Plaintiff v Defendant

1 Nagi Zekry ('the plaintiff') is the adult son of Margritte Zekry ('the defendant') and her late husband, Samir Zekry ('Samir'). The defendant and Samir also have an adult daughter, Nermin Zekry-Gabrielle ('Nermin').

2 The plaintiff claims that, from 2003 until the death of Samir in 2017, he made financial and non-financial contributions towards the purchase and maintenance of the following five properties:

(a) the family home at 8 Durang Court, Endeavour Hills ('the Endeavour Hills property'), which was sold in 2009;

(b) 38 Robjant Street, Hampton Park ('the Hampton Park property'), which was purchased in 2003;

(c) 20 Stud Road, Dandenong ('the Stud Road property'), which was purchased in 2005 and sold in 2016;

(d) 1 Aratula Street, Dandenong ('the Aratula Street property'), which was purchased in 2011 and sold in 2017; and

(e) 36 Santa Cruz Boulevard, Roxburgh Park ('the Roxburgh Park property'), which was purchased in 2017.

3 The plaintiff alleges that he, Samir and the defendant reached various agreements with regard to the beneficial ownership of the five properties. The final agreement reached before Samir's death was said to be a 2017 agreement that Samir and the defendant would reside in, and beneficially own, the Roxburgh Park property and the plaintiff would reside in, and beneficially own, the Hampton Park property.

4 At the time of trial the defendant was the registered proprietor of the Hampton Park and Roxburgh Park properties. The Hampton Park property is subject to a contract of sale, but due to the plaintiff's caveat on the title, settlement has not yet taken place. Pending the outcome of this proceeding, the defendant and the purchaser have entered into a license agreement in respect of the purchaser's occupation of the property.

5 On 16 May 2018, the plaintiff filed this proceeding by writ and statement of claim. On 1 October 2018, the plaintiff filed an amended statement of claim. The defendant filed her defence on 11 October 2018. The plaintiff subsequently filed two further amended statements of claim on 31 October 2018 and 22 March 2019. On 12 April 2019, the defendant filed an amended defence to the second further amended statement of claim.

6 The parties attended a mediation on 29 April 2019, which failed to resolve the dispute between them.

7 At the trial, the plaintiff, Nermin and a friend of the plaintiff, Ho Way Ginh, gave evidence in support of the plaintiff's case. The defendant gave evidence through an interpreter in support of her defence.

8 In 1986, the Zekry family comprising of Samir, the defendant, the plaintiff and Nermin, migrated to Australia from Egypt. At that time, the plaintiff was aged 15 years. When the family first arrived in Australia they lived together in various rental properties in Melbourne before Samir and the defendant purchased the Endeavour Hills property in 1991.

9 In 1992, the plaintiff purchased his own block of land in Hallam. In 1993, the plaintiff and Samir purchased an investment property at 27 Hemmings Street, Dandenong. Both of those properties were sold in 1999.

10 The plaintiff also owned two other properties, at 1450 Heatherton Road, Dandenong, and 112 James Street, Dandenong. The plaintiff said that he could not remember when he purchased those properties, but agreed that he was servicing loans on these properties between 2004 and 2014, when they were sold.

11 On 13 March 2003, Samir became the registered proprietor of the Hampton Park property.

12 On 13 July 2004, title to the Endeavour Hills property was transferred from Samir and the defendant jointly to Samir solely. A caveat was subsequently lodged on the property in the defendant's name.

13 On 5 September 2005, Samir became the sole registered proprietor of the Stud Road property. The property had a fire-damaged house situated on it, which was demolished in 2009.

14 On or about 11 February 2009, the Endeavour Hills property was sold.

15 On 14 October 2011, the defendant became the sole registered proprietor of the Aratula Street property. The property was subject to a mortgage with Westpac in the defendant's name. It was not disputed that the Aratula Street property was purchased so that the defendant could be closer to her mother who was in failing health.

16 On or about 6 May 2016, Samir sold the Stud Road property.

17 On 9 February 2017, Samir transferred title to the Hampton Park property from himself to the defendant. The consideration for the transfer was 'natural love and affection'.

18 On 11 May 2017, after the death of the defendant's mother, the defendant sold the Aratula Street property for approximately $750,000.

19 On 12 July 2017, the defendant became the registered proprietor of the Roxburgh Park property, subject to a mortgage with Westpac.

21 On 19 February 2018, the plaintiff filed a caveat on the title of the Hampton Park property claiming an interest over the freehold estate absolutely on the grounds of a 'partly performed oral agreement'. This proceeding was commenced to support the caveat.

22 At the time of trial, the defendant remained the registered proprietor of both the Hampton Park property and the Roxburgh Park property. As stated, the Hampton Park property has been sold but settlement cannot occur while the plaintiff's caveat remains on the title.

23 In about June 2018, the defendant took out an interim intervention order against the plaintiff requiring him to leave the Hampton Park property. The defendant authorised her brother, Youssef, to take care of the cleaning up of the Hampton Park property. On numerous occasions the police were called due to the plaintiff's aggressive behaviour towards removalists. The plaintiff alleged that, while cleaning out the property, Youssef destroyed some of his property, including receipts and invoices for various payments.

24 In his second further amended statement of claim, the plaintiff seeks the following relief:

A. A declaration that the defendant holds her interest in the Hampton Park Property on constructive trust for the plaintiff to the extent of an absolute interest therein.

AA. Alternatively, a declaration that the defendant holds her interest in the Hampton Park property and/or the Roxburgh Park Property on constructive trust for the plaintiff to the extent of such proportionate part or share therein as the Court may determine.

B. An order that the unencumbered legal title of the Hampton Park Property and/or the Roxburgh Park Property (subject to any mortgage now owing over that property) be transferred to him in proportion with his beneficial interest, and that the Defendant do all things necessary to effect that transfer.

C. Alternatively, equitable compensation.

D. Interest.

E. Costs.

F. Such further or other orders as the Court sees fit.

25 The plaintiff gave oral evidence at trial and submitted as follows:

(a) Between 2003 and 2009, he made financial and non-financial contributions towards the Endeavour Hills property, including a contribution of $40,000 towards repairs and renovations to the property.

(b) At the time that the Hampton Park property was purchased in 2003, a common intention was formed that the beneficial interest in the property would be split 50 per cent in favour of the plaintiff and 50 per cent in favour of the defendant and Samir, alternatively in fair proportions according to their financial and non-financial contributions ('the 2003 common intention'). Between 2003 and 2018, in reliance on the 2003 common intention, the plaintiff made financial and non-financial contributions to the property including: a contribution of $24,000 towards the deposit; contributions to subsequent loan repayments, including paying $500 a month between 2003 and 2005; and a contribution of $40,000 towards repairs and renovations.

(c) At the time that the Stud Road property was purchased in 2005, a common intention was formed that the beneficial interest in the property would be split 50 per cent in favour of the plaintiff and 50 per cent in favour of the defendant and Samir, alternatively in fair proportions according to their financial and non-financial contributions ('the 2005 common intention'). In reliance on the 2005 common intention the plaintiff made financial and non-financial contributions to the property between 2005 and 2016, including: a contribution of $26,500 towards the deposit; contributions to subsequent loan repayments including a payment of $40,000 when the loan fell into arrears; a contribution of at least $60,000 towards renovations to the property between roughly 2005 and 2008; and payment for the demolition of the house on the property in 2009.

(d) At the time that the Aratula Street property was purchased in 2011, a common intention was formed that the beneficial interest in the property would be split 50 per cent in favour of the plaintiff and 50 per cent in favour of the defendant and Samir, alternatively in fair proportions according to their financial and non-financial contributions ('the 2011 common intention'). Between 2011 and 2016 the plaintiff made financial and non-financial contributions towards the Aratula Street property, including a contribution of $35,000 towards the purchase price, and a contribution of approximately $60,000 to renovations to the property.

(e) At the time that the Roxburgh Park property was purchased in 2017, a common intention was formed that Samir and the defendant would reside in and own the property beneficially and the plaintiff would reside in and own the Hampton Park property beneficially ('the 2017 common intention'). The purchase price for the Roxburgh Park property was said to have been paid with the proceeds from the sale of the Stud Road and Aratula Street properties.

(f) In the circumstances there was a joint relationship or endeavour between the plaintiff, Samir and the defendant for the acquisition, maintenance, improvement sale of the properties, with each of the plaintiff, Samir and the defendant contributing to the joint endeavour ('the joint endeavour').

26 The defendant denied that she was party to any of the alleged common intentions and put the plaintiff to proof on his claims. Her evidence was to the effect that she was not present at any conversations between the plaintiff and Samir regarding the beneficial ownership of any of the properties.

27 The defendant and Samir's marriage was described as a traditional Egyptian marriage. Samir controlled the family's finances while the defendant was predominately a homemaker. During his evidence, the plaintiff agreed that the defendant 'never was involved in money' and that Samir was the 'bread maker'.

28 However, it was the defendant's undisputed evidence that she worked for a short period in a dairy factory before suffering a workplace injury for which she received a compensation payment. This payment was distributed between her children and Samir. After her injury, the defendant began receiving a disability support pension. Those funds were given to Samir, who managed the family's finances.

The plaintiff's relationship with Samir and the defendant

29 On the plaintiff's account, he 'substantially resided' with his parents in their various properties until 2017. The plaintiff described Samir as his best friend and business partner. In 1990, at 19 years of age, he began working full-time with his father at a company called All Data Computers. At 20 years of age, the plaintiff started his own business called Amazing Computers. He said that Samir assisted him in this business after hours.

30 In 2001, after the plaintiff returned from a period living in Egypt, he and his father started a business selling power tools together as a joint venture. The decision to undertake this venture was said to have been made in the presence of his mother and sister. The plaintiff said that the joint venture eventually turned to property investment and that they had an arrangement in which everything they gained would be split 'fifty-fifty'.

31 On the defendant's account, she and Samir were estranged from the plaintiff, as the plaintiff and Samir frequently fought over money. The plaintiff stopped living with her and Samir when he was about 19 years old. The defendant said that the relationship between Samir and the plaintiff was 'alright' when they lived at the Endeavour Hills property but then they started to argue about money and the plaintiff left. The defendant said that she and Samir had almost no communication with the plaintiff for almost 17 years due to his aggressive behaviour.

32 In relation to the plaintiff and Samir's working arrangements, the defendant gave evidence that the plaintiff and Samir worked together in a shop for approximately four months, until Samir decided not to continue working with the plaintiff. The defendant said that Samir handled the family's finances and she did not know about a shared 'fifty-fifty' working arrangement between the plaintiff and Samir. The defendant did not know whether they worked together to purchase properties and improve them.

33 Nermin gave evidence that the plaintiff and Samir worked together and she had heard that they did 'everything in half'. Nermin said that it was usually her father who talked about a 'fifty-fifty' arrangement but that the defendant had also told her this, stating 'when my dad was alive, ah, she was agree and, ah, never, never, never say anything opposite'. When asked how she knew that the defendant agreed, Nermin gave evidence that the defendant had said 'Yes, he - he owns this place, he help us with this place'. It was not clear on Nermin's evidence to which property the conversation was said to refer. Nermin also accepted she was not party to any conversations where any agreements in relation to the property were formed.

The Hampton Park property and the 2003 common intention

34 The plaintiff said that he and Samir discovered the Hampton Park property and that he, Samir and the defendant inspected the property together. The 2003 common intention was said to have been formed in a conversation involving the plaintiff, Samir and the defendant while sitting at the family's dinner table. The plaintiff said that the defendant agreed to a proposed 'fifty-fifty' arrangement. When he was pressed on the defendant's input into the conversation, the plaintiff said that there was no objection and that she was listening and agreeing to what was being said. When asked how she was agreeing the plaintiff answered: '[l]ike, if - if dad says, "What about if I pay more, would I get more", or something like this, she say, "No, he's your son".' The plaintiff denied suggestions from counsel that this conversation, said to form the agreement upon which the common intention was based, either did not involve the defendant or never occurred at all.

35 The defendant denied that there was any such agreement between her, Samir and the plaintiff. She gave evidence that she did not discuss any agreement relating to the property with the plaintiff and was not present at any conversations between the plaintiff and Samir regarding arrangements in relation to the property.

The plaintiff's contributions to the Hampton Park property

36 The plaintiff said that he paid $24,000 towards the deposit on the Hampton Park property. The plaintiff pointed to a transaction in the amount of $20,112.45 withdrawn from his bank account, which he said went towards settlement on 14 March 2003. According to the plaintiff, this sum was the balance of the deposit remaining after adjustments. The defendant's evidence was that she did not know whether the plaintiff contributed to the deposit for the Hampton Park property and that Samir did not tell her of any such contribution, nor did he discuss with her any conversations he had with the plaintiff.

37 The plaintiff also claimed that, between 2003 and 2005, he made contributions towards the mortgage repayments for the Hampton Park property in the form of bank transfers from his account to his father's loan account. During cross-examination, he said that he paid half of the loan repayments between March 2003 and September 2005, paying $500 each month.

38 The defendant denied that the plaintiff made payments towards the mortgage on the Hampton Park property between 2003 and 2005. When asked who was paying the Hampton Park mortgage, she said her husband was working and she was contributing with her money from Centrelink.

39 The plaintiff also said that he undertook and funded substantial renovations to the Hampton Park property in 2012. The plaintiff said those renovations cost $40,000. The defendant denied that renovations occurred on the Hampton Park property.

40 The plaintiff pointed to bank statements as documentary evidence of his contributions to the Hampton Park property. Those statements did not identify the purpose of certain payments. The plaintiff denied a suggestion that the payments were applied towards his own debts and not towards the Hampton Park property. There was no documentary evidence comprising the loan schedule from the bank, or the terms of the mortgage.

The Stud Road property and the 2005 common intention

41 The plaintiff gave evidence that the Stud Road property was an investment property purchased by himself and Samir. The plaintiff was named as the purchaser on the contract of sale, but later nominated Samir as purchaser. The plaintiff pointed to this nomination as evidence that he was not estranged from his father and that they had a good relationship.

42 The plaintiff said that the 2005 common intention was formed during a conversation in which he, the defendant and Samir sat down and discussed the purchase of the Stud Road property. He said that he was certain the defendant was present at this conversation, and that if she disagreed with the arrangement she would have said so at the time.

43 The defendant said she was not present in any conversations about the purchase of the Stud Road property, and Samir did not discuss any conversations he had with the plaintiff about the property with her.

The plaintiff's contributions to the Stud Road property

44 The plaintiff claimed that he contributed $26,500 towards the deposit on the Stud Road property, which he gave to Samir in cash. The plaintiff pointed to a withdrawal of $25,000 from his bank account on 16 August 2005 as evidence of this contribution. However, he was unable to provide documentary evidence which shows that these funds were applied towards the deposit. The equity in the Endeavour Hills and Hampton Park properties was also said to have been applied towards the purchase of the property.

45 When asked if she knew anything about her son's contribution to the purchase of the Stud Road property, the defendant replied 'maybe, yeah' but that she did not know for certain.

46 The plaintiff said that he arranged for Samir's existing loans on the Endeavour Hills and Hampton Park properties to be refinanced and consolidated with the loan on the Stud Road property ('the consolidated loan'). From 2005, he made repayments of $3,700 a month on the consolidated loan.[1] The plaintiff gave evidence that repayments were made through bank transfers as well as through cash payments into the consolidated loan account. In cross-examination, the plaintiff conceded that his bank statements do not state that the purpose of particular bank transfers was to apply funds towards the properties, instead the description for these transfers is merely 'loan'. He agreed with the suggestion that he is a commercial person who understands online bank transfers, and that he could have put 'Dad loan' or 'Samir loan' or 'Stud Road loan' in the description. The plaintiff denied a suggestion that the bank transfers were made to pay his own debts and not those of Samir. The plaintiff did not produce any receipts or other documents evidencing the cash amounts he said that he paid towards the consolidated loan.

47 In his further amended statement of claim, the plaintiff claimed that, as the consolidated loan had fallen into arrears, he made a lump sum payment of $40,000 on 21 September 2007. In oral evidence, the plaintiff said that the date provided in the statement of claim was a guess but was not correct, and that this payment was actually divided into several instalments paid over a longer period of time. The plaintiff denied that the $40,000 withdrawn from his account was to pay off his own debt. Again, no loan documents were produced by the plaintiff.

48 The defendant's evidence was that she was not aware whether the plaintiff made monthly payments to Samir between September 2005 and 2006 towards the property. It was her understanding that Samir was paying the mortgage. The defendant said that when the Stud Road property was purchased the relationship between the plaintiff and his father was 'almost not good', she did not see her son but her husband would come home upset and tell her that the plaintiff had been asking for money.

49 At the time of purchase, a fire-damaged house was situate on the Stud Road property. The plaintiff gave evidence that he made financial contributions of at least $60,000 towards renovations to the property over a period of three years between roughly 2005 and 2008. He said that he did not keep track of what he was spending on the renovations 'because it was my dad's and it was my mum, which I care for, and I didn't care what I give to them.' The plaintiff said the amounts for renovations were paid out of his or Samir's credit cards and that from 2005 to 2008 he was making the repayments on those cards. The plaintiff said he made '$16,000 or something' in credit card repayments.

50 The plaintiff said that his contributions were for minor structural work, the replacement of all of the walls, including plastering the walls, cornices, architraves and doors. He also said that he made non-financial contributions such as helping Samir find finance, helping him to shop around to find properties, helping him to renovate the properties, talking to council, arranging tradespeople, buying building materials and maintaining the garden.

51 The plaintiff did not produce any invoices or receipts for the alleged renovations to the Stud Road property. He alleged the invoices and materials were 'probably' destroyed by his uncle, Youssef. When asked where the planning applications and surveyor invoices were, the plaintiff said he could apply to his local council to provide him with copies. The plaintiff also claimed he paid architect fees, but that the invoice was probably destroyed by Youssef. The plaintiff suggested that he could get a copy of the architect's plans from his email, if needed. No planning applications, surveyor invoices or architect plans were produced at trial.

52 The plaintiff said that the renovations to the Stud Road property were not completed and the house was demolished in 2009. He claimed that he paid for the demolition works, but again alleged that the invoice and receipt for those works were taken by Youssef.

53 The defendant denied that the plaintiff undertook and paid for substantial renovations to the Stud Road property. She considered that it was vacant land, which was sold by Samir. The defendant could not remember her husband making plans with the council to renovate or develop the Stud Road property. The defendant stated that the house on the property was fire-damaged when it was purchased and that '[t]hey bought it for the land. They demolished it, and they sold it.' Asked who is 'they', she said her husband. The defendant said that she was not present in conversations about the Stud Road property but that she knew the property was going to be demolished and sold as she used to go there with her husband when he mowed the lawn. She could not recall if it was her husband who said he was going to demolish the property and develop it.

54 The defendant said that the plaintiff was upset when Samir sold the Stud Road property. When she was asked how she knew this, the defendant said Samir may have told her, but she could not remember. The defendant also said that the plaintiff and Samir agreed together to demolish the house and leave it as vacant land, but that she did not have anything to do with that agreement and was not involved in those discussions.

The plaintiff's contributions to the Endeavour Hills property

55 On or about 11 February 2009, the Endeavour Hills property was sold. The plaintiff said that the proceeds of the sale were applied towards the outstanding loans on the remaining two properties, being the Hampton Park and Stud Road properties. The plaintiff said that between 2003 and 2009, he made financial and non-financial contributions towards the Endeavour Hills property, including repainting and renovating the kitchen and garage. He said that he contributed $40,000 towards those repairs and renovations. The plaintiff said that he did not have evidence of these contributions, again alleging that the evidence was destroyed or stolen by his uncle, Youssef. The plaintiff did, however, suggest that his credit card statements could be followed to show that he was purchasing building material.

56 The defendant's evidence in relation to the Endeavour Hills property was that, as Samir looked after all financial and property matters, she was not aware that the Endeavour Hills property was transferred to Samir's name in 2004. She was also unaware that a caveat was subsequently lodged over the property in her name. The defendant denied that the renovations alleged by the plaintiff were undertaken, she said that the Endeavour Hills property was new and did not need any work done to it.

The Aratula Street property and the 2011 common intention

57 The plaintiff's evidence was that there was an agreement to jointly purchase the Aratula Street property to please the defendant so that she could be closer to her mother. He said that the purchase price for the property was financed through a contribution of $35,000 by him and $120,000 by Samir from the proceeds of the sale of the Endeavour Hills property.

58 The property was subject to a mortgage held in the defendant's name, initially with Westpac and, on the plaintiff's evidence, subsequently with RAMS. The plaintiff denied that this loan was arranged by him and Samir without the defendant's knowledge or consent. The plaintiff agreed that the defendant did not have anything to do with the family's financial matters but said that she signed the loan documents on the basis of their agreement. The plaintiff said that if the defendant had not agreed she would not have signed. The plaintiff's evidence was also that the defendant did not have independent advice when she signed the mortgage.

59 The defendant denied having had any discussions with the plaintiff regarding him owning half of the Aratula Street property and her and Samir owning the other half. She stated that if such discussions took place between Samir and the plaintiff, she was not present.

60 Although the RAMS home loan on the Aratula Street property was in the defendant's name, the plaintiff's post office box was listed as the borrower's address. The defendant said that she does not know anything about the RAMS loan. She said she does not have a post office box address and receives her mail to her home. She said that it is possible Samir organised the loan but she does not know.

61 The plaintiff said that the property was purchased from a friend of his and he paid the deposit of $35,000 in cash. The plaintiff relied upon a cash receipt showing that the payment was received from the defendant. The plaintiff said that the receipt was in his handwriting and was created because the bank wanted to see receipts of the payments. The vendor was not called to give evidence and the defendant said she did not know whether she contributed to the purchase price of the Aratula Street property.

62 The plaintiff claims that he financed the loan repayments for the property. Asked for evidence that he was making these payments, the plaintiff once again pointed to his bank statements. The defendant said she did not know anything about the plaintiff paying the mortgage for the Aratula street property.

63 The plaintiff also claims that he spent approximately $60,000 on renovations to the Aratula Street property. The plaintiff said that he financed the renovations with a loan of $100,000 from his friend, Ho Way Ginh. Ho Way Ginh's evidence was limited to confirming that she did give the plaintiff such a loan. The plaintiff also said that his contributions were also evidenced by his credit card payments.

64 The plaintiff said that the renovations were made to the property to make it more suitable for the defendant. He said that the house was repainted, walls were reconstructed, the floors were polished and work was done to the kitchen, living area, laundry and garage.

65 The defendant agreed that there were some renovations and repairs to the Aratula Street property. She said that the plaintiff assisted Samir with the renovations, by bringing in tradespeople to do the repairs. The defendant said that she did not have any conversations with her son while he was helping with the renovations to the Aratula Street property. The defendant also said that she did not see the plaintiff give Samir cash at any stage, and that there were no discussions between the plaintiff and Samir apart from the plaintiff helping with renovations.

The Roxburgh Park property and the 2017 common intention

66 The plaintiff gave evidence that in early 2017 he, Samir and the defendant had discussed the need to find another property that was more convenient for the defendant. On the plaintiff's account, in January or February 2017, while he was living with his parents at the Hampton Park property, he, the defendant and Samir discussed the purchase of the Roxburgh Park property. He said that it was agreed that he would stay at the Hampton Park property and the defendant and Samir would live at the Roxburgh Park property.

67 The plaintiff said that it was agreed between himself, Samir and the defendant that the 9 February 2017 transfer of title to the Hampton Park property, from Samir to the defendant solely, was temporary and that the property would be transferred to his name. The transfer was said to have been made because it had been difficult for the plaintiff and Samir to obtain a loan for a further property, so they had been advised to transfer the Hampton Park property to the defendant's name and purchase the future property in her name using their funds. The plaintiff also said that 'it was a clear agreement... that the Hampton Park [property] is mine, but it was delayed till Roxburgh Park settled and the finance is settled.' The plaintiff said that the defendant agreed with the purchase of the Roxburgh Park property and was thankful to the plaintiff and Samir for taking care of her.

68 The plaintiff's evidence was that Samir did not want to purchase the Roxburgh Park property in his own name, and that the defendant was party to conversations about finance and putting the Roxburgh Park property in her name. He said that she agreed to this course. When asked whether the defendant had legal advice on what would happen to her pension if the property were put in her name, the plaintiff said 'We deal with that. We'd take care of her. I will take care of her finance.'

69 The plaintiff said that the defendant agreed and signed the contract of sale. He denied suggestions from counsel that the defendant had no knowledge of the property being put in her name; that there was an agreement between him and Samir that had nothing to do with the defendant; and that at no time was there an agreement that he would have title to the Hampton Park property.

70 The defendant said that Samir purchased the Roxburgh Park property while she was in hospital after having a fall at the Hampton Park property. The defendant said she and Samir discussed the purchase of the property but the plaintiff was not present at those discussions. The defendant said she could not remember signing any legal documents or bank documentation regarding the property and she does not recall any conversation about the plaintiff owning the Hampton Park property and she and Samir owning the Roxburgh Park property. The defendant said that Samir and the plaintiff did not talk to each other when the Roxburgh Park property was purchased, and that she did not know where the plaintiff was living at the time.

71 The defendant's evidence was that Samir paid the mortgage for the Roxburgh Park property. Her Centrelink payments ceased as she had two properties in her name. She said she did not know anything about the plaintiff making mortgage repayments on the Roxburgh Park property, and that he had never given her money or paid anything for her. The defendant did not remember conversations concerning the Roxburgh Park property around the kitchen table at the Hampton Park property.

72 The plaintiff said that the Roxburgh Park property was purchased with the proceeds from the sale of the Stud Road and Aratula Street properties. The plaintiff also gave evidence that the proceeds of the 2016 sale of the Stud Road property were used to discharge a consolidated loan with a remaining balance of $200,000. The plaintiff contended that this is evidenced by his father's bank statements. However, the plaintiff conceded that the loan account does not say that the final repayment, made by Samir on 3 May 2016, comes from the proceeds of sale of the Stud Road property.

73 The plaintiff said that after Samir passed away on 14 December 2017, he (the plaintiff) remained living at the Hampton Park property while the defendant was living at the Roxburgh Park property.

74 The plaintiff also owned two other properties throughout the relevant period, one at 1450 Heatherton Road Dandenong and another at 112 James Street Dandenong. The plaintiff gave evidence that he sold both of those properties in 2014 for $385,000 each. The plaintiff said that he could not remember when he purchased these properties but agreed that he was servicing loans on these properties from 2004 up to 2014, at the same time he was making loan repayments on the properties registered to Samir and/or the defendant. He also said that he borrowed $364,000 against the equity in his own houses to support his parent's loans.

75 No documentary evidence was produced at trial in relation to these properties. Nor did the plaintiff provide any of his tax returns or evidence of his income throughout the relevant periods. This was notwithstanding that by letter dated 16 May 2019, the defendant's solicitors wrote to the plaintiff's solicitor seeking discovery of, inter alia:

(a) the plaintiff's employment history between 2003 and 2018 inclusive;

(b) the plaintiff's tax returns between 2003 and 2018 inclusive; and

(c) details of the plaintiff's income earning capacity between 2003 and 2018.

The plaintiff claimed that he was not aware of this letter. Although he was unable to answer questions about his income throughout the relevant period, the plaintiff said that he was self-employed for most of his working life and had fluctuating income.

76 Throughout his evidence the plaintiff placed significant weight on bank account statements, which he said detail transfers from his personal bank and loan accounts to Samir's Bank of Melbourne and Westpac loan accounts, and to the alleged RAMS loan account in the defendant's name. The plaintiff submitted that these statements demonstrated his alleged financial contributions to the relevant properties. The plaintiff tendered a table prepared by him titled 'Transactions from Nagi's Account to Samir's Loan Account' ('the transactions table') summarising such transactions from his bank accounts.

77 The plaintiff submitted that the transactions table was highly probative evidence of his financial contributions to the relevant properties, as there is no other reasonable explanation for him making payments from his bank account towards the loan accounts. It was said to demonstrate that, between 2004 to 2012, he made repayments of $84,040.29 from his account which can be directly cross-referenced and identified in Samir's loan accounts.

78 However, as the defendant submitted, the transactions table is of itself of no probative value. The table is merely a summary showing payments made from the plaintiff's bank account, and does not assist the plaintiff in demonstrating that the transfers from his accounts were made for the purposes of financing the relevant properties, were referable to the alleged common intentions or joint endeavour or, importantly, that the defendant was aware of the payments.

79 There was an otherwise noticeable absence of documentary evidence relating to the plaintiff's contributions towards the relevant properties. For example, there was no documentary evidence regarding: the loan on the Hampton Park property, the loans the plaintiff had on the properties he owned in his own right, the consolidated loan, the plaintiff and Samir's working business arrangements, the plaintiff's income, or of the renovations and repairs said to have been undertaken on the Endeavour Hills, Hampton Park, Stud Road and Aratula Street properties.

80 The plaintiff's claim is made on the basis that he holds a beneficial interest in the Hampton Park property and/or the Roxburgh Park property pursuant to a common intention constructive trust or joint endeavour constructive trust (also referred to as an unconscionability constructive trust).

81 As was stated in Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc:

The term constructive trust is used in various manners to identify a remedy provided by a court of equity.[2] Some variations of constructive trusts create proprietary interests while some merely impose a personal liability.[3] The chief motivation of the courts of equity in imposing a constructive trust over property is to ensure that, 'when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee'.[4]

The imposition of a constructive trust over property is a serious measure. A court will consider whether there is an appropriate equitable remedy that falls short of the imposition of a constructive trust.[5] Although the catalyst for the imposition of a constructive trust may be unconscionability by a party in the assertion of a legal interest free of equitable encumbrance, the construction[6] of such a remedy must be determined by reference to established equitable principles and not a vague notions of fairness or justice.[7] In particular, mere unjust enrichment is not a sufficient basis for the award of a constructive trust.[8]

There are a variety of recognised categories of constructive trusts.[9] These categories are not closed.[10]

82 The court will construe a common intention constructive trust where:

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

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

(c) it would be an equitable fraud on the claimant to deny his or her interest in the property.[11]

The party asserting a beneficial interest against the legal owner bears the onus of proving such a trust.[12]

Whether there is a common intention that a party was to have a beneficial interest in a property is usually formed at the time of the transaction and may be derived from express agreement between the parties or from conduct of the parties that supports and inference of such a common intention. Evidence of any express statements or admissions creating that intention assist in establishing whether there was a joint relationship or endeavour, such that a beneficial interest ... was created...[13]

84 It should also be noted that there is doctrinal debate surrounding the classification of common intention constructive trusts and it has been suggested that the breadth of the doctrine of joint endeavour constructive trusts in Australia should assimilate the role of common intention constructive trusts.[14]

85 In Muschinski v Dodds,[15] Deane J identified a category of constructive trust preventing a person from unconscionably asserting their legal rights to property where there had been contributions to property by the non-legal owner of that property. His Honour described such a constructive trust as arising:

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...[16]

86 However, Deane J was astute to warn that a constructive trust would not be imposed simply because it was 'fair and just' to do so, finding:

The fact that the constructive trust remains predominantly remedial does not, however, means that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles... Viewed as a remedy, the function of a constructive trust is not to render superfluous, but to reflect and enforce, the principles of the law of equity. Thus it is that there is no place in the law of this country for the notion of a 'constructive trust of a new model' which, '[b]y whatever name it is described... is... imposed by law whenever justice and good conscience' (in the sense of 'fairness' or what 'was fair') 'require it'.[17]

87 The principles expressed by Deane J in Muschinski v Dodds were later adopted by Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner.[18] There, it was observed that the foundation for the imposition of such a constructive trust is 'that a refusal to recognize the existence of the equitable interest amounts to unconscionable conduct and the trust is imposed as a remedy to circumvent that unconscionable conduct.'[19]

88 A joint endeavour constructive trust will be 'imposed regardless of the actual or presumed intention to create a trust'.[20] In Australian Building & Technical Solutions Pty Ltd v Boumelhem, Ward J summarised the proper approach as follows:

First, it is necessary that there be both a joint relationship or endeavour, in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired. ...

Secondly, the substratum of that joint relationship or endeavour, must have been removed or the joint endeavour prematurely terminated 'without attributable blame'.

Thirdly, there must be the requisite element of unconscionability - it would be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour.[21]

89 The focus of the Court's analysis is upon contributions made to the purchase, maintenance and improvement of the relevant property including contributions beyond financial contributions to the purchase price.[22] For example, in Sivritas v Sivritas, Kyrou J found that, in determining the scope of a joint endeavour constructive trust:

a court can take into account direct financial contributions to the purchase price of the property and incidental costs such as stamp duty, registration fees, solicitors' fees and bank fees... the pooling of financial resources, other financial contributions even in the absence of pooling, contributions of labour, and non-financial contributions or contributions in kind such as homemaking and parenting contributions. Further, the inquiry into whether the assertion by a party of his or her legal rights would be unconscionable can encompass events that occurred after the property was initially acquired. Expenditure on repairs and renovations of the property by a person asserting a constructive trust in respect of the property, where the expenditure is accepted by the legal owner of the property in the knowledge that it would improve the home and add to its value, can be considered as a contribution in quantifying the first person's equitable interest under the constructive trust.[23]

90 Evidence of express statements or admissions of a common intention that a party was to have beneficial interest in a property will assist in establishing whether there was a joint relationship or endeavour creating a beneficial interest in the property in favour of a plaintiff.[24]

91 In accordance with the principles outlined above, the plaintiff bears the onus of demonstrating the alleged common intentions between himself, Samir and the defendant, upon which he claims he relied to his detriment.

Conversations said to give rise to the common intentions

92 Although the plaintiff agreed with the defendant's evidence that she had nothing to do with the family's financial affairs, he gave evidence that the defendant was present at each of the conversations in which the relevant common intentions were said to be formed. He said that she agreed or, on certain occasions, did not express disagreement, with what was said during those conversations. The defendant denied that she was present at the conversations, or that she was aware of any agreement between the plaintiff and Samir as to the beneficial ownership of the relevant properties.

93 In order to establish a common intention between the parties, the plaintiff must prove the spoken words with a degree of precision sufficient to enable a court to be reasonably satisfied that the allegation is made out.[25] The plaintiff's evidence of the conversations said to establish the relevant common intentions in this case was vague and unspecific. On several occasions he was evasive and failed to answer questions put to him. The evidence that he did give as to what was said in the relevant conversations was general in nature, such that there was an agreement that everything would be 'fifty-fifty'.

94 Although there were some inconsistencies in the defendant's evidence, particularly regarding the plaintiff's relationship and working arrangements with Samir, her evidence was ultimately consistent with her not being involved in the family's financial affairs, including any arrangements that may have been made between Samir and the plaintiff. Minor inconsistencies may also be attributable to the effluxion of time and the fact that the defendant speaks little English and thus gave her evidence through an interpreter. On balance, the defendant was a witness of truth and it is accepted that she was not an active participant in any conversations establishing an agreement concerning the beneficial ownership of any of the properties.

95 The plaintiff submitted that the relevant common intentions could be inferred from the conduct of the parties, particularly his own contributions to the properties. However, the plaintiff was unable to adequately prove that he made contributions to the properties capable of evidencing the alleged common intentions, or that those contributions were referrable to any common intention between himself and the defendant.

96 As stated, there was a conspicuous dearth of documentary evidence supporting the plaintiff's oral evidence of his contributions to the properties. Even if it were to be accepted that the payments set out in the transactions table were made, the Court is not satisfied that these payments were made pursuant to a common intention to which the defendant was a party.

97 Similarly, the plaintiff pointed to cash withdrawals from his personal accounts said to be referrable to payments to Samir, to Samir's loan accounts and to other contributions such as the alleged renovations and repairs to the properties. However, the plaintiff has been unable to provide any documentary evidence supporting his assertion that these withdrawals were so applied. It is also notable that, despite evidence that he paid the deposit towards the Aratula Street property in cash directly to the vendor, the plaintiff did not call the vendor to give evidence on this point.

98 Further, the plaintiff failed to provide records evidencing his contributions to the alleged renovations to the Endeavour Hills, Hampton Park and Stud Road properties. Although it may be the case that the plaintiff assisted Samir by organising tradespeople for the renovations to the Aratula Street property, the plaintiff has not shown that he made financial contributions to any such works nor that any non-financial contributions were referable to a common intention as to the beneficial ownership of the property. The plaintiff gave evidence that the Aratula Street property was acquired to make the defendant 'happy' and allow her to be closer to her ailing mother. He stated, 'we had an agreement altogether that we purchase a property to please her'. Furthermore, the renovations were said to have been undertaken to make the property more suitable for the defendant 'to live comfortably and happily'. In such circumstances the evidence was not consistent with the plaintiff's alleged contributions being referable to a common intention as to the beneficial ownership of the property.

99 The plaintiff has also failed to point to any proven conduct of Samir and the defendant that would support the alleged common intentions. For example, the transfer of the Endeavour Hills property to Samir solely, the caveat lodged on the property in the defendant's name, and the transfer of the title to the Hampton Park property from Samir to the defendant are not consistent with the common intentions alleged.

100 The plaintiff's oral evidence of alleged contributions to the properties is not sufficient to demonstrate that the alleged common intentions should be inferred from the conduct of the parties.

Conclusion on common intention constructive trust

101 The plaintiff has not established the existence of an actual or inferred common intention of the parties as to their beneficial interest in any of the relevant properties. Accordingly, the plaintiff's claims based upon the existence of a common intention constructive trust are dismissed.

102 The plaintiff's joint endeavour constructive trust claim encounters the same evidentiary difficulties as his common intention constructive trust claim.

103 The evidence does not support the conclusion that there was any common intention between the plaintiff, Samir and the defendant which would assist the plaintiff to establish a joint relationship or endeavour creating a beneficial interest in the property in his favour.

104 Furthermore, as observed above, the plaintiff has not established that he made the alleged contributions to the properties. Even if the alleged contributions to the properties were made by him, the plaintiff has not shown that they were referable to a joint endeavour involving the defendant. It is accepted that Samir took care of the family's financial affairs and the defendant was reliant on Samir to provide for her. It was not the plaintiff's case in this proceeding that a constructive trust should be imposed upon the basis of a joint endeavour between himself and Samir to which the defendant was not a party.

105 In any event, the plaintiff has failed to show that the defendant was in any way involved in or aware of any alleged joint venture between himself and Samir such that it would be unconscionable for her to assert her legal ownership of the Hampton Park and Roxburgh Park properties. The Court will not impose a constructive trust on the basis of 'fairness' and, as the defendant submitted, on the evidence before the Court, the highest the plaintiff's claim could be put is that there may potentially be a loan owing to him from Samir's estate. However, on the evidence before the Court, such a claim would be difficult to establish and, in any event, no such claim is made against the defendant in this proceeding.

106 Accordingly, the plaintiff's joint endeavour constructive trust claim is dismissed.

The plaintiff's caveat on the Hampton Park property

107 The defendant submitted that the plaintiff has failed to prove that the financial contributions he allegedly made in respect of the Roxburgh Park property give rise to a caveatable interest, consistent with the principles enunciated by Warren CJ in Piroshenko v Grojsman,[26] and, accordingly, the plaintiff's caveat must be removed.

108 The defendant noted that the interest claimed in the caveat lodged by the plaintiff on the Hampton Park property is over the freehold estate absolutely and the grounds of claim are noted to be 'partly performed oral agreement'. However, in this proceeding the plaintiff relies on equitable causes of action.

109 In any event, the plaintiff has failed to establish any interest in the Hampton Park property that would justify his caveat remaining on the title of the property.

110 The Court orders that the plaintiff's proceeding be dismissed and that steps be taken to ensure that the plaintiff's caveat lodged on the title to the Hampton Park property be removed forthwith.

111 In default of agreement on the costs of the proceeding, the parties are to file and serve short written submissions by 15 May 2020.

[1] The plaintiff's second further amended statement of claim asserted that he made monthly payments of $1,650 towards the consolidated loan. In oral evidence, the plaintiff said the statement of claim was incorrect.

[2] Giumelli v Giumelli (1999) 196 CLR 101, 112 [4] (Gleeson CJ, McHugh, Gummow and Callinan JJ).

[3] Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269, 290 [47] (Gummow, Hayne, Heydon, Kiefel and Bell JJ).

[4] Beatty v Guggenheim Exploration Co, 225 NY 380, 386 (Cardozo J) (1919).

[5] Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566, 585 [42] (Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Giumelli v Giumelli (n 2) 113 [10] (Gleeson CJ, McHugh, Gummow and Callinan JJ).

[6] The role of the Court in declaring the existence of a constructive trust is to construe the circumstances giving rise to a constructive trust; the Court does not construct a constructive trust: Giumelli v Giumelli (n 2), 111 [3] (Gleeson CJ, McHugh, Gummow and Callinan JJ).

[7] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 608 (Brennan J), 612 (Deane J).

[9] See generally JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (LexisNexis, 8th ed, 2016) ch 13. See also Carter v Brine [2015] SASC 204 [308]-[314] (Blue J).

[10] [2018] VSC 413, [396]-[398] (McMillan J).

[11] Ibid [402] (McMillan J). See also Sobey v Sobey [2014] VSC 373, [44] (Almond J); Hohol v Hohol [1981] VicRp 24; (1981) VR 221, 225 (O'Bryan J).

[13] [2018] VSC 283, [183] (McMillan J).

[14] See, eg, Clementi v Rossi [2019] VSC 725, [290] (McMillan J); Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc (n 10), [406] (McMillan J).

[15] [1985] HCA 78; (1985) 160 CLR 583.

[18] [1987] HCA 59; (1987) 164 CLR 137.

[20] Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc (n 10) [401] (McMillan J).

[21] [2009] NSWSC 460, [51]-[53] (Ward J).

[22] Clementi v Rossi (n 14), [278] (McMillan J).

[23] [2008] VSC 374, [132].

[24] See McDonald v Dunscombe (n 13), [183] (McMillan J).

[25] See Watson v Foxman (1995) 49 NSWLR 315, 318-19 (McLelland CJ), referring to a claim under the Trade Practices Act 1974 (Cth).

[26] [2010] VSC 240; (2010) 27 VR 489.