the amount payable by her to him is $11,883.76. 195Adding the amounts payable to which I have referred, the total (other than interest) that the Plaintiff should pay to the Defendant is $44,032.07. 196Using the Amended Calculations on Contributions submitted after the conclusion of the proceedings, and the findings that I have made, the following table provides what I believe to be the way in which the amount due to the Defendant from the Plaintiff should be calculated: Acquisition costs Total Plaintiff Defendant
Purchase price $66,766.00 $33,383.00 $33,383.00 Stamp duty $1,501.00 $0.00 $1,501.20 "Additional amount" $734.00 $0.00 $734.00
Total acquisition cost $69,001.20 $33,383.00 $35,618.20
Proportionate beneficial share 48.38% 51.62%
Capital and interest repayments Total Defendant Plaintiff paid to Defendant
1985 - 1991 $150,000 $150,000 $32,900 2002 - 2012 Nil Nil $49,500
Subsequent contribution Total Plaintiff Defendant
Water rates $11,535.55 $3,749.25 $7,786.30 Council rates $16,946.40 $5,445.10 $11,501.30 Capital improvements $28,181.00 $5,176.00 $23,005.00 Ordinary strata levies $39,489.72 $0.00 $39,489.72 Special levies $33,864.74 $4,500.00 $29,364.74
Total subsequent contribution $130,017.41 $18,870.35 $111,147.06 Contribution payable proportionate to beneficial share $62,902.42 $67,114.99
197I consider that the Defendant should also receive some interest on this amount, as he paid these amounts, albeit at different times, without receiving immediate reimbursement from the Plaintiff. 198There was no evidence of the appropriate rates of interest, or for what period interest should be paid on the additional amounts. Subject to further submissions, the rate of interest should be Supreme Court rates and the period on which interest is to be paid on the associated costs and expenses totalling $44,032.07 should be no more than about 2 years. (Again, I have adopted an holistic approach.) 199Until payment of the total amount, it should constitute a charge on the Plaintiff's share of the proceeds of sale of the Clovelly unit. I do not think it is necessary to impose a constructive trust since, in all the circumstances, there is an appropriate equitable remedy which falls short of the imposition of such a trust. Appropriate equitable relief is for a charge to be imposed over the Plaintiff's interest in the Clovelly unit. 200The Short Minutes of Order, which the parties should prepare, should also deal with the method of sale of the Clovelly unit unless the parties are able to reach agreement on what should be done, otherwise, to terminate their financial interrelationship. 201I have also considered that the Defendant has been in sole occupation, with his de facto partner, since about February 2012 to the exclusion of the Plaintiff. In this regard, I note what was said in McKay v McKay [2008] NSWSC 177, per Brereton J, at [51]; in Callow v Rupchev [2009] NSWCA 148 per Beazley and Basten JJA and Handley AJA, at [59]-[60] and by Ball J in Payne v Rowe [2012] NSWSC 685 at [111] - [115]. He should bear all of the outgoings on the Clovelly unit until its sale. 202In considering the rate and period of interest, I have given consideration to the occupation fee that would have been payable by him to the Plaintiff since she has not been in occupation for over 18 months. 203I shall allow the parties an opportunity to consider the calculations set out and make any submissions regarding any mathematical errors. I would hope that any agreed mathematical, or other, errors in the accounting, will be able to be corrected by agreement of the parties, that interest rates, and the amount of interest could be calculated, and that Short Minutes of Orders reflecting these reasons would be prepared. 204On the question of costs, my present view is that each of the parties has had limited success in relation to the claim made by her and him. Each should bear her, and his, own costs, respectively, of the proceedings. However, I am prepared to hear any argument on costs when the matter is listed before me for any further argument or for the making orders. 205I shall stand the matter to a date suitable to the parties and to the Court.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2013
Murtagh
Murtagh
[2004] WASC 266
[1981] HCA 56
(1987) 164 CLR 137
(1984) 155 CLR 242
(2006) 227 CLR 278
(1984) 1 NSWLR 687
(1985) 15 NSWLR 43
(1985) 160 CLR 583
(2011) 297 ALR 56
(1995) 49 NSWLR 315
(1981) 37 ALR 55
(1988) 15 NSWLR 43
(1905) 2 CLR 387
(1940) 63 CLR 691
(1938) 60 CLR 336
[1938] HCA 34