Plaintiff v Defendant

1 Ann Hill and Colin Hill commenced a domestic relationship in about 1972. They both worked in the taxi industry and, from 1972 until about 2006, they jointly held and dealt with numerous assets, including real estate and taxi licences.

2 Ann died on 1 November 2017 at the age of 78 years. Colin is 92 years of age. One of the controversies in this proceeding is whether their domestic relationship continued until Ann passed away, as contended by Colin, or whether it ended at an earlier time as contended by Robert Cronin, the executor of Ann's estate and the defendant in this proceeding.

3 The issue for determination in this proceeding is identifying the holder of the equitable interest in a property at 34 Treetop Terrace, Plenty (Treetop) which Ann purchased in April 2004. Mr Cronin asserts that Ann was the sole proprietor of Treetop. Colin contends that, in adopting that position, Mr Cronin has engaged in unconscionable conduct because he has refused to recognise his equitable interest in the property.

4 Colin's primary submission was that, although Treetop was registered solely in Ann's name, he jointly contributed to its acquisition and it should have been registered with he and Ann recorded as joint tenants. He contended that all of the couple's assets, with limited exceptions, were held as joint tenants and it was his evidence that Ann maintained significant control over their joint finances. He seeks a declaration that Treetop was held by him and Ann as joint tenants. Alternatively, he seeks a declaration that he holds an equitable interest in Treetop to the extent of his contribution towards it, which was submitted to be equal to 48% of the property's total value. [1] He contended that, given these contributions, it is unconscionable for Mr Cronin to now assert that Ann held the property as a sole proprietor.

5 Colin's case was based in part upon the history of significant property investment undertaken by he and Ann, which history was largely uncontroversial. It was also based on his evidence in relation to the nature of his relationship with Ann, as well as expert evidence concerning the source of funds used for the acquisition of Treetop.

6 The relevant history of Colin and Ann's relationship before the purchase of Treetop in 2004 was uncontroversial.

7 Colin drove taxis from 1951 until 1999 when he retired at 70 years of age. He was granted his first taxi licence in 1956 which he sold in July 1999 for $302,500.[2]

8 Colin married his first wife in 1953 and remarried about 10 years later. He had four children with his second wife.

9 In 1958, Colin purchased land in Altona on which he and his second wife built their home.

10 In 1969, Colin bought a 320 acre bush block at Wye River for $4,400 from which he sold timber to a mill in Colac.

11 In 1971, Colin and his second wife purchased a working dairy farm located in Gellibrand for $7,500.

12 Colin separated from his second wife in 1972 and began living with Ann and her daughter, Kim Hutchinson, who was then about 10 years old. Ann had been married, but had been divorced from her husband for about three or four years.

13 In 1973, Colin and his second wife sold the dairy farm in Gellibrand for about $15,000.

14 In May 1974, Ann and Colin purchased a block of land in Lower Plenty on which they built a house which became their primary residence. By 1978, after the death of Colin's second wife, Ann and Colin were residing at the Lower Plenty property with all of their children.

15 Although Ann and Colin did not marry, by 1979 Ann had assumed the surname 'Hill' and often referred to Colin as her husband.

16 In 1979, Ann and Colin purchased a liquor licence and stock for $250,000 and operated a licensed supermarket in East Doncaster. They sold it for about the same price in the early 1980s.

17 In 1980, Colin sold the property in Wye River for $55,000.

18 In 1981, Colin purchased another taxi licence for $23,000, using money provided by his mother after the death of his father,

19 In 1983, Colin sold the property in Altona for $56,000.

20 In 1984, Ann and Colin purchased a taxi licence for $52,000. It was uncontentious that the taxi licences bought and sold by Colin and Ann jointly were held by them in a partnership (the taxi licence partnership).

21 In January 1989, Ann and Colin purchased a property in Alexandra Street Greensborough for $133,000, subject to a mortgage (the Alexandra Street property). The Alexandra Street property was registered in Ann's name only, but the mortgage was in both her and Colin's names and the rental income from the property was declared in both their tax returns. Ann's mother lived in the Alexandra Street property for a period.

22 Between about 1990 and 1992, Ann stopped working because of serious mental health issues. Colin cared for her in the Lower Plenty property and drove taxis at night. They were also supported by the income from the taxi licences which they owned and which had been leased out.

23 In 1992, Colin sold a taxi licence for $145,000.

24 In 1993, Ann and Colin purchased an investment property in Montmorency. The property was registered in both their names. Ann's daughter Kim and Kim's daughter, Kate, rented the property for a low rental.

25 Colin and Ann rented out the Alexandra Street property in 1993 and 1994, before selling it in December 1994.

26 In 1994, the Montmorency property was subdivided into two units. Colin and Ann sold one in October 1994 for $110,000.

27 In 1994, Ann and Colin purchased another taxi licence for $140,000. The licence was leased out and then sold in August 2007 for $480,000.

28 In 1995, Ann and Colin sold the taxi licence they purchased in 1984 for $200,000.

29 In April 1996, Ann and Colin purchased a property in Balwyn for $437,000 (the Balwyn property) which was registered in both their names and was their primary residence until they sold it in 2002. The property was purchased subject to a mortgage in both of their names. At about the same time, they sold their previous home at Lower Plenty for $345,000.

30 In May 1997, Colin and Ann purchased another investment property in Balwyn which they later sold in May 1999.

31 As I have noted, Colin retired from driving taxis in 1999. However, Colin and Ann retained two taxi licences which they leased out and from which they earned about $1,300 per month.

32 In July 1999, Colin sold the taxi licence which had been granted to him in 1956 for $302,500. The large majority of those funds, $287,500, was deposited into a joint account held by Colin and Ann with Australian Guarantee Corporation Limited. On 8 September 1999, the balance in that account of $288,288.10 was transferred into Ann's superannuation account.

33 Between 2000 and 2003, Colin was admitted into hospital on about five occasions with cardiomyopathy. He suffered a heart attack in 2003.

34 In August 2000, Ann and Colin purchased an investment property in Heathcote for $131,000. The deposit for the purchase was paid by drawing on the mortgage for the Balwyn property, with the balance paid out of a joint term deposit.

35 In 2001, Colin received $84,554.32 from a deceased estate of which he was a beneficiary. Those funds were paid into two bank accounts, both held in joint names with Ann.

36 In September 2001, an investment property in Yaralla Crescent, Greensborough (Yaralla Crescent) was purchased for $282,500. The property was registered in Ann's name only. Ann's daughter Kim and granddaughter Kate lived at the property for a small rental. The deposit for the purchase was paid from a mortgage account held jointly in Colin and Ann's names. The majority of the funds used to purchase Yaralla Crescent were borrowed from a mortgage account with a bank which was in Ann's name only. In April 2002, $45,000.00 was deposited into that account from a joint cheque account in Colin and Ann's names.

37 In June 2002, Ann and Colin sold the remaining unit which had been developed at the Montmorency property for $225,000. Ann's daughter Kim and granddaughter Kate had lived in this unit. Kim and Kate then moved into Yaralla Crescent.

38 In August 2002, Ann and Colin each prepared largely mirror wills.

(a) Ann's 2002 will, her penultimate will, gave the entirety of her estate to Colin. If she were to survive him, she devised Yaralla Crescent to Kim and Kate in equal shares as tenants in common, made a bequest to her sister and the residue was to be divided 50% to Colin's children and 50% to Kim and Kate.

(b) Colin's 2002 will gave the entirety of his estate to Ann. If he were to survive her, he divided the residue as to 50% to his children and the other 50% to Kim and Kate in equal shares.

39 In April 2003, Ann and Colin sold the Balwyn property, which had been their primary residence, for $822,500. A month later they purchased a new home in Yarrambat for $685,000 (the Yarrambat property). The deposit was paid from a joint bank account, with the remainder of the purchase price funded from the net proceeds of sale from the Balwyn property. The Yarrambat property was held jointly by Colin and Ann and became their primary residence after the sale of the Balwyn property.

40 In July 2003, Ann and Colin sold the Heathcote investment property for $190,000.

41 Ann signed a contract to purchase Treetop on 19 April 2004 for $620,000. The contract settled on 6 July 2004. Treetop was registered in Ann's name only. Colin gave evidence that the fact that Ann was the only person registered on the title to the property occurred without his knowledge. He believed that Treetop would be registered in both their names.

42 The purchase of Treetop was in part funded by a loan by Ann from a bank secured by a mortgage in Ann's sole name over the property (the Treetop mortgage account). My findings about the source of funds used to purchase Treetop are detailed later in these reasons.

43 Treetop was initially rented out as an investment property until Colin and Ann moved into it on about 29 December 2004. Ann lived there until her hospitalisation shortly before she passed away in 2017. The period over which it was Colin's primary residence is controversial. Colin's evidence was that he thought that he owned the property with Ann.

44 At about the same time in late 2004 or early 2005, Colin and Ann sold the Yarrambat property, which had been their primary residence, for $885,000. Of this amount, $64,128.78, being the remainder of the deposit paid by the purchaser after deducting sale expenses, was paid into an account in Colin's sole name. The remainder, $769,200.81, was paid upon settlement on 21 January 2005 into a joint account in Colin and Ann's names (the 'Yarrambat funds account').[3] The following amounts were then transferred out of the Yarrambat funds account:

(a) On 25 January 2005, $460,000 was transferred to the Treetop mortgage account.

(b) Between 28 January 2005 and 7 February 2005, a total of $160,000 was transferred to a line of credit account in Colin and Ann's joint names.

(c) On 14 February 2005, $50,000 was transferred to a term deposit account in Ann's sole name.[4]

(d) On 14 February 2005, $88,000 was transferred to another account in Ann's sole name.

45 In January 2005, Ann and Colin purchased an investment property at St Andrews for $390,000.

46 On 10 October 2005, Ann and Colin purchased an investment property at Tamboon Drive, St Helena (Tamboon) for $515,000. The property was registered in the name of Colin and Ann as joint tenants. Kim and Kate lived at Tamboon for modest rent until Ann's death. The accounts for utility services provided at Tamboon were in Colin's name. Upon Ann's death, Colin became the sole owner of Tamboon.

47 Yaralla Crescent, which was registered solely in Ann's name, was sold in November 2005. The proceeds of sale were paid into an account in Ann's sole name. The proceeds of that account were in turn transferred to a line of credit account in Colin and Ann's joint names.

48 In February 2006, the St Andrews property was transferred from both Colin and Ann's names to Ann's sole name for consideration of $200,000. Colin's evidence was that, although he recognised his signature on the transfer of land, he could not recall signing it or being aware that the property was being transferred to Ann. The St Andrews property was sold in September 2007 for $358,000.

49 On 26 March 2007, $90,306 was transferred from a joint account in the names of Colin and Ann to the Treetop mortgage account.

50 In 2007, Ann and Colin sold a taxi licence for $480,000. Of that amount, $125,000 was paid into a line of credit in Colin and Ann's joint names, $135,000 was paid to Ann and $200,000 was paid into the Treetop mortgage account on 30 July 2007.[5]

51 The taxi licence partnership between Ann and Colin ended in about 2008.

52 Colin started receiving a full pension from about 2009.

53 In 2013, Colin purchased a caravan for $45,000 which he stored at Tamboon.[6]

54 Ann retired in 2014 at the age of 70. She had been working part-time for a year or two before her retirement.

55 Ann executed her final will on 30 June 2016 (Ann's will). Throughout it, Colin is referred to as her 'former partner'. Ann's will makes the following dispositions: that Treetop and its contents be devised to Kim and Kate in equal shares; a gift of $125,000 to Colin; a gift of $75,000 to Lisa; and that 50% of the residue of the estate be gifted to Kim and 50% to Kate.

56 Clause 4 of Ann's will directs as follows in relation to Tamboon:

In the event that I have become the sole registered proprietor by survivorship of the property at 60 Tamboon Drive, St Helena, then I GIVE all my right title and interest in this property to the children of my former partner COLIN WOODROFFE HILL, namely, TRICIA HILL, JENNIFER HILL, ELIZABETH ROGASH and COLIN ANTHONY HILL, as tenants-in-common in equal shares.

57 In September 2016, Ann purchased three niches in a crematorium wall: one for herself, one for Colin and one for Colin's mother.

58 Colin contended that it is unconscionable for Mr Cronin to assert that Treetop is beneficially held by Ann's estate without recognising first that it should have been held by he and Ann as joint tenants or, alternatively, on a constructive trust based on the contributions he is said to have made to its purchase. Colin's claim of unconscionable conduct was advanced on two bases which I consider separately below:

(a) First, that he made assumptions based upon certain conduct by Ann. Colin contended that the nature of his relationship with Ann and their shared history was such that Treetop should have been held by them as a joint tenancy; it would be unconscionable for Ann's estate to maintain that Treetop was not held by them as joint tenants (the Course of Conduct claim).

(b) Secondly, that he made assumptions based on his claimed financial contributions to the purchase price of the property. Colin contended that he contributed 48% of the purchase price of Treetop and that it would be unconscionable for Ann's estate to deny that this contribution should be accounted to him (the Contributions claim).

59 Counsel for Colin submitted that this case was a 'classic' Baumgartner v Baumgartner constructive trust. [7] It was submitted that, where the purchase price of a property is advanced by two or more persons in unequal shares, it is presumed that the person to whom the legal title is transferred holds the property on trust for the persons who provided the purchase price in proportion of the shares they provided. A constructive trust enforces the reasonable expectation of a plaintiff acquiring the interest in the property consistent with the contribution he made. Put another way, it would be unconscionable for the party who ends up, at the end of a relationship, with a disproportionate share of the assets which were built upon during the relationship, to keep those assets when he or she knew that this was the basis on which the assets were being built up.

60 Colin submitted that the Court should impose a joint endeavour constructive trust. It was submitted that Colin and Ann had a joint relationship for a common benefit which came to an end prematurely upon Ann's death or, alternatively, upon their separation (if found by the Court, contrary to Colin's case). In those circumstances, it would be unconscionable for Ann's estate to retain the benefit of the property, either wholly or in respect to the contributions made by Colin.

61 Although not adverted to in opening, passing reference was made in Colin's closing submissions to a common intention constructive trust. It was submitted that his relationship with Ann was 'of a common intention and thus the common intention ... was to hold the properties as joint tenants as all the other properties had been held'.

62 A claim for a resulting trust was not pressed by Colin at trial.

63 In Zekry v Zekry, the Court of Appeal recently revisited some of the principles relevant to the imposition of a constructive trust.[8] The Court observed that:[9]

Although the title held by a registered proprietor is indefeasible, it is also well established that a person holding an equitable interest in land may, in certain circumstances, enforce that equity against the registered proprietor. The indefeasibility conferred on a registered proprietor 'in no way denies the right of a plaintiff to bring ... a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant.' However, that can only occur where the party seeking the benefit of the interest can bring the claim within certain established equitable or legal principles. Two clear examples are a constructive trust of the kind considered by the High Court in Baumgartner and a resulting trust.

As the basis for relief is an equity owed by the registered proprietor to the party claiming a beneficial interest in land, the critical focus must be on the knowledge and conduct of the registered proprietor. ... The context in which the person became the registered proprietor, including whether he or she did so as a volunteer, will also be relevant to any assessment of whether a subsequent denial of a beneficial interest would be unconscionable.

65 At first instance in Zekry v Zekry, McMillan J endorsed the following statement by Ward J in Australian Building & Technical Solutions Pty Ltd v Boumelhem in relation to the requirements for the imposition of a joint endeavour constructive trust_:_[11]

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.[12]

66 Although the appeal from McMillan J's judgment succeeded, it did so on the basis of a reassessment of the evidence at trial, not because of any error of principle, including in respect of her Honour's endorsement of the above requirements for the imposition of a joint endeavour constructive trust.[13]

67 The Court of Appeal in Zekry v Zekry considered in some detail the judgment of the High Court in Muschinski v Dodds[14] and referred to the following statement by Deane J in relation to the principle which prevents a person from asserting or exercising a legal right in circumstances where to do so would constitute unconscionable conduct:[15]

[T]he principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.[16]

68 In referring to the circumstances in Muschinski, the Court of Appeal continued:[17]

The unconscionable conduct arose because the purpose of the joint endeavour failed without fault and it was unconscionable to refuse to recognise the existence of the equitable interest. A refusal to recognise the unequal contributions at the time the joint endeavour failed would mean that one party would be left as half-owner, having made only a derisory contribution and on a basis that had never been contemplated.

The approach taken by Deane J was endorsed by Mason CJ, Wilson and Deane JJ in Baumgartner.[18] In doing so, their Honours emphasised two points. First, the trust is imposed regardless of actual or presumed agreement or intention.[19] Second, the requirement that the assertion of interest be unconscionable does not import idiosyncratic notions of what is just or fair but must be informed by equitable principle.[20]

The pooling of resources in pursuit of a common endeavour, which comes to an end at a point where contributions do not reflect the legal title, provides a context in which equity may intervene. Unlike a resulting trust, the issue does not turn on intention and does not always admit of mathematical precision. For example, in Muschinski,[21] the constructive trust took into account the proportion of contributions to the purchase price, but the parties joined in the increase in the value of the property in equal shares.

69 As the Court of Appeal noted, the approach of Deane J in Muschinski was endorsed by Mason CJ, Wilson and Deane JJ in Baumgartner. In that case, the parties to a de facto relationship at first lived in a unit owned by the man, which was then sold when they acquired a house in his name. The house was purchased with a mortgage in the name of the man, who also contributed the net proceeds of the sale of the unit. The parties pooled their incomes for living expenses and fixed commitments in proportions of 55% by the man and 45% by the woman. These pooled monies contributed to all expenses and outgoings arising from living together, such as the purchase price of the property, the cost of building the home there, mortgage instalments and other living expenses. As the majority of the High Court stated:

The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship.[22]

70 The High Court found that the man held the house on trust for the parties in the proportions in which they had contributed their earnings to its acquisition, subject to a charge in the man's favour to the proceeds from the unit's sale. A constructive trust was imposed because:

In this situation the appellant's assertion, after the relationship had failed, that the ... property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.[23]

71 Colin was the principal witness in his case. The only other witness called by Colin was Gary Fettes, an accountant, who gave expert evidence regarding the source of the funds used to purchase Treetop.

72 Mr Cronin gave evidence and also led evidence from Carolyn Scott[24] (Ann's half-sister); Kim Hutchison (Ann's daughter); Kate Hutchison (Ann's granddaughter); and Noel McNicol Smith, Ann's solicitor who prepared her last will. They each impressed me as honest witnesses who did their best to provide an accurate account of relevant events.

73 Having carefully considered the evidence Colin gave to the Court, I have serious reservations about its reliability in respect of important and contentious matters. There are two fundamental problems.

74 First, Colin candidly acknowledged that he has memory problems and that sometimes he could remember things, and sometimes he could not - whether from many years ago, or from more recent times. This accords with my general observations about Colin's recollection of events which, at times, was inconsistent and vague. Despite frequent breaks in the course of giving evidence, several times his evidence was confused and contradictory. This is perhaps unsurprising given his advanced years and various health problems.

75 Secondly, however, I accept the submission advanced on behalf of Mr Cronin that significant aspects of Colin's evidence were self-serving and fashioned to further his perceived interests in this proceeding, rather than being a true account of events. This was demonstrated in a number of aspects of Colin's evidence including those referred to below.

(a) Colin applied for a pension in 2005. In cross-examination, he was asked why he had left a section on the application form, titled 'your partner', blank, and why he had failed to declare all of his proprietary interests. After initially saying that Ann filled out the application, he went on to say that Ann altered the form without his knowledge. He then admitted that he could not remember the form at all.[25]

(b) In one of his affidavits, Colin stated that all of the properties he and Ann owned were purchased using joint funds. However, in cross-examination, Colin initially asserted that he had contributed 'the lot' to the purchase of Tamboon. When pressed, he then said that he could not remember whether it was purchased with joint funds, before then agreeing that it had in fact been purchased with funds from a joint account to which both he and Ann had contributed. He then retreated to not remembering, before saying that it was possible that it had been purchased with funds from joint accounts to which they had both contributed.

(c) In cross-examination, Colin stated that he never knew that Yaralla Crescent was held in Ann's name alone. He was taken to Ann's 2002 will, which he agreed had been drafted at the same time as his 2002 will and after consultation between he and Ann. Ann's 2002 will gifted Yaralla Crescent to her daughter and granddaughter. Asked again whether Ann's 2002 will had been drafted in consultation with him, Colin then said that he could not recall. Colin asked for a break from giving evidence. When he resumed giving evidence, he said that he could not recall whether Yaralla Crescent was held solely by Ann.

(d) Colin gave evidence that Treetop was his primary residence since early 2005. In October 2005, Colin and Ann bought Tamboon. In cross-examination, it was put to him that, from at least 2012, Colin had lived at Tamboon and only visited at Treetop. He denied this, saying that he stayed at Tamboon only occasionally. After being taken to a number of documents recording his address as being at Tamboon, including his electoral records, Colin said that he used the property as a post box because he started off living there. When it was pointed out to him that he had purchased Treetop before Tamboon, Colin said that he did not remember.

(e) In cross-examination, Colin was taken to his and Ann's tax returns for 2006. Neither return recorded a partner. Colin's explanation for this was that his accountant could have altered his tax return against his instructions. This was the first time that this allegation had been made. It did not appear in either of Colin's affidavits, which he adopted as his evidence in chief.

76 In light of the above matters, I do not regard Colin as being a reliable witness. I am generally unwilling to accept his evidence in relation to contentious matters where it is not supported by documentary evidence or corroborated by other witnesses.

77 The Course of Conduct claim can be examined by reference to five topics, each of which are separately considered below:

(a) the identification of Colin's primary residence;

(b) were Colin and Ann in a domestic relationship when Ann died?

(c) Colin's knowledge and control of his finances;

(d) the history of Colin and Ann's property purchases; and

(e) whether Treetop was generally recognised as 'Ann's house'?

78 Colin maintained in his evidence that at all relevant times he lived at Treetop and that it was his primary residence until after Ann's death. His evidence was that he only stayed occasionally at Tamboon in the caravan when having some respite from caring for Ann.

79 Mr Cronin's case was that, although it was accepted that Colin spent time between Treetop and Tamboon until about 2012, since that time he lived at Tamboon and only visited Ann at Treetop.

80 As was submitted on behalf of Mr Cronin, if Treetop was Colin's primary residence when Ann died and in the period which preceded her passing, this would add credence to Colin's claim that he believed that Treetop was jointly owned. If, however, Colin in fact resided at Tamboon, that would be a factor which supports a finding that it was not reasonable for Colin to have assumed that he had joint ownership over Treetop.

81 Other than his own evidence, there is very little evidence to support Colin's claim that he lived at Treetop after 2012. Colin exhibited to his affidavit, which was received into evidence, two statutory declarations from persons said to be neighbours at Treetop. Although not the subject of any objection to their receipt into evidence, these declarations are of limited weight because of the inherently vague nature of the opinions they contain in circumstances where neither maker was called to give evidence. The various quotations for gardening and cleaning services also relied upon by Colin are, upon examination, ambiguous as to what might be inferred from them as to the location of his primary residence.

82 Serious doubt is also cast over Colin's evidence about where he lived given aspects of his evidence in cross-examination. In his evidence-in-chief, Colin specifically denied living at the properties in Heathcote and St Andrews, describing them as weekenders or rental properties. However, in cross-examination, he accepted that he 'probably' lived at St Andrews 'for a little while'. This is consistent with the content of some of the bank statements which were in evidence.

83 There is, however, a body of reliable evidence consistent with Mr Cronin's case that Colin lived at Tamboon.

84 Kate and Kim gave evidence that, although Colin was a frequent visitor to Treetop, he lived with them at Tamboon from 2012. Kate and Kim gave evidence that Colin had a room at Tamboon that he stayed in and he otherwise stayed in the caravan which was at the property. Kate also gave evidence that, consistent with documentary evidence, Colin had allied health and medical appointments at Tamboon.

85 Lisa gave evidence that, from mid-January 2017, Colin lived in the caravan at Tamboon and visited Treetop occasionally, and usually on Thursdays. She also gave evidence that, when she first met Ann, she stayed a night with Kim and Kate at Tamboon and observed that Colin's belongings were in one of the bedrooms at the rear of the house.

86 In addition to this witness evidence, various utility bills and related correspondence were in evidence which were addressed to Colin at the Tamboon Drive address. Although there were some limited correspondence and bills addressed to Colin and/or Ann at Treetop, nearly all of those documents which were in evidence were addressed to Colin at the Tamboon Drive address. Colin was also registered to vote at the Tamboon Drive address.

87 This documentary evidence and the evidence given by Kate, Kim and Lisa which I accept is to be preferred to the unreliable evidence advanced in support of Colin's case as to where he resided. The evidence establishes that, although Colin was a regular visitor to Ann at Treetop until her death, he lived at Tamboon from about 2012.

Were Colin and Ann in a domestic relationship when Ann died?

88 Colin's evidence was that he and Ann remained in a domestic relationship until her death in 2017. Mr Cronin's case was that Colin and Ann's domestic relationship ended, at the latest, in about 2008.

89 The submissions advanced on behalf of Colin on this issue were contradictory and unclear. It was submitted that the fact and nature of Colin and Ann's domestic relationship was a 'red herring'; it was 'not relevant'. Despite this, I was taken to provisions of the Relationships Act 2008 and authorities dealing with it in the context of proceedings brought under Part IV of the Administration and Probate Act 1958 and invited to find that Colin and Ann were in a de facto relationship at the time of Ann's death.

90 It is uncontroversial that Colin and Ann were in a domestic relationship for many years. The issue is whether that relationship subsisted at the time of Ann's death, or whether it had ceased about a decade or more earlier. As counsel for Mr Cronin properly acknowledged, if Colin and Ann's domestic relationship continued until Ann's death, that would be a factor which would add credence to the reasonableness of Colin's belief that Treetop continued to be held jointly with Ann, given that it may reasonably be expected that a property in which a couple lived would be jointly held. Likewise, however, if the domestic relationship in fact ended well before Ann's death, this may make doubtful the reasonableness of Colin's belief that he expected that Treetop was held jointly, given that he would then be taken to have been aware that the relationship had ended some time prior to Ann's death. In that scenario, there would be little reason to expect that finances and assets would remain intertwined.

91 In addition to his own evidence that the relationship continued until Ann's death, Colin principally relied on the following matters:

(a) that he was referred to as Ann's 'life partner' in the eulogy delivered at her funeral;

(b) his evidence that he was recorded in Ann's death certificate as being in a domestic relationship with her;[26]

(c) his evidence that Ann made claims on his health insurance and he continued to care for her at Treetop during her illness late in her life;

(d) the absence of any evidence that he and Ann ever entered into a property settlement;

(e) the absence of any evidence that he was ever told that his relationship with Ann had ended;

(f) the evidence given by Ann's sister, Lisa, that she generally referred to Colin as her brother-in-law; and

(g) the evidence given by Ann's granddaughter, Kate, that she referred to him as 'pop', that she lived with him and cared about him.

92 For Mr Cronin, it was submitted that the documentary evidence supports a conclusion that Colin and Ann separated sometime around 2005. Reliance was placed on three categories of documents.

93 First, Mr Cronin relied on Colin and Ann's tax returns which recorded that, until 2005, they were each identified as the other's spouse. They were not so identified in the returns lodged for subsequent years.[27]

94 The tax returns were completed by Mr Cronin as Colin and Ann's appointed tax agent. Mr Cronin's evidence was that the returns for both Ann and Colin were completed pursuant to instructions. Mr Cronin gave evidence, which I accept, that at some point (which he did not identify) Ann had told him that the relationship with Colin had ended.

95 Mr Cronin did not have any recollection of speaking to Colin about the change in his return after 2005 when it no longer recorded Ann as his spouse. Mr Cronin's lack of recollection of this specific matter was said to be unsurprising and spoke to the reliability of his evidence. I accept that submission. Mr Cronin rejected the proposition that the tax returns were completed without instructions from Colin. His evidence was that it was against his practice to have done so. In the absence of any other evidence suggesting that Mr Cronin would have done anything other than adopt his usual practice in the preparation and filing of tax returns, I accept his evidence in this regard.

96 Secondly, Mr Cronin also relied upon an application for a Commonwealth pension made by Colin in 2005 (the pension application). The application makes clear in various parts that an applicant is to include their partner's income and assets. Page two contains a section, 'Your Partner' and asks, 'Does your partner currently receive any income from work?', as well as seeking relevant information concerning the identity of the partner's employer. Mr Cronin fixed upon the fact that this section of the pension application was left blank.

97 Colin's evidence in relation to the completion of the pension application was problematic and unconvincing. He initially accepted that he completed the application. However, after it became apparent in the course of his evidence that the form did not record that he had a spouse, nor any interest in Treetop, he stated that Ann in fact completed the form. He then asserted that the pension application had been changed without his knowledge by Ann; he then further changed his evidence and asserted that he did not remember completing the pension application.

98 The third aspect of the documentary evidence relied upon by Mr Cronin is the description of Colin throughout Ann's will (made in 2016) as Ann's 'former partner'. Colin gave evidence that he was unaware that Ann had revised her will in 2016 and that he was surprised to be referred to in it as her 'former partner'.

99 In addition to the above documentary evidence, Mr Cronin also relied upon the evidence given by Kim, Kate and Lisa that they each believed that Ann and Colin had ended their domestic relationship well before Ann's passing. Colin submitted that I should disregard this evidence as none of these witnesses could give evidence about his understanding of his relationship with Ann; their view was only based on what Ann had told them.

100 In weighing the evidence relevant to determining when Colin and Ann's domestic relationship came to an end, for the reasons I have already explained, I am unwilling to accept Colin's evidence on that question unless it is supported by documentary evidence or corroborated by other witnesses. On this issue, the fact that Colin was recorded in Ann's death certificate as being in a domestic relationship with her is properly regarded as being independent evidence which is consistent with his evidence that their relationship continued until her passing. The fact that Colin was described as Ann's 'life partner' in the eulogy delivered at her funeral is also generally consistent with this, although it is also consistent with the existence of a 30-year domestic relationship which ended a decade or more earlier and which was followed by a close personal relationship or friendship until Ann's death. It may be noted that, until late in her life, Ann had also maintained a good friendship with her husband from whom she had divorced many years ago before commencing a relationship with Colin.

101 However, the other matters relied on by Colin referred to in [91] that are said to support a conclusion that his relationship with Ann continued until her death are, I consider, of limited weight. In circumstances where it is agreed that the taxi licence partnership ended in 2008, the absence of any evidence that Colin and Ann entered into a property settlement is, I consider, a neutral factor. The fact that two of Ann's relatives referred to Colin by familial names and may have had caring relations towards him is unsurprising given that, even on Mr Cronin's case, Colin and Ann shared a domestic relationship for some 30 years during which Ann adopted Colin's surname; it is of no assistance in determining when that relationship ended. Further, because Colin was not a reliable witness, I am unwilling to give any weight to the fact that there was no evidence that Colin was ever told that his relationship with Ann had ended; it is likely that only Colin could give such evidence based on what Ann might have said to him.

102 Colin's evidence that Ann made claims on his health insurance was at odds with Kate's unchallenged evidence that Ann had her own, 'top of the range' private health insurance. I also consider that Colin's evidence that he cared for Ann during her illness late in her life is overstated. While it is clear that he assisted in looking after Ann to some extent, I accept the evidence given by Kate and Kim that they and Lisa were principally responsible for caring for Ann. So much is unsurprising given Colin's advanced years and his own health problems.

103 In considering all of these matters, I prefer the objective facts which emerge from the documentary evidence over Colin's evidence, supported by the death certificate and the eulogy, that his relationship with Ann continued until her death. The documents establish that Colin and Ann recorded each other as their spouse until 2005, but not thereafter. That that representation reflected the true state of affairs is consistent with the contents of the pension application completed by Colin in 2005. It is also particularly significant that in 2016 Ann described Colin in her will as her 'former partner'. Finally, although not determinative, my finding that Colin and Ann were not in a domestic relationship when Ann died is also supported by the fact that, although Ann lived at Treetop until shortly before her death, Colin lived at Tamboon from about 2012.[28]

104 Although it is strictly unnecessary to do so in relation to the Course of Conduct claim, it is convenient to record my finding that Colin and Ann's domestic relationship ceased sometime in the period between 2006 and 2008. That finding is supported by the following matters: (a) Colin and Ann purchased two investment properties in January and then October 2005 (subsequent to the purchase of Treetop in April 2004);[29] (b) after 2005 Colin and Ann ceased to record each other as their spouse in their tax returns; and (c) Colin and Ann's taxi licence partnership ended in about 2008.

105 Colin gave evidence that, although he was the 'initiator and motivator' in acquiring property and taxi licences, Ann 'organised all our money and made all the financial decisions', such that he did not have any idea about his finances or the assets he held. He maintained they he was very reliant on Ann in relation to all financial matters, especially after he suffered a heart attack in 2003 and his health began to significantly deteriorate. He gave evidence that Ann received all of his pension and that he did not 'see any of it'.

106 As was submitted on behalf of Mr Cronin, a finding that Colin had no knowledge of his financial position and that Ann controlled all aspects of his finances would support a conclusion that there was a reasonable basis for Colin to assume that Treetop was held by he and Ann.

107 I consider that the picture of ignorance about his own financial affairs and the exercise of complete control over those affairs by Ann as portrayed by Colin in his evidence was substantially exaggerated and an instance of Colin's willingness to fashion his evidence to advance his case.

108 In cross-examination, Colin agreed that he was in fact financially savvy and someone who knew their financial position. This was consistent with Mr Cronin's evidence that, in his interactions with Colin as the latter's accountant over eight years, he found Colin to be a financially astute and possessed of financial acumen.

109 Contrary to his evidence-in-chief, in cross-examination Colin accepted that he knew what money he had in the bank. The documentary evidence shows that Colin maintained at least five bank accounts in his own name, including three term deposits. The bank statements also showed that his pension was deposited into one of these accounts. When pressed on why it was that he had said in his evidence-in-chief that he did not see any of his pension, Colin claimed that the relevant bank account could be accessed by Ann as well. I do not accept this evidence given the absence of documentary evidence to corroborate this claim, which evidence could readily have been adduced by Colin.

110 Although Colin stated that he knew what money he had in the bank, in cross-examination he baldly asserted that he did not know what houses he owned. For someone who was actively involved in the property market for much of his life and who regarded himself as the 'initiator and motivator' in buying and selling about a dozen properties, this evidence strains credulity.

111 In closing submissions, Colin's counsel submitted, without elaboration, that it was not to the point that Colin had no knowledge or control over his finances: 'Rather, he knew what his assets were but he was unaware of the fine detail of his finances as Ann ... controlled everything'. Although the evidence supports a finding that Ann was significantly more involved than Colin in administering their financial affairs, it does not support a finding that Ann exercised sole control over those affairs, the detail of which was not known at all to Colin.

The history of Colin and Ann's property purchases

112 It was submitted on behalf of Colin that 'the overwhelming evidence was that properties were jointly held' and it was therefore reasonable for him to assume that Treetop was also jointly held.

113 The difficulty with this submission is that, although most of the properties purchased by Colin and Ann were jointly held, a significant minority were not. In addition to Treetop, Alexandra Street and Yaralla Crescent were registered solely in Ann's name, with the former used by Ann's mother and the latter by Ann's daughter and granddaughter, Kim and Kate. In addition to these properties, the property at St Andrews was transferred to Ann in 2006.

114 Colin's evidence was that he has no memory of the purchase of the property at Alexandra Street. He also did not remember anything about the property at Yaralla Crescent being registered solely in Ann's name. Nor did he recall signing the transfer of land to effect the transfer of St Andrews to Ann which was in evidence. His evidence was that Ann handled all of their finances and from time to time would have him sign documents without explanation.

115 Whether through defective memory or otherwise, I do not accept that Colin had no awareness that some properties were held solely by Ann. It is very difficult to reconcile such complete ignorance with someone who considered themselves to be financially savvy and as knowing their financial position. It is also unlikely given that it appears that Ann's sole proprietorship of the two properties in Greensborough related to the fact that they were used as homes by her direct family members and were thus part of a broader set of family arrangements which Colin and Ann may be taken to have agreed over the course of their long relationship.

116 Furthermore, Colin's evidence that he does not remember anything about Yaralla Crescent being registered solely in Ann's name can only be viewed, adopting the most charitable view, as a manifestation of his defective memory. That property was referred to in Ann's 2002 will pursuant to which it was devised to Kim and Kate in equal shares as tenants in common. Colin's evidence was that Ann's 2002 will and his will signed on the same date, both of which were simple two page documents, were prepared together at their solicitor's office while both he and Ann were present. At that time they consulted with each other about the contents of their respective wills and discussed what was going to be done with each other's assets. Colin also agreed that Ann's 2002 will showed Ann's intention 'to always make sure there was something for Kim and Kate'.

117 For the above reasons, I am satisfied that, during his relationship with Ann, Colin was aware that some of the properties he and Ann purchased were registered solely in Ann's name. In those circumstances, it was not reasonable for him to assume that Treetop was jointly held simply because it was purchased by Ann. Colin was aware, at least to some extent, that he and Ann had purchased properties without the properties being jointly registered; he could not reasonably have assumed that this might not happen again.

Whether Treetop was recognised as Ann's house

118 Colin maintained that he did not know that Treetop was not jointly held with Ann, or that Ann claimed it as her house alone. His evidence was that there was never any indication to him that Ann solely held the property and that he did not know that the property was solely in her name until Ann's will was read.

119 Mr Cronin contended that it was well understood that Treetop was considered to be Ann's property. In support of that proposition, Mr Cronin relied on evidence given by Kim, Kate and Lisa that Treetop was always referred to as 'nanny's house', or variations thereof, and that Tamboon was referred to as 'Colin's house'. This evidence was contested by Colin who also rejected the proposition that there was ever any agreement between he and Ann that Treetop would belong to her and that Tamboon would belong to him. Mr Cronin also relied on the contents of the pension application signed by Colin which did not identify Treetop as an asset which he owned.

120 In considering the Course of Conduct claim, little assistance is gained from determining whether or not, within Colin and Ann's extended family, Treetop was referred to as 'Ann's house' or the like. Such language, if used, might simply reflect the fact that Ann lived at the property and does not necessarily connote anything about property rights. Moreover, the connection between the use of such language by family members and the nature and reasonableness of the assumptions made by Colin about the ownership of Treetop is, at best, tenuous.

121 The central proposition in the Course of Conduct claim is that, as a result of Ann's conduct, the nature of their relationship and their shared history, Colin assumed that he was a joint owner of Treetop with Ann. Upon examination however, Colin did not have any reasonable basis, anchored in Ann's actions, to make any such assumption. Although they remained involved in each other's lives until Ann's death, their domestic relationship had ended about a decade earlier and they had not lived in the same house for about five years. In their long and active history in the property market, ownership of real property as joint tenants had not been an essential and consistent feature. Having been actively involved in buying and selling real property and other investments for much of his life, Colin was commercially astute and experienced in the property market; he was aware that some properties he and Ann purchased were registered solely in Ann's name. Colin's claim that Treetop is held pursuant to a constructive trust as a consequence of Ann's conduct must accordingly fail.

122 The second basis upon which Colin submitted that it is unconscionable for Mr Cronin to assert that the beneficial interest in Treetop is held by Ann's estate is that the funds used to purchase the property came from the result of his and Ann's joint endeavours. Colin's case was that he contributed at least 48.09% of the purchase price of Treetop. The basis upon which he was said to have contributed in this specific proportion is the expert evidence given by Mr Fettes summarised below.

123 Ann signed a contract to purchase Treetop on 19 April 2004 for $620,000. The contract settled on 6 July 2004 and the property was registered in Ann's sole name on 8 July 2004. After taking into account fees and charges, the total amount paid to purchase it was $654,524.92. This was comprised of a deposit of $50,000 paid on 21 April 2004, $108,524.92 paid on or about 5 July 2004 and a bank loan of $496,000 secured by the Treetop mortgage.

124 Gary Fettes, an experienced accountant, gave expert evidence that Colin contributed 48.09% of the total purchase price of $654,524.92. The key elements of his analysis were as follows.

(a) The deposit of $50,000 was paid from a line of credit in Ann's sole name, secured by Yaralla Crescent which was registered solely in Ann's name (the Yaralla Crescent line of credit).[30] Mr Fettes' evidence establishes that, in the period before the deposit was paid, $75,000 from accounts held jointly by Colin and Ann was applied to reduce the Yaralla Crescent line of credit.[31] On that basis, and assuming Colin was entitled to 50% of any funds held jointly with Ann, Mr Fettes' evidence was that Colin contributed 50% of the deposit amount, being $25,000.

(b) The amount of $108,524.92 was paid from a bank account held in Ann's sole name.[32] That account had been opened on 1 July 2004, shortly before the purchase of Treetop, with a deposit of $206,209.90 from a term deposit account held jointly by Colin and Ann.[33] Assuming Colin was entitled to 50% of any funds held jointly with Ann, Mr Fettes opined that Colin contributed $54,262.46, being 50% of the payment of $108,524.92.

(c) The large majority of the Treetop mortgage, $460,000, was repaid on 25 January 2005 from funds from the sale of the Yarrambat property which had been jointly held by Colin and Ann. On 21 January 2005, most of the net proceeds of sale of the Yarrambat property were paid into the Yarrambat funds account, [34] being a joint account in Colin and Ann's names from which the payment of $460,000 was made. A further repayment of $11,000 of the Treetop mortgage was made on 7 February 2005 from the Yarrambat funds account. Assuming Colin was entitled to 50% of any funds held jointly with Ann, Mr Fettes opined that Colin's contribution to the reduction of the Treetop mortgage was 50% of the above repayments, being a total amount of $235,500.

(d) Mr Fettes' unchallenged evidence was that the Treetop mortgage was effectively repaid, including interest, by 15 September 2005.

(e) Colin's contribution of 48.09% towards Treetop is the sum of the contributions referred to in subparagraphs (a)-(c) above, divided by the total purchase price of $654,524.92. The relatively greater contribution made by Ann reflects the fact that, from August 2004 until September 2005, monthly payments of principal and interest of the Treetop mortgage were made from an account held solely in Ann's name.[35] Those payments were of a total amount of approximately $20,000.

125 Mr Fettes was explicit in his evidence-in-chief that his analysis was predicated on an assumption that Colin was entitled to 50 percent of the funds in accounts held jointly with Ann. He proceeded on that assumption because Colin and Ann had, over many years, a large number of bank accounts about which he did not have any, or any sufficient, information, including who had contributed to them and in what amount. Mr Fettes did not have the necessary information which may have enabled him to identify how much Colin and Ann had each contributed to these accounts. Mr Fettes assumed that there was a joint pool of assets - not limited to any particular account - to which Ann and Colin had contributed equally. He accepted in cross-examination that this assumption was potentially displaced by the disparity in the income received by Colin and Ann. Between 2000 and 2005, Colin's taxable income was between $15,000 and $25,000; Ann's taxable income in the period from 2002 until 2014 was between $95,000 and $147,000.[36]

126 As stated by Mason CJ, Wilson and Deane JJ in Baumgartner, '[e]quity favours equality'.[37] The context of their Honours' observation was as follows:[38]

The facts that the Leumeah property was acquired and developed as a home for the parties and that, at least indirectly, it was largely financed out of money drawn from the pool of their earnings, this being one of the purposes which the pool was to serve, combine to support an equality of beneficial ownership at least as a starting point. Equity favours equality, and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind.

127 In Hibberson v George,[39] the issue was whether a constructive trust should be imposed where one partner in a former de facto relationship was the registered proprietor of a property and had paid the deposit, mortgage payments and outgoings in relation to it, and the other partner had funded certain improvements of the property and its furnishings. McHugh JA (with whom Hope JA agreed) stated that, in such a case, the 'evidentiary onus' was on the first mentioned person 'to establish that there should be a departure from the "equality" principle'.[40]

128 The same point was made by Campbell J in West v Mead who, after referring to the observations by Mason CJ, Wilson and Deane JJ in Baumgartner referred to above, stated:

In accordance with this approach, a plaintiff needs to establish that there is indeed a joint endeavour between the parties, in which expenditure is shared for the common benefit. It is also necessary to identify what the scope of that joint endeavour is. It is a question of fact, for any couple, what the scope of the joint endeavour they are engaging in is. Further, for any couple, the scope of the joint endeavour they are engaged in might change from time to time. If, within the scope of a joint endeavour which lasts for years, an asset is acquired, as a result of contributions both parties have made, and for a purpose of the ongoing joint endeavour of the parties, this gives rise to the presumption that the beneficial interest ought be shared equally. That presumption can be displaced if one party is able to show that the contributions, both financial and non-financial, to that asset should be regarded as unequal. In practical terms, this way of proceeding will place the onus of attributing a value to non-financial contributions on the person who asserts that the title should be held unequally.[41]

129 In dealing with the matter of mortgage repayments, his Honour continued:

A second way in which the principle that beneficial ownership should be proportionate to contributions, which underlies the law of resulting trusts, is transmuted in the Baumgartner type of constructive trust, is in another aspect (besides counting non-monetary contributions) of what counts as a contribution to the purchase price. The payment of mortgage instalments, after a property has been acquired using money borrowed and secured by mortgage, has been accepted as a "contribution", in this context - Baumgartner at 148. This is unlike the resulting trust principle, in accordance with which it is only in unusual situations that a payment of such mortgage instalments is regarded as a contribution. ...

Even if one bears in mind that mortgage instalments usually include a component of each of principal and interest, it is still possible for the mortgage instalment to be taken into account in deciding the terms of a constructive trust. Continual payment of the interest on the loan which finances the family home is every bit as much a part of the joint endeavour of maintaining the family unit and providing for its future as is meeting other recurrent but necessary expenses like buying the groceries. But the fact that part of the instalment is a payment of interest means that the beneficial interest in property acquired as a result of paying an instalment is not likely to be equal in value to the amount of the instalment paid. It is the proportions in which contributions to the purchase price are made which matter in determining beneficial ownership, not the absolute amount of such contributions.[42]

130 The length of Colin and Ann's relationship and in particular their extensive involvement in buying and selling real property and other investments distinguishes this case from many of the cases in which a constructive trust of the type considered in Baumgartner is sought to be imposed in respect of property acquired by former partners to a domestic relationship. Colin and Ann were in a domestic relationship for about 35 years over which time they purchased 11 properties. Most were owned by Colin and Ann as joint tenants, but three were registered solely in Ann's name.[43] Colin also brought significant assets to the relationship in the form of three real properties and a taxi licence. Colin and Ann's active involvement in the property market was mirrored by their participation in the market for taxi licences. They bought and sold two licences as part of their taxi licence partnership; Colin bought and sold two other licences, including the one he acquired before their relationship.

131 Many different bank accounts and financial facilities were used by Colin and Ann in relation to the various real property and taxi licence transactions in which they were involved. Some of these accounts were held solely by Colin or Ann, others were joint accounts. In some instances, the source of funds used to purchase properties and the accounts to which the proceeds of sale of properties and taxi licences were disbursed involved a mix of joint accounts and accounts held solely by Colin or Ann.[44] Neither party adduced evidence tracing Colin and Ann's respective financial contributions through these accounts and facilities to the various assets purchased including Treetop.

132 Putting to one side Mr Fettes' evidence based on the assumptions that he identified, the evidence does not enable the actual value of the respective financial contributions made by Colin and Ann to the purchase of Treetop to be identified. The evidence only allows for findings to be made as to the amount of financial contributions made to the purchase of Treetop which flowed from particular accounts, and the nature of those accounts.

133 The evidence, including the analysis undertaken by Mr Fettes, supports a finding that the source of the funds used to purchase Treetop was overwhelmingly various accounts held jointly in Colin and Ann's names.

(a) The largest contributions - $471,000 in total - came from the Yarrambat funds account, being a joint account in Colin and Ann's names which held the proceeds of sale of the Yarrambat property, their former primary residence of which they were joint proprietors. These funds were used to pay the Treetop mortgage. [45]

(b) $108,524.92, though directly paid from an account in Ann's sole name, emanated from a term deposit account held jointly in Colin and Ann's names.[46]

(c) The funds used to pay the deposit of $50,000 originated in accounts held jointly in Colin and Ann's names.[47]

(d) Repayments of principal and interest of approximately $20,000 came from an account in Ann's name.[48]

134 Where spouses have purchased property from a joint bank account, in the absence of evidence about the proportion of funds they contributed into the joint account, there is a presumption of equality of contribution. The principle was expressed by Nygh J of the Family Court of Australia in In the Marriage of Read[49] as follows:

...where the parties have paid out money to acquire property, or an interest in property, out of a joint account into which each of them have paid moneys, then in the absence of any evidence to indicate that the moneys came overwhelmingly from one source rather than the other, I can proceed on the assumption that each of the parties acquired an equal interest in the properties which were acquired or extended out of joint investments...'.[50]

135 Counsel for Mr Cronin submitted that, although there was evidence to show that moneys used to purchase Treetop may have originated in accounts in the name of both Ann and Colin, there was no evidence indicating that Colin contributed any money to those accounts. Although it is true that there is no direct evidence to this effect, other facts established by the evidence provide a clear basis to infer that Colin made a financial contribution, albeit in an amount which cannot be quantified on the evidence, to at least the Yarrambat funds account and in all likelihood the joint accounts referred to in [133(b)]-[133(c)] above.

136 The Yarrambat funds account held most of the net proceeds of sale of the Yarrambat property which had been held jointly by Colin and Ann and which had been their home for about 2 years. Colin and Ann had purchased the Yarrambat property in 2002 after they sold their previous home, the Balwyn property, at which they had lived since 1996 and which they held jointly. Most of the purchase price of the Yarrambat property was paid using the net proceeds of sale from the Balwyn property. Colin and Ann had in turn purchased the Balwyn property when they sold the Lower Plenty property on which they had built their first home in about 1974 and at which they had lived over the ensuing 22 years.

137 It is apparent from this history that, when the large majority of the Treetop mortgage was repaid in early 2005 with $471,000 of money from the Yarrambat funds account, Ann and Colin were in effect applying part of the equity which they had accumulated in the jointly held properties which had successively been their principal places of residence over 30 years. Colin had driven taxis for a living over all of that time until 1999 and it may be inferred that he also received income from the two taxi licences which he owned separately to the licences held jointly with Ann. In addition to the three real properties which Colin brought to the relationship with Ann, in the five years before Treetop was purchased, Colin also brought substantial funds to the relationship: $84,554.32 from a deceased estate which was paid into bank accounts held jointly with Ann and $302,500 from the sale of a taxi licence, nearly all of which was also paid into an account held jointly by Colin and Ann.

138 The facts referred to in the above paragraphs enable me to infer that Colin contributed to the funds held in the Yarrambat funds account and the joint accounts referred to in [133(b)]-[133(c)] which collectively were the source of the funds used to purchase Treetop. Further, in relation to the Yaralla Crescent line of credit from which the deposit on Treetop was paid using funds from the joint accounts referred to in [133(c)], I also note Mr Fettes' unchallenged evidence, which I accept, that there was little distinction, if any, between funds held or borrowed by Ann and those held jointly by Ann and Colin.

139 It was next submitted on behalf of Mr Cronin that the assumption that Colin and Ann had contributed equally to their pool of assets had been displaced. Particular emphasis was given to the fact that, whereas Colin retired in 1999 and was in receipt of a full pension from 2009, Ann continued to work until 2015 over which time she earned a significant income.[51] In criticising Mr Fettes' evidence, it was also submitted that the pool of assets which he considered did not include five accounts solely in Colin's name. The pool of assets also did not include any contribution of Colin's pension, which appears to have been deposited into another account. More generally, it was submitted that there were a large number of joint accounts operated by Colin and Ann throughout their relationship which were used for various purposes. Mr Fettes accepted that he had worked from an assumption that there was a pool of assets to which both Colin and Ann had contributed equally. The assumption was not that the funds in a particular joint account were contributed to equally, but rather, that the equal contribution had been to the pool of assets more generally. It was submitted that, if the consideration must be of the total of the assets held by Colin and Ann, then any evidence that there was an unequal contribution by one party must displace the assumption that the parties contributed equally to the joint funds. That is, the funds held in any accounts which are jointly named cannot be assumed to have been created by equal contributions.

140 Most of these submissions are misdirected. The focus must necessarily be on the contributions made to the purchase of Treetop. The property was purchased in April 2004 and the mortgage repaid in September 2005. Having regard to the principles to which I have referred in [126]-[129] and [134] and in light of my finding that Colin contributed to the funds held in the accounts which were the source of the funds used to purchase Treetop, the onus was on Mr Cronin to adduce evidence to establish that, before September 2005, the moneys used to fund the purchase of Treetop came predominantly from Ann rather than Colin. He has not done so. The focus on Ann and Colin's respective contributions after that time is misconceived.

141 Given the source of funds used to purchase Treetop, the disparity in Colin and Ann's incomes in the period between Colin's retirement in 1999 and when the Treetop mortgage was repaid in 2005 does not establish that their financial contributions to its purchase were unequal. As I have explained, more than two thirds of those funds were from the Yarrambat funds account which represented part of the equity which Colin and Ann had accumulated from their jointly held principal places of residence over 30 years. Mr Cronin has failed to rebut the presumption that the moneys in the joint bank accounts used to fund the purchase of Treetop were contributed equally by Ann and Colin. Accordingly, and having regard to my earlier analysis of the source of the funds used to purchase Treetop, I accept Mr Fettes' evidence that Colin contributed approximately 48% of the total purchase price of Treetop.

142 Counsel for Colin next submitted that, if Colin was found to have contributed to the purchase of Treetop, those contributions occurred in the context of furtherance of his relationship with Ann and that the nature of the assets held by Colin and Ann when Treetop was purchased was that there was a pool of assets. The records did not permit those assets to be sensibly divided up between the parties. In those circumstances, any contribution found to have been made by Colin to the purchase of Treetop could not properly be considered to be a contribution to the acquisition and maintenance of the Treetop asset. In support of these submissions, Colin relied upon the following observations by Sifris J (as he then was) in Hill v Love:[52]

A blanket claim by a plaintiff over all of the defendant's property based solely on promises by the defendant to the plaintiff is not sufficient to raise in the plaintiff an equitable interest under a constructive trust. Regard must instead be had to the contributions made to specific assets over which an equitable interest is claimed. The contributions need not necessarily have been made directly to the acquisition or improvement of the property in issue, but must be linked (albeit indirectly) to the acquisition, maintenance and improvement of the property. It is not sufficient that one person has merely benefited from the contributions of another, or that the contribution has enhanced the material wellbeing of parties to the relationship

143 Justice Sifris also referred with approval to Kaye J's (as his Honour then was) detailed consideration in Cressy v Johnson of Deane' J's judgment in Muschinski, including the following statement:[53]

... Accordingly, in order to be entitled to an interest under a constructive trust, the plaintiff must establish that the contribution, on which she relies, was not simply directed to advancing the welfare of the defendant, and of the family unit of which he was then a part. Rather, the contribution of the plaintiff, on which the constructive trust is to be based, must have been directed to the acquisition and maintenance of the assets in respect of which the plaintiff claims an interest under the constructive trust.

144 These principles may be readily accepted. However, they do not support the submission made on behalf of Colin in the circumstances of this case. Unlike the contributions which Colin made to the purchase of Treetop, the plaintiffs in Cressy v Johnson and Hill v Love did not make any direct or indirect financial contributions to the acquisition of the properties in question, including mortgage repayments.[54] That Colin and Ann held a pool of assets when Treetop was purchased, does not mean that the contributions made by Colin cannot be viewed as being contributions to the acquisition and maintenance of the Treetop asset.

145 When Treetop was purchased in 2004, Colin and Ann had been in a domestic relationship for 32 years, over which time they and their children from previous relationships lived together in the family home, first at Lower Plenty, then Balwyn and then at the Yarrambat property. Treetop was to be their next home. Over the same period, Colin and Ann also made various investments, buying a supermarket, three taxi licences and seven properties.[55] All of these assets were purchased from a mix of borrowed funds and from Colin and Ann's own funds held in numerous accounts. Other than on the limited basis set out in Mr Fettes' evidence, neither party has sought to lead evidence cataloguing all of the various accounts used by Colin and Ann and tracing the flow of funds through them.

146 The evidence establishes that Colin and Ann shared expenditure for the purpose of a joint relationship or endeavour being their domestic relationship, underpinned in material terms by their family home, and augmented by a pool of other investments. So much is clear from the various and numerous joint accounts which they maintained and the history of the properties which were their family homes, to which I have referred, all of which were jointly owned by Colin and Ann. It is also supported by the fact that they jointly owned most of the other properties which they purchased[56] and two of the three taxi licences.

147 However, it is apparent that the joint endeavour was not comprehensive and exhaustive of all of Colin and Ann's financial affairs and all of the assets which either of them acquired in the course of their domestic relationship. They each maintained various separate bank accounts in their own names, not all of their respective income was pooled[57] and they each bought and sold assets of which they were the sole owner. Collectively, these characteristics were a non-trivial and consistent feature throughout their domestic relationship. They are also consistent with the fact that Ann wanted to ensure that separate provision was made for Kim and Kate after her passing.

148 It is necessary to determine whether Treetop was acquired in the course of and for the purposes of this joint endeavour. Although the fact that the property was registered solely in Ann's name might be said to suggest that it was not acquired as part of their joint endeavour, that feature of itself is not determinative. The fact that Treetop was purchased in order to be their home after the sale of the Yarrambat property and that the mortgage was repaid using funds from joint accounts which represented part of the equity that they had accumulated from their previous homes over 30 years leads me to conclude that the property was acquired in the course of and for the purposes of Colin and Ann's joint endeavour.

149 The substratum of Colin and Ann's joint endeavour was removed and the joint endeavour prematurely terminated 'without attributable blame' when their domestic relationship came to an end sometime in the period between 2006 and 2008.

150 It remains necessary for Colin to establish that it would be unconscionable for the benefit of the contributions he made to the purchase of Treetop to be retained by Ann's estate. As stated by Campbell J in Hill v Hill, '[t]he onus is on the person asserting that a trust should be imposed to satisfy the court that it would be unconscionable for the property interest to lie where it falls'.[58] This enquiry does not however 'import idiosyncratic notions of what is just or fair but must be informed by equitable principle'.[59] '[T]he remedy of a constructive trust is not a response by equity to a perceived unfairness where, on the termination of a personal relationship, the legal arrangements between the parties do not reflect the commitment and contributions of each party to that relationship'.[60]

151 Colin's case was that the 'unconscionability in this proceeding is the fact that the Estate claims to be the beneficial owner of [Treetop] when the contributions made by Colin amount to 48.09% of the property'; unconscionability 'is the flow of money'. Although 'the mere making of [a] contribution in a domestic relationship is not something which automatically results in a trust, or a charge for an amount equal to the amount of the contribution',[61] the substantial quantum of the contributions which Colin made to the purchase of Treetop in the context of his long standing joint endeavour with Ann is fundamental in considering whether Mr Cronin's assertion that Treetop is beneficially held by Ann's estate is unconscionable.

152 When Treetop was purchased, Colin and Ann had jointly built up a pool of assets over many years. It may be accepted that they were doing so on the assumption that the pool would be available in the future for their joint endeavour. Both Colin and Ann must be taken to have known that the contributions they each made to the purchase of Treetop were for the benefit of their joint endeavour on the basis that it was to be their home and part of their joint pool of assets to be used for their ongoing common benefit. Considered in isolation, this may be said to render it unconscionable to let the legal title to Treetop lie where it falls.

153 However, there is a further important manifestation of Colin and Ann's joint endeavour which should be considered in determining whether it is unconscionable for Mr Cronin to refuse to recognise any equitable interest by Colin in Treetop. As the High Court stated in Warman International Ltd v Dwyer, in considering the grant of equitable relief, '[i]t is necessary to keep steadily in mind the cardinal principal of equity that the remedy must be fashioned to fit the nature of the case and the particular facts.'[62] In the circumstances of this case, it would be inappropriate to consider the issue of unconscionability by solely focusing on Treetop without having regard to the other assets which comprised Colin's joint pool of assets and which were accumulated as part of their joint endeavour.

154 By 2008, Colin and Ann's domestic relationship had come to an end, as had their taxi licence partnership. The only significant assets that they then owned were Treetop and Tamboon. The latter property, of which Colin and Ann were joint tenants, had been purchased in October 2005, about 18 months after Treetop had been purchased. Colin's evidence-in-chief was that, like Treetop, Tamboon was purchased using their joint financial resources. No case was advanced on his behalf that his contribution to its purchase was greater than the contribution made to it by Ann. It is reasonable to proceed on the basis that their contributions to its purchase were broadly equal. The purchase of Tamboon, occurring as it did while their domestic relationship subsisted, is therefore properly viewed as occurring in furtherance of Colin and Ann's joint endeavour.

155 Importantly, although as a joint tenant Tamboon would pass to Ann in the event that Colin predeceased her, by clause 4 of the her will,[63] Ann directed that, after her passing, Tamboon be devised to Colin's children as tenants in common in equal shares. In practical terms, by this provision, Ann treated Tamboon as belonging solely to Colin. Colin has not proffered any acknowledgement that Mr Cronin holds any beneficial interest in Tamboon in light of Ann's contributions to it.

156 Considering in broad terms the pool of assets from Colin and Ann's joint endeavour comprising Treetop and Tamboon which remained after the demise of their relationship and taking into account Colin's interest in Tamboon referred to above, by his claim in this proceeding, Colin is asserting that he is entitled to all of those assets (in relation to his primary claim for a declaration that Treetop was held by he and Ann as joint tenants), or at least the large majority of them (in relation to his alternative claim for a declaration as to his holding of an equitable interest in Treetop to the extent of his contribution towards it). Colin did not advance any argument seeking to impugn the propriety or fairness of the various transfers and disposals of assets which occurred late in, or after, the period of his domestic relationship with Ann[64] which might potentially affect the appropriateness of considering in this way the remnant pool of joint assets held by Ann and Colin comprising Tamboon and Treetop.

157 As stated by Deane J in Muschinski, general notions of fairness and justice are relevant to the concept of unconscionable conduct.[65] In Grimaldi[66], the Full Court of the Federal Court stated that the cardinal principal of equity that the remedy must be fashioned to fit the nature of the case and the particular facts:

... is informed by the intent that the court should, by the exercise of its powers "do what is practically just"... and that is manifest, for example, in the requisition that a party who seeks equity must do equity ... or, more specifically, in the recognition (Warman at CLR 561; ALR 211-12) that:

... the stringent rule requiring a fiduciary to account for profits can be carried to extremes and that in cases outside the realm of specific assets, the liability of the fiduciary should not be transformed into a vehicle for the unjust enrichment of the plaintiff.[67]

158 The Full Court also referred to the 'greatest recent emphasis on the need to award the remedy that is "appropriate" in the circumstances', as being where relief by way of the remedial imposition of a constructive trust upon property has been sought.[68] After noting that the 'considerations of principle and pragmatism which can bear on the award or refusal of a constructive trust are various',[69] one consideration identified by the Full Court was whether:

... the award of a constructive trust [would] be a disproportionate response having regard to the degree of wrongdoing of the respondent and the extent to which the benefit derived was attributable to his or her breach of duty or wrongdoing? Would it go "beyond the necessities of the case"? see John Alexander's Clubs at [129]; see also Ridge, pp 462-3.[70]

The Full Court found that proprietary relief in the form of a constructive trust was an inappropriate remedy in relation to one of the claims before it as it went beyond 'the necessities of the case' for various reasons, including because it would be a 'vehicle for the unjust enrichment' of the plaintiff.[71]

159 The above principles make clear that the grant of an equitable remedy such as the imposition of a constructive trust must be appropriate in the circumstances of the case and achieve 'what is practically just' for the parties. Although Colin contributed about 48% of the price of Treetop, taking into account the fact that he holds all of the legal and equitable interest in Tamboon and that he and Anne contributed equally to both properties, as explained in [146] above, it would offend against conscience to impose a constructive trust as sought in relation to Treetop as it would result in Colin holding a disproportionately greater share of the joint assets which remained from his and Ann's joint endeavour. Colin himself accepted in cross-examination that, given that Ann contributed to both Treetop and Tamboon, it would be unfair if he received all of Tamboon as well as all of Treetop. The imposition of a constructive trust would, in effect, become a vehicle for his unjust enrichment. In the circumstances of the case, practical justice between the parties demands that the Court should not find or impose a joint endeavour constructive trust in relation to Treetop.

160 As I have noted, although Colin's claim in relation to Treetop was advanced on the basis of a joint endeavour constructive, reference was also briefly made in closing submissions to a common intention constructive trust. [72]

161 In Zekry v Zekry, the Court of Appeal referred without criticism to McMillan J's identification of the following elements to be satisfied in order for a common intention constructive trust to be imposed:[73]

(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.

162 It was submitted on behalf of Colin that his and Ann's common intention was to hold Treetop as joint tenants 'as all the other properties had been held'.

163 This submission is contrary to Colin's own evidence that he assumed Treetop would be owned by he and Ann jointly; he did not give evidence to the effect that he and Ann actually had such an intention. Nor can such a finding be inferred from the evidence. Such an inference would be inconsistent with the documents which show that Ann bought Treetop solely in her own name and also entered into the Treetop mortgage in her own name. Further, as I have already noted,[74] the assertion that all the other properties were held by Colin and Ann as joint tenants is wrong.

164 Colin has also failed to establish any form of detrimental reliance by him on the conduct about which he complains. For example, there is no evidence to suggest that, had he found out sooner that he was not recorded as a part owner of Treetop, that he would have taken any action to remedy the situation.

165 The claim that Mr Cronin holds Treetop pursuant to common intention constructive trust accordingly fails.

166 For the reasons given, the claims brought by Colin are rejected. The proceeding is accordingly dismissed.

167 Within 14 days, the parties are to submit any proposed minute of consent order in respect of costs or, in the absent of agreement, short submissions on costs limited to four pages.

[1] The Inventory of Assets and Liabilities filed by Mr Cronin in his application for a grant of probate in relation to Ann's will dated 30 June 2016 records the property's total value (in 2018) as $1.42 million.

[3] Being Westpac Bank account no. 56-4079.

[4] On 15 September 2005, $50,000 was transferred from that term deposit account to the Treetop mortgage account.

[5] The remaining amount of $20,000 was referable to fees and charges and capital gains tax liability which was borne equally be Colin and Ann.

[6] Colin had earlier bought a caravan in 2002 for $19,000 which he stored at various locations including Tamboon until he sold it for $15,000 in 2007.

[7] [1987] HCA 59; (1987) 164 CLR 137 ('Baumgartner').

[8] [ 2020] VSCA 336 ('Zekry Appeal').

[9] Ibid [67]-[68], omitting citations.

[11] [2020] VSC 221, [88] ('Zekry Trial').

[12] (2009) 2 ASTLR 336, [51]-[53] (Ward J).

[13] The Court of Appeal's conclusions are summarised at Zekry Appeal (n 8) [160].

[14] [1985] HCA 78; (1985) 160 CLR 583 ('Muschinski').

[15] Zekry Appeal (n 8) [79] (Tate, Kyrou and Niall JJA).

[16] Muschinski (n 14) 620 (Deane J) (citations omitted).

[17] Zekry Appeal (n 8) [80]-[82] (Tate, Kyrou and Niall JJA).

[24] Known as 'Lisa' and referred to as such below.

[25] Considered further below at [96]-[97].

[26] Although the certificate was not in evidence before me, Colin gave unchallenged evidence to this effect without objection.

[27] Colin's tax returns for 2003 and 2006 were in evidence. Ann's tax returns for 2002 to 2017 were in evidence.

[29] The St Andrews property and Tamboon: see [45]-[46] above.

[30] Bendigo Bank Account no. 1149800089.

[31] Bank of Melbourne account no. 14-7129 and account no. 56-4076.

[32] Bank of Melbourne account no. 666542.

[33] Bank of Melbourne account no. 23-5209.

[34] See [44] above.

[36] The periods in relation to which there was evidence of Colin and Ann's respective incomes did not correspond.

[39] (1989) 12 Fam LR 725.

[41] West v Mead (2003) 13 BPR 24, 431, [59].

[43] The Alexandra Street property, Yaralla Crescent and Treetop.

[44] See for example [32], [36], [44], [124] and [125] above.

[45] See [124(c)] above.

[46] See [124(b)] above.

[47] See [124(a)] above.

[48] See [124(e)] above.

[49] [1984] FamCA 22; (1984) FLC 91-527.

[50] [1984] FamCA 22; (1984) FLC 91-527, 79,280.

[51] As noted in [125] above, between 2000 and 2005, Colin's taxable income was between $15,000 and $25,000; Ann's taxable income in the period from 2002 until 2014 was between $95,000 and $147,000.

[52] (2018) 53 VR 459, 482 [127], citations omitted, ('Hill v Love').

[53] Cressy v Johnson [2009] VSC 52, [197] ('Cressy v Johnson').

[54] Cressy v Johnson (n 53) [188]; Hill v Love (n 52) [139]-[141].

[55] In addition to Treetop and the family homes at Lower Plenty, Balwyn and the Yarrambat property.

[56] As I have noted, only Treetop, Alexandra Street and Yaralla Crescent were registered solely in Ann's name.

[57] Colin's pension was paid into an account in his own name.

[58] [2005] NSWSC 863, [36] ('Hill v Hill').

[59] Zekry Appeal (n 8) [81] (Tate, Kyrou and Niall JJA).

[60] Cressy v Johnson (n 53) [197].

[62] Warman International Ltd v Dwyer [1995] HCA 18; (1995) 182 CLR 544, 559 ('Warman').

[64] See [47]-[50] above.

[66] Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 ('Grimaldi').

[67] Ibid [503] Most citations omitted.

[71] Grimaldi (n 66) [680,], [681].

[72] See [61] above.

[73] Zekry Appeal (n 8) [75] (Tate, Kyrou and Niall JJA); Zekry Trial (n 11) [82].