Plaintiff v First Defendant

1 Richard Berian Phillips (Richard) was a barrister who died unexpectedly and intestate on 2 January 2018. Since 1 May 2016 he had been married to Ingrid Mary Phillips (nee Duncan) (Ingrid). Between 2004 and June 2012, Richard was in a romantic or domestic relationship with the plaintiff (Kavitha).

2 On 6 July 2004, Marble and Granite Import Company Pty Ltd (MAGIC Pty Ltd) entered into a contract to purchase a property of approximately 23 acres at 134 Moores Rd, Clyde (the farm) for $740,000. MAGIC Pty Ltd was incorporated on 2 July 2004 for this purpose. Prior to incorporation, Kavitha had operated her business interests using 'Marble and Granite Import Company' as a business name. On incorporation, Richard, Kavitha and Kavitha's friend Colin Thompson (Colin) each held one of three shares in MAGIC Pty Ltd. On settlement on 25 January 2005 the registered proprietor became the Moores Road Unit Trust (the Moores Rd Trust), which was created for this purpose. Richard and Colin were the initial trustees, each holding one unit. At the time of settlement each was issued a further 395,000 units.

3 Kavitha and Colin commenced to work the farm operating a market garden that grew Indian and other herbs and vegetables. They supplied grocery stores and sold produce at farmers' markets. On 18 May 2006, Colin and Richard entered into an agreement by which Colin retired from the Moores Rd Trust and Richard purchased Colin's interest in the trust, becoming the sole registered proprietor of the farm in his capacity as sole trustee. The parties have agreed for the purpose of this case that, on Colin's transfer of his interest to Richard, the trust ceased to exist and Richard became the sole legal and beneficial owner, subject to any claims that Kavitha makes.[1]

4 Although not being on title, Kavitha brings this proceeding against Richard's estate on the basis that she has a beneficial interest in the farm. She alleges that Richard's estate holds half the farm, or some other proportion of it, on trust for her. She alleges a beneficial interest pursuant to a constructive trust, either because of a common intention or a proprietary estoppel, and alternatively because as her contributions were made in the course of a joint endeavour during her relationship with Richard it would be unconscionable to deny her interest in the farm. Kavitha relies on Richard's representations as to her beneficial interest. In reliance on those representations, or because of the manner in which their domestic relationship was conducted, Kavitha says she has contributed to the acquisition, maintenance and improvement of the farm.

5 On 24 April 2018, Ingrid was granted letters of administration upon intestacy for Richard's estate. She was also appointed trustee and issued all units in the Moores Rd Trust. Ingrid died on 17 December 2020 and her son, Caylen Duncan (Caylen) was granted probate of Ingrid's estate and appointed trustee of the Moores Rd Trust. Caylen was substituted as the first defendant. He is sued in his capacity as executor of Ingrid's estate, which is now the registered proprietor of the farm.

6 Caylen disputes any constructive trust or proprietary estoppel and raises the defence of laches. He also counterclaims, alleging that Kavitha's presence on the farm was permitted pursuant to a bare licence arising from her domestic relationship with Richard. Caylen says the bare licence was cancelled when Ingrid's lawyers sent Kavitha a notice to vacate on 8 July 2019, but Kavitha did not vacate and has not vacated. Caylen alleges that Kavitha was trespassing on the farm and that therefore he is entitled to mense profits from 7 August 2019, being 30 days from the date of the notice to vacate.

7 On 12 February 2019, Kavitha lodged a caveat over the farm. Ingrid applied to remove the caveat to sell the farm. Against the second defendant, the plaintiff originally sought an order amending the certificate of title. The second defendant took no part in the trial and will abide the outcome. On 25 August 2020, Kavitha and Ingrid (the first defendant at the time) reached an agreement that Kavitha could continue to occupy the premises subject to a number of conditions including payment of occupation costs (the caveat removal agreement). The parties agree that occupation costs from that time until 7 October 2022, if owed, total $38,000.[2]

8 On 22 April 2021, Caylen, as executor of Ingrid's estate, entered into a contract to sell the farm.[3] Neither party seeks any remedy that would preclude settlement of that contract of sale nor the interest of the purchaser under that contract. Settlement is not due until 23 April 2026. Kavitha does not seek any remedy in priority over the purchaser's rights under the contract. Rather she seeks to remain in occupation until settlement, either pursuant to her proprietary interest if established, or alternatively under the caveat removal agreement. A remedy so fashioned would protect the parties' interests should the settlement not proceed.

1. Was there an agreement at the time of purchase that ownership of the farm would not be in accordance with the ownership as registered on title, but by way of three equal shares?
2. Was there an agreement in 2006 when Richard bought out Colin's interest that ownership of the farm would be other than as registered on title, by way of two shares?
3. What cash contributions did Kavitha and her parents (on her behalf) make to the acquisition, maintenance or improvement of the farm?
4. By what other conduct or payment did Kavitha contribute to the acquisition, maintenance or improvement of the farm during the relationship with Richard?
5. Based upon the findings of fact, does Duncan hold on trust for Kavitha a proportion of the farm, and if so what proportion?
6. Is Kavitha's claim barred by a defence of laches?
7. Is the counterclaim for mense profits and occupation costs made out?
8. Finally, what is the appropriate form of remedy?

10 The evidence in this case contains critical conflicts between documentary evidence, including statements by Richard prior to his death and oral evidence including conversations and oral agreements with Richard both during and after his relationship with Kavitha. The narrative of the evidence highlights the points of conflict. The following people gave oral evidence: Kavitha, her mother, Colin, and three people who undertook work at the farm: Beckim Azemi (Beckim), Sandeep Nehra and David Lightowler. Alan Sheppet, Richard's solicitor, also gave oral evidence.

11 The defendant took evidence from Ingrid in a de bene esse hearing prior to her death and tendered the recording and transcript of that evidence.[4] In addition a large number of documents were tendered.

12 Documentary evidence tendered included statements from a number of Richard's bank account from the relevant periods.

13 Kavitha was born in India on 13 February 1971. Her mother is a retired psychiatrist and her father a retired administrator that educates health professionals. She was home schooled and privately tutored. She also said that she stopped going to college and didn't attend Bangalore University as her parents wished. Kavitha and her family have farming interests in India.

14 Kavitha came to Australia in 1988 with an Australian resident, Malcolm Chipperton, to undertake a hospitality course at William Angliss College. She was in a domestic relationship with Chipperton until his death from cancer on 2 May 2003.

15 Kavitha had several jobs that helped with her course: working in housekeeping on the Spirit of Tasmania, and working as a chef in childcare, nursing homes, and restaurants. She also began a business in landscaping and gardening that led her into the business of importing granite and marble, contracting with builders for the supply of such materials to building projects.[5] She operated this business as a sole trader under the business name of Marble and Granite Import Company. She said she also came to Australia intending to take up farming.[6]

16 Immediately before Chipperton's death, he and Kavitha were living together at a property in East Boundary Rd, East Bentleigh (the East Bentleigh house).

17 Chipperton's daughter Meredith purchased the East Bentleigh house and became registered proprietor. Meredith was the borrower and guarantor of bank funds as Chipperton was too old to obtain a loan and Kavitha was not an Australian resident.[7] In addition to borrowings, Kavitha said that both Chipperton and Kavitha (or her parents on her behalf) advanced funds.[8] Kavitha said 'I made sure we had a trust deed signed',[9] as Meredith was going to hold the property on trust.[10] She said that Chipperton told her that the trust deed was to protect her.[11] She also said she hadn't seen the trust deed and didn't know if she was named in it. She said she trusted her partner.

18 There was a dispute over Chipperton's will. According to an affidavit that Richard swore,[12] the effect of Chipperton's will was that Kavitha was to receive the East Bentleigh house provided she paid $105,000 to Chipperton's daughters. She would also receive his residuary estate.

19 Kavitha consulted a lawyer to help her ' get the house'.[13] In 2004, Kavitha commenced two proceedings against the Chipperton estate: one for provision under Part IV of the Administration and Probate Act 1958 (Vic) and another seeking a declaration that Meredith held the East Bentleigh house on trust for the estate. Chipperton's three adult daughters had also applied for further provision for their maintenance and support from the estate. All proceedings against the estate were resolved in principle on 24 June 2008.

20 The defendant put the 2008 terms of settlement to Kavitha in cross-examination as demonstrating that she did not claim any interest in the East Bentleigh house, her only interest was as a beneficiary under the will. Kavitha initially said she didn't read documents like this as she trusted her partner. She agreed 'on paper' that she had no interest in the property but that she had an interest in the East Bentleigh house because she 'was his partner'.[14]

21 The 2008 terms of settlement agreed the value of the East Bentleigh house at $400,000. The terms were that Kavitha would pay $400,000 into the estate, discharge the existing mortgage over the East Bentleigh house and pay the sum of $52,500 to each of Chipperton's three daughters, upon which she would be entitled to transfer of the East Bentleigh house as part of her entitlement to the net residue of the estate. The terms also required Kavitha to pay Meredith's and the executor's legal costs for the declaration proceeding.[15]

22 On 20 June 2011 the parties signed supplementary terms of settlement confirming that the preconditions set out in the 2008 terms of settlement had been met and setting out the payments that Kavitha was required to make upon settlement.[16] Those payments totalled approximately $738,500.

23 Kavitha met Richard when her solicitor briefed him in relating to the Chipperton matters. By Kavitha's evidence they were introduced in late 2003. According to Richard's affidavit they met in early 2004.[17] Kavitha says she moved in to live with Richard between February and April 2004.[18] When the personal relationship developed, Richard ceased to be Kavitha's barrister. It is uncontroversial that this occurred before Kavitha filed the Chipperton estate proceedings.

24 Richard made a signed statement in December 2014 (2014 statement). In that statement he said:

In mid-2004 KG [Kavitha] prevailed upon me to purchase 134 Moores Rd, Clyde (the farm) a 23 acre fully functioning market garden. A friend of KG's, Colin Thompson was also to be involved.[19]

25 Kavitha's evidence was that she wished to purchase a farm in Australia as her family in India had extensive farming interests. In examination-in-chief she gave various reasons for her wish to do so: to pursue the cultivation of silkworms,[20] as a useful site to store landscaping material used in her business,[21] and to run a market garden.[22] Kavitha described finding the farm with a friend Surita Kulkarni. She said that upon seeing the farm:

I had this feeling...like I had the feeling in East Boundary Rd. I knew it was my house...That feeling when you see a property and it hits you in the heart and your mind.[23]

26 Kavitha said initially she and Colin wanted to buy a farm together.[24] First she said they thought they would buy on a 'half and half' basis.[25] Later Kavitha said she insisted on having a 51%/49% split.[26] She said that if Colin could not contribute half then her parents would cover any extra money.

27 Kavitha's evidence was that she went with Colin to his accountant and learnt that Colin could borrow less than expected. She said she kept Richard informed of her plans but that initially he was not part of the purchase. She said that Richard then proposed that he join her and Colin in the purchase.[27] Following several discussions about the farm, Kavitha said that Richard told her:

'Well I'll put in one share and Colin and Kavitha can put in the rest, and I'll also pay for the stamp duty and stuff.'[28]

28 Kavitha said that she sent Colin to the real estate agent to secure the deposit with a payment of $1,001.[29]

29 Colin recalled initially Richard and Kavitha were going to buy the farm. He said that Richard had said as a barrister he wasn't interested in running a farm so Colin became involved as a one-third owner to help run the farm.[30]

30 Kavitha gave evidence of a meeting between the three of them at Richard's office. She said Richard advised changing the business name MAGIC into a company and having three shares in the company. Kavitha said she disagreed. She said her earlier agreement with Colin was a 51%/49% split in her favour and she wanted to retain a larger percentage 'because it's my company, it's my land'.[31] After that Richard said it would be three equal contributions. Kavitha said she wanted to have one per cent more than either Colin or Richard but that she didn't know what happened in the end.[32]

31 In cross-examination Kavitha was taken to an affidavit she swore in 2019 in support of the caveat she lodged over the farm, in which she said that when the company was formed to hold the farm it was intended that she would hold 51% of the shares and Colin and Richard would hold the other 49%. She said that statement was 'not a hundred per cent true' and probably in the wrong order.[33] It was put to her that it was deliberately untrue, and was used by her as an explanation to support a claim for 50% interest in the farm.[34]

32 The contract note was signed on 6 July 2004.[35] It lists MAGIC Pty Ltd as purchaser of the farm. The price was $740,000 with a deposit of $74,000 due on 13 July 2004. It noted that $20,000 had already been paid. Settlement was to be on 10 December 2004 or earlier by agreement. Colin, Kavitha and Richard were all listed as guarantors.

33 Kavitha said that her share of the purchase was to be paid from funds her parents would provide. Despite her earlier evidence that her parents would provide any shortfall in the purchase price regarding Colin's contribution, she said Richard agreed to provide Kavitha's one-third share until the instalments from her parents arrived. In cross-examination it was put that Richard didn't agree to borrow Kavitha's share and pay two thirds at settlement. Kavitha said 'yes, he [Richard] borrowed two thirds, then my parents were paying him off slowly. That's probably the arrangement they had'.[36]

34 Much of Kavitha's evidence both in examination-in-chief and cross-examination emphasised that she did not make any arrangements concerning money but rather left it to others, nor did she read documents bearing her signature.

35 Colin said he was involved in the property as a one-third owner, with Kavitha and Richard being the other two owners of one third each. Colin's evidence was that this arrangement didn't change during his involvement with the farm.

36 Colin believed they had each paid one third towards the purchase price. Colin recalled borrowing against his unit in Cheltenham for his contribution. He thought he borrowed about $250,000 but was unsure precisely. Colin said his contribution was only ever the borrowings from his unit in Cheltenham.[37] He said he paid out the borrowing on the sale of the unit which, on the documents shown to him in cross-examination, was for a sale price of $270,000 in November 2005.[38]

37 Colin said that originally the intention was for there to be three owners, but then, because of 'some legal thing over a house in East Boundary Rd',[39] they decided not to have Kavitha's name on the papers because she could lose everything. He understood this was the reason her interest was not recorded on the documents. Colin said Kavitha told him this was what could happen.[40]

38 Kavitha gave evidence-in-chief that after she commenced the Chipperton proceedings there was a risk that if she lost she would be sued for money if there was property in her name and so she should give up her directorship and give her share to Richard. Colin said on paper he owned half the farm but he only ever paid a third of the purchase price.[41]

39 In cross-examination Kavitha was asked about the documents showing that in October 2004 she ceased being a director and a shareholder of MAGIC Pty Ltd. She was asked whether she knew of these changes. She first said she did, but shortly later said: 'Maybe I knew and maybe I didn't'.[42] She said Richard told her there was a restructure.[43] She said she was reassured because in December 2004 Richard made a will leaving the farm to her and granting her a power of attorney.

40 In cross-examination, Kavitha was asked about an affidavit she swore in March 2019 that stated she was unaware she had been removed as director and shareholder of MAGIC Pty Ltd. She said the statement was not correct.[44] She attributed it to an error and in fact she meant she was speaking about being unaware of the creation of the Moores Rd Trust.[45] Kavitha was taken to other paragraphs of the same affidavit that specifically dealt with her lack of awareness of the Moores Rd Trust.

41 The source of funds for the purchase of the farm can largely be traced from documents in evidence. The documents show that acquisition costs for the farm totalled $791,034, comprising $740,000 for the purchase price plus $47,934 for stamp duty, registration fees and other transaction costs. Richard's Bank of Melbourne account shows that on 14 July 2004 a cheque for $73,900 was presented, consistent with the deposit being due on 13 July. Richard's account showed an online transfer depositing $74,000 on 13 July 2004 described as FNDS TFR FARM DEPOSIT.[46]

42 On 14 December 2004 the Bank of Melbourne approved an increase of $50,000 to Richard's existing loan account over and above the $152,352 in available funds on the account.[47] On 15 December 2004, Richard executed a specific power of attorney in favour of Kavitha, dealing with the purchase of the farm and the directorship of MAGIC Pty Ltd.[48] On 23 December 2004, the Moores Rd Trust was established.[49] Richard and Colin were Trustees and Subscribers. Kavitha witnessed Richard's signature on the trust deed.[50]

43 Shortly after, on 13 January 2005, Richard executed a general power of attorney in favour of Kavitha.[51] As Richard was overseas at the time of settlement, Kavitha signed the transfer of land and the mortgage documents in her capacity as Richard's power of attorney. Richard and Colin were registered on title at settlement in their capacity as trustees. A letter dated 3 February 2006 from Richard's solicitors, Allan Sheppet & Associates, included the following on Richard's instructions:

We understand that the property was originally bought in the name of a company described as MAGIC Pty Ltd (which was incorporated shortly before the Contract Note was entered into). Subsequently, on accounting advice, it was decided that the property should be bought by a Trustee of a Unit Trust and the original Contract Note was cancelled and a substitute Contract dated 14 January 2004[52] in the names of Richard and Colin as purchasers was entered into after a Unit Trust was formed.[53]

44 Fair Legal's legal fees associated with the conveyance were invoiced to MAGIC Pty Ltd.[54] The invoice included attendances by the conveyancer on Michael Carley and Kavitha regarding changes to the loan structure and settlement. The reference to Carley is a reference to an accountant and taxation advisor who acted for the Moores Rd Unit Trust and Richard personally.

45 The Notice of Acquisition of an Interest in Land dated 21 January 2005 identified the relevant contract as being dated 14 January 2005.[55] It also identified Colin and Richard as the buyers. The statement of adjustments as at 21 January 2005 notes that the total deposit paid by that time was $224,000.[56] The documentary evidence does not make clear when or from where that sum was paid other than the $73,900 paid on 13 July 2004. The total deposit left $516,000 owing on the purchase price, with adjustments and penalty interest added to that figure.

46 At settlement on 25 January 2005, $450,000 of borrowed funds were used for the purchase. Those funds were made up of two loans both in the joint names of Richard and Colin (joint purchase borrowings). One loan was for $190,000, the other for $260,000. The repayment of those loans were interest only. The documentary evidence demonstrates that from March 2005 all repayments for both loans were made from accounts in Richard's name in accordance with his instructions.[57] Richard's instructions requested that any payment deducted from Colin's account be reimbursed to Colin. In his evidence, Colin accepted that the documents he had signed showed that on paper he owned 50% through the Moores Road Trust but he said that he was never a half owner because it was 'a three way split'.[58] Colin said he did not borrow any money other than the loan against his own unit which he paid 'upfront',[59] and said he could not remember anything about joint borrowings with Richard. Colin accepted that his memory on these matters was incomplete.[60]

47 Colin's evidence was that the reason settlement was late was because of delays in arranging the finance, which a friend of Richard's was organising.

48 At settlement, the balance owing excluding adjustments and late fees and charges was $516,000.[61] $450,000 of that sum came from the joint purchase borrowings. The source of funds for the balance of the purchase price ($66,000) and the balance of deposit funds ($150,000) together with costs of purchase are not disclosed. Colin's 'up front' contribution would form part of that amount.

49 The value of Colin's contribution is not supported by contemporaneous documents at the time of purchase. His evidence was that he could not recall the amount he contributed but thought it was about $230,000 or $250,000.[62] Kavitha's evidence was that his contribution was a lesser amount of approximately $225,000.[63] His financial contribution is referred to in 2006 documents described below.

50 In addition to the documentary evidence, Kavitha and her mother gave oral evidence about cash contributions by Kavitha's parents. Only Kavitha gave evidence of a cash gift of $20,000 prior to purchase (detailed below), otherwise the evidence as to cash contributions all occurred after settlement.

51 Kavitha said Richard spoke with her mother about how Kavitha's share was to be funded and Kavitha didn't have any discussions with Richard about this.[64]

52 Manjula gave evidence by audio-visual link. Manjula said Kavitha was looking for a farm and was going to buy it with Colin, but he didn't have enough money and later he backed out. Manjula said Kavitha told her Richard would contribute and then 'we work out something'.[65] Manjula thought the first discussion with Kavitha was in February 2005 and her evidence of that conversation was '[t]he time Kavitha was with Richard, and then they wanted to buy the farm, and they bought it.'[66] Manjula's evidence was that Richard and Kavitha would contribute 50% each.[67] She said she understood Richard was to pay Kavitha's share of the farm, because of discussions between Richard and her husband.[68] She did not give any evidence of discussions with Richard about Kavitha's share or payment for Kavitha's share other than to say such discussions occurred between her husband and Richard.

53 Ingrid gave evidence at a de bene esse hearing on 6 November 2020. She said Richard had discussed the circumstances of the purchase of the farm with her. Richard told her he had bought the farm in partnership with Colin who sometime later opted out and Richard borrowed money to buy him out.

54 Kavitha's oral evidence of funds that her parents provided her and Richard is as follows:

(a) Her parents gave $20,000 to her when she and Richard became engaged.[69] Kavitha thought this was within six months after they had met and before the farm was purchased. She said later, once the farm was identified, she told Richard to put these funds towards the purchase. She gave oral evidence that Richard put this $20,000 as a deposit on the farm.[70] She said otherwise she had no discussion with Richard about funding her share of the purchase price, rather those discussions occurred between Richard and her mother. She said she was present on a phone call when her mother said 'whatever funds are there please start pay it and we'll start paying you immediately. Just let us know how much and we'll start sending it in instalments'.[71] It was unclear when Kavitha said this phone call occurred.

(b) '[A]fter we got the farm'[72] she said her parents gave $20,000 in cash to a friend, Dr Chakrabati, to bring to Australia.[73] The friend, who had been a student of Manjula's, lived in country Victoria so Richard and Kavitha drove up to visit him and they were given a white envelope containing hundred dollar bills, which Kavitha said 'looked like 20 grand'.[74]

(c) Kavitha's parents sent contributions from India with their friend Surita Kulkarni. On the first occasion Surita handed Richard a sum of money during a meal at Surita's home. Kavitha first described this as occurring before the farm was purchased, although later her evidence was unequivocal that it was after.[75] Kavitha's evidence was that Surita gave '$10,000 once, 5 once, 10 again',[76] and the amounts were given as part of a loan and repayment arrangement between family members.

(d) Her parents came to Australia after the exchanges with Dr Chakrabati and Surita. Kavitha said her father gave Richard $30,000 that had been in his pockets and a money belt, and her mother gave a further $30,000 to Richard and a further $10,000 for Kavitha who wanted to buy a seeder.[77] This last sum from her mother was a gift to Kavitha from an uncle.[78]

(e) After that occasion her parents didn't travel all the time and other people kept bringing money in.[79] However, her parents came and gave money to her and Richard some three or four times at least during their relationship.[80]

(f) Her parents either brought or sent money to Australia both before her relationship with Richard and continued on after it ended.[81]

(g) Her mother finally transferred altogether over $400,000 including for tractors and repairs.[82]

55 On all occasions, Kavitha said that Richard was told the money was for the farm.

56 In an affidavit sworn 5 March 2019 in support of the application to delay transfer of the farm to Richard's estate, Kavitha said that 'altogether my parents gave Richard $260,000'.[83] In a further affidavit sworn 18 September 2019, Kavitha said she intended to visit India to obtain details of the $260,000 her parents contributed to the farm.[84] In Further and Better Particulars of the Statement of Claim filed 20 December 2019, the amount identified as being contributed by Kavitha's parents (directly or through third parties) totals $175,000.

57 In her evidence-in-chief, Manjula said she learnt of her daughter's relationship with Richard at the end of 2004 and first met him when they came to Australia at the end of 2005.[85] She said she had been to Australia many times and could not remember dates, other than that she did come in 2005 and 2006, again in 2014 when Kavitha was arrested, and in 2017 on her release.

58 Manjula said that she and her husband brought cash into Australia themselves as follows:

(a) They brought money each time they went to Australia.[86]

(b) She recalled coming to Australia once or twice a year between 2005 and 2009 and then again each year from 2014 to 2017 but could not recall specific dates.

(c) She brought $20,000 'at least' for Richard on the first occasion they met him,[87] carried as cash and $5,000 as travel cards. Her husband also brought $20,000.[88] She said the money was given 'for Kavitha's share' of the farm.[89]

(d) On the next occasion they came to Australia she and her husband each carried $20,000 in cash and travel cards, which they gave to Kavitha and Richard.[90]

(e) An occasion in 2009 or 2010 was the third occasion on which they brought $20,000 each in cash and a $10,000 travel card.[91]

(f) Manjula said the amounts were the same every time because that was the maximum amount allowed.[92]

(g) On one occasion they carried $25,000 each and were questioned by Australian customs about the amount carried but that it was allowed.[93]

59 Manjula said that she sent money to Australia through others as follows:

(a) $20,000 through Surita on two occasions in 2006,[94] and $5,000 through Surita's brother in India;[95]

(b) $20,000 cash through Dr Chakrabarti in 2005;[96]

(c) $20,000 in 2006 with Dr Kumar, a student of hers.[97]

60 It was put to Manjula in cross-examination that she did not give more than $10,000 to Dr Chakrabati to bring to Australia. She disagreed and said she understood that he could and did carry $20,000 because he was a resident.[98] Dr Chakrabati's incoming passenger card dated 15 February 2005 was left blank in answer to the relevant question.

61 In cross-examination the particulars of cash amounts that Kavitha filed on her return from India in 2019 were put to Manjula as contradicting the evidence she had given about amounts and timing.

62 The documents showed that Surita did not travel to India in 2004 and that her incoming passenger card of 20 December 2005 declared that she was not bringing in to Australia more than $10,000 cash.[99] It was put to Manjula that this contradicted her evidence-in-chief and the further particulars of claim Kavitha provided in 2019.

63 In cross-examination it was put to Manjula that any cash that was brought from India between 2005 and 2007 was money given to Kavitha as a gift. She agreed it was.[100] In cross-examination it was put to Manjula that other occasions of her providing money did not occur because she was not in Australia between May 2007 and May 2013. She said that maybe they occurred later but that they did give money to Richard.

64 Manjula was taken to the incoming passenger cards she completed on arrival in Australia and in particular the question on that card asking 'Are you bringing into Australia AUD$10,000 or more in Australian or foreign currency?'. She was shown the card for arrival on 11 October 2006, which recorded 'yes' as her answer. She agreed that on that occasion she indicated she was bringing a larger sum. She said sometimes she didn't mark an answer but that she didn't lie, rather she left it blank. She also said there were occasions when she did not answer the form truthfully.[101]

65 Sandeep Nehra gave evidence. He had been introduced to Kavitha in about 2006 by a friend who was staying at the East Bentleigh house. Nehra was a student at the time and he did some deliveries of produce for the farm for Kavitha. He stayed at the East Bentleigh house on three occasions: 2007, 2010 and 2016. He gave evidence of a time in 2010 when he was living at the East Bentleigh house. He was not doing deliveries but he drove Kavitha's parents around during their visit to Melbourne. Nehra said this included driving them to Richard's home and office. He said that on the way to see Richard they stopped and withdrew cash from an ATM or got travellers cheques. He said he observed this once in 2010.[102] He said he helped them withdraw cash from the ATM on one occasion using what he thought were overseas cards and he did not know what was done with the cash.

66 In cross-examination he was not sure whether 2010 was the correct year. It was put to him that Kavitha's parents were not in Australia in 2010. He said the events he described as happening in 2010 could have been in 2011 or 2012.

Practical arrangements at the farm after purchase

67 Both Kavitha and Colin gave evidence that they had access to the farm prior to settlement and commenced working there. Kavitha said they were trialling the shelf life of products as there was no cool room. She said that equipment had to be purchased. Initially Kavitha was still working in childcare between 7.00am and 1.00pm. She said she would then go to the farm and pick and wash produce and make deliveries to customers. She said Colin did the tractor work and the irrigation.

68 Colin's evidence was that from settlement he was living at the farm and was working full-time there between January 2005 and May 2006. During that time he said Kavitha would come to the farm occasionally and would stay there for one or two nights per week.[103] He said Kavitha did less actual farming work than he wished she would have. He said she did some bunching and picking of produce. He said part of the dissatisfaction was that he needed help on the farm and when he asked for help he didn't get it. He said Kavitha was running the farm by issuing directions as to what other people (mostly him) were to do. He had never worked on a farm before and didn't know what he was doing. He said the ongoing dispute with Kavitha was because 'she reckoned I wasn't working hard enough and I reckoned it was impossible to do what she wanted me to do'.[104]

69 Colin said during his time on the farm they grew crops and sold direct to Indian shops. Colin guessed that the sales produced $300-$400 a week at most. He said he was using some of that money to live on and the rest to run the farm. He said that on occasion there were other people who came to assist and Kavitha paid them.

70 Kavitha described attending the farm each day to pick and load produce into the van to make deliveries. She said she always did the deliveries bar one that Colin did. She said she was always paid in cash. She said she did not generate invoices but had a receipt book. She said she used the cash for farm expenses: seeds, diesel, fertiliser, wages. She said she took home whatever cash was left and gave it to Richard, who kept it at his home. She explained that wages were for casual pickers because it was impossible for her to do all the picking. She said sometimes if she had a big expense associated with the farm she would 'call Richard and say "I need some money" so I take it from that. Otherwise it's just there'.[105] Richard's 2014 statement said:

I would for the first 5 years (2004 to 2009) go and stay there most weekends. The farm produced vegetables and herbs. It was never overly profitable. Over the years I purchased two tractors and other plant and equipment for the Farm. It became apparent to me that KG was not as good a farm manager as she made out and the farm was an ongoing financial burden to me. I have made the mortgage repayments and met most of the rates and outgoings payments for the Farm.[106]

71 Kavitha described expanding into boxed vegetables and selling at the Footscray Market where she was trading both product grown on the farm and other product that she purchased. She said that in order to trade at the Footscray Market she had to have a card. She said her card was in the name of Clyde Market Gardens. Kavitha said that she had never seen any registration papers and other than a change in name it made no difference to the way Kavitha went about her business. Clyde Market Gardens Pty Ltd was incorporated on 28 June 2005. Richard was director, secretary and shareholder of the company until his death.

72 Richard's 2014 statement made reference to a three-year period in which they leased a shop to sell produce from the farm. Richard paid the rent for the shop. No further evidence was adduced about this arrangement.

73 Some financial documents are available from Clyde Market Gardens Pty Ltd. For the financial year ending 30 June 2006, relevantly, revenue was $29,423 and total expenses were $43,523.[107] There is no other financial material available relating to Colin's time at the farm.

74 Kavitha thought Colin didn't do enough work.[108] Kavitha said in the beginning, when there wasn't a lot of money, she was paying for everything and there wasn't much left for profit sharing or a wage, with Colin complaining about how little cash he had to live. She said that in the first six months she was also paying his mortgage on the Cheltenham unit from her job at the childcare centre. Over time as the farm got busier Kavitha said she was getting sicker and she asked Colin to take over some deliveries, which he did not do. Kavitha said if he had taken over between three to five deliveries he could have had $300-$400 a week, '[b]ut he just doesn't want to do that'.[109]

75 Over time Colin and Kavitha had a falling out. It came to a head in an argument over the automated irrigation. This seemed to be the last straw and led to a big argument between them. Colin then wanted to get out of the farm. Colin engaged lawyers to act on his behalf in selling his interest in the farm to Richard. Kavitha said she told Richard that Colin wanted out and Richard handled all of those negotiations.

76 Although Colin couldn't recall the exact figure, he said that Richard paid him out the same amount that Colin had originally put in. Colin believed this to be in the order of $250,000 or $260,000.[110]

77 Colin was taken to the deed of retirement of trustee dated 18 May 2006.[111] It records that Richard and Colin were each registered as proprietors of the farm as tenants in common in two equal shares and held the farm as trustees of the Moores Rd Trust. According to the deed of retirement Colin and Richard each contributed $170,000 and borrowed the balance of their respective contributions. The document states that in consideration of the assumption of outstanding debt of $225,000 by Richard and Richard's payment to Colin of $175,000, Colin would transfer his units in the Moores Rd Trust to Richard. Colin accepted the accuracy of these documents but said that he had never been paying off the joint purchase borrowings.

78 Colin said he thought he received more than $175,000 because he said he 'got enough out to pay $230,000 cash for my house'.[112] In cross-examination when shown documents from the sale of his unit in Cheltenham and the subsequent purchase of his house, Colin agreed that it could be that the funds used for the purchase were $175,000 that Richard paid him and additional cash reserves from the sale of his unit. However, even with these documents to help his memory, he still couldn't recall how much he originally contributed to the farm purchase price.

79 In his letter, on Richard's instructions referred to above at [43], Allan Sheppet also wrote:

As discussed, Richard was concerned to ensure that Colin was not liable for capital gains tax and instructed our office to meet with the Trust's accountant Michael Carley of JCW Consulting. Michael Carley has recommended that he should prepare accounting returns for the Unit Trust prior to the matter proceeding so that he can provide us with advice on the appropriate consideration that should be inserted in the Transfer of Units. No doubt this will reflect that Colin has a loan account with the Unit Trust in the sum of $170,000 and it is anticipated that the consideration will be $5,000.

We believe the above accurately reflects our client's instructions and the most appropriate way in which we have advised our client to proceed to settlement.[113]

80 On the transfer of title from Colin to Richard, Richard swore a statutory declaration as to the transfer of title. He identified himself and Colin as the beneficial owners of the units in the trust as at the date of transfer and sets out the circumstances of Colin's retirement as trustee. The statutory declaration confirmed that the retiring trustee (Colin) paid the duty at the time of purchase and that no monetary consideration has been paid for the transfer of land. It exhibits the deed of retirement dated 18 May 2006 confirming that Colin and Richard each contributed $170,000 to the purchase price and borrowed the balance of their respective contributions. The deed of retirement recites that Colin and Richard are directors of MAGIC Pty Ltd, which carried on a market garden farming business from the farm. The deed of retirement references irreconcilable difference in MAGIC Pty Ltd, the farm business and the trust.[114]

81 The deed of retirement required Richard to pay $400,000 in total: $175,000 to Colin and $225,000 as assumption of Colin's share of their joint purchase borrowings of $450,000. The financial records show that on 29 May 2006 Richard obtained a new loan from Westpac in the sum of $566,000,[115] and drew on his existing Westpac bank facilities for an additional $67,174.[116] On 29 May 2006, Richard settled the refinance of the farm paying out the joint purchase borrowings at $458,174.14,[117] leaving $175,000 available.

82 Shortly after Colin had been paid out, Kavitha said she had a conversation with Richard:

Richard - after it was all settled, Richard said 'You know what? I gave him a lot of extra cash, so he won't come back and whinge'. I said 'Oh really? How much? Why did you? You should have just given him what he - you look at the disruption, you should have given me the money' and Richard said, 'No, no, let him take it and go'. And he says it's just us now, I said, 'Thank god I can work in peace'.[118]

83 After Colin left the farm Kavitha had help from a number of people who took over the work Colin had been doing. Some of those people were young men who had been living at the East Bentleigh house. She paid cash for their wages. After some time the three Azemi brothers - Bekim, Fidan and Agron - also came to work at the farm at first for wages.

84 Kavitha said the enterprise remained a cash business and cash received was used to pay the workers and equipment. The arrangement of giving excess cash to Richard and taking it back as needed also continued.[119] Kavitha said once Colin had left she engaged three tractor drivers instead of having one, which led to an increase in the number of customers. She said this growth continued until her health took a quite dramatic turn for the worse, as detailed below.

85 To the extent that there are financial records of the business at the farm in this period, they are partially revealed by the financial documents of Clyde Market Gardens. The income statement for the year ended 30 June 2007 shows a loss before income tax of $57,374 which, when accumulated with losses from 2006 (also stated in the 2007 income statement), became a loss of $110,043.[120] Revenue for 2007 was $98,613. By 2008 income had fallen to $44,285 and accumulated losses risen to $151,652.[121] In 2009 and 2010 income fell again and accumulated losses rose. The 2010 financial documents show accumulated losses of $160,662.[122] The balance sheet discloses loans from R Phillips to the company totalling $167,676.[123]

86 Kavitha said she learnt in 2008 or 2009 that the local council was proposing a rezoning of land. Kavitha said this was after she and Richard had paid off the farm.[124] However, the Westpac loan Richard took out to refinance the farm shows that in mid-2010 the loan balance was approximately $369,000 and that this loan was not fully repaid until 2015.[125] The farm was eventually rezoned in 2010,[126] and Kavitha's evidence was that she had many conversations with Richard about the rezoning. She said the rezoning was 'why I bought that land'.[127]

87 In evidence-in-chief, when asked about what they planned to do with the farm after rezoning, Kavitha gave many examples - using it for an animal hospice, opening a restaurant, perhaps buying a neighbouring property, or building a large importing warehouse. After a great many questions about her intentions after rezoning, Kavitha eventually gave evidence of a conversation saying she and Richard celebrated when the news came through, during which she said 'we're rich' and Richard replied 'I'm already Rich, now we are rich'.[128] Kavitha explained that Richard's mother called him Rich.[129] She said with the rezoning it goes up in value three times on the spot.[130]

88 In cross-examination Kavitha was asked about this immediate increase in value. She contradicted this evidence saying rezoning takes a four-to-five year period, or even up to ten years for an increase in value to come about.[131]

From about mid 2010 I had begun to form the view that the relationship between KG and I was very empty and had no real future. I was visiting the farm less and less as the financial burden on me was great and I need to work to pay off debt. KG had cost me a lot of money (the Farm, and a shop in East Bentleigh that never made money and I covered the rent for 3 years) as the Farm never produced to its potential. I grew to hate it. ... At this time I might see KG twice a week at best although we did speak on the phone on a daily basis.[132]

During 2010 the Farm was placed in the Urban Growth Zone and this had an advantageous effect on its value. Thus, retaining the farm became attractive.

91 Kavitha and David Lightowler gave evidence about various contributions Kavitha made to the farm by paying expenses for improvement and maintenance work.

92 Kavitha gave evidence that she spent $5,000 on drainage work every two years that Lightowler performed. Lightowler gave evidence that he could recall only three visits to the farm for drainage work totalling $15,000, and agreed most of those visits would have been after July 2012.[133]

93 Kavitha gave evidence that a shed was partially constructed on the farm in 2008 or 2009, toilet and showering amenities were built for farm workers, and a double garage was converted into sleeping quarters for workers, at a total estimated cost of $12,000-$15,000.[134] She did not give evidence about how these works were paid for.

94 Kavitha stated that she did works on the driveway every year to three years, spending $5,000 to $6,000 yearly or $13,000 every three years. She said she used Lightowler for these works. Lightowler did not keep records. He estimated that he received $5,000 for driveway repairs, some of which may have been before July 2012.[135] He also recalled digging a trench along the driveway.

95 Lightowler said that he also received $5,000 for the supply of crushed work for an unstated purpose,[136] though the date of this payment is not known.

96 In cross-examination Lightowler agreed that the trench along the driveway was done on Bekim's instructions, not Kavitha's. He clarified that $15,000 was his estimate of the total for the three occasions he carried out drainage works.

97 Kavitha tendered a number of receipts covering dates between 29 April 2011 and 26 July 2019.[137] Many of the receipts are made out to Clyde Market Gardens. Others reference a cash sale with no payee identified. They include a quote for finance for the purchase of a John Deere tractor with an estimated funding date of 8 November 2012 in the sum of $60,800. Kavitha also tendered an AGL account statement in her name for supply of electricity to the farm for supply for the period 24 October 2018 to 29 August 2019. An amount of just over $1,000 was written off on the account as a bad debt in March 2020.[138]

98 Kavitha gave evidence about the various health troubles that she has had since 2003.

99 She described memory problems and described suffering from PTSD.[139] She said this was associated with a bout of depression when Chipperton died, returned when her dog died, and that over time her poor physical health has impacted her mental health. She said her memory of events comes and goes. Things that she said she could not recall during her evidence, she said might be recalled by her at a later time.

100 Kavitha said she suffered from adenomyosis, endometriosis and fibroids. She had an operation in 2004 for fibroids following which she said her symptoms were worse for some months.[140] She eventually had a hysterectomy in December 2011[141] and said in the two years prior to this her health had been deteriorating. She said she was very sick from the end of 2009 and bedridden for some months in 2010. After the surgery Kavitha returned to the East Bentleigh house to recuperate but as the house was rented, she lived in a garage at the rear. She said that significant mental health issues returned at this time with great intensity.

101 Four or five weeks after her hysterectomy she returned to the farm. She said the Azemi brothers had been running the farm in her absence.[142] On her return she found a lot of damage, unpaid bills and lots of wear and tear. She said 'I expected the boys to fix it, they didn't but later they paid me all the money for it'.[143]

102 She said she contracted a bad bout of pneumonia in mid-2012 and was admitted to hospital.[144]

103 Returning to the settlement of the Chipperton estate proceedings in 2011 discussed above at [22], Kavitha needed to borrow funds to meet the settlement agreement (the Chipperton settlement loan).

The litigation concerning No 230 [East Bentleigh house] and the estate of Mr Chipperton was not resolved until 2011. In order for KG to get the title to No 230, $750,000 was needed to pay out Mr Chipperton's daughters, legal costs and other associated expenses. $750,000 was borrowed from Westpac Account No xxx418. At the time equity in No 230 was insufficient. I therefore became a co-borrower with KG on the loan and the Farm was put up as collateral security for the loan. On settlement, KG was registered as to sole proprietor of No 230. The loan was interest only for 3 years, and reverted to principal and interest in about August 2014. I have personally paid about $76,000 in interest repayments over that 3 year period. KG did not have the means to pay the mortgage. I believed she was living off renting out East Bentleigh to Indian students and from whatever she made on crops grown on the Farm. Occasionally KG's parents would send funds from India.[145]

105 On 24 March 2015 Richard swore an affidavit (the 2015 affidavit) exhibiting the Westpac documents relating to the Chipperton settlement loan.[146] He set out amounts he paid and money that Kavitha or her parents contributed to the loan from inception to December 2014. He swore that he paid $77,600, and Kavitha or her parents paid $73,544.36. He further deposed that the bank statements show:

a) Deposits into the account made directly from India by [Kavitha's] parents or other person or persons on their behalf;

b) Withdrawals from the account from time to time. These were made when the account was ahead of itself and were made for [Kavitha] at her request. She informed me and I believed that such withdrawals were made for the purpose of paying for materials or labour for the farm at 134 Moore's Rd, Clyde, or for carrying out repairs and improvement to No 230.

c) That despite my relationship with [Kavitha] coming to an end in June 2012, I still made repayments on the mortgage. This was because I was a co-borrower with [Kavitha] and so liable to Westpac. I did not want the loan to go into default and risk a bad credit rating. Despite my ending our relationship, [Kavitha] continually promised me that she would obtain money from India so that the loan on No 230 could be paid off, and she would then negotiate a purchase of the Farm from me at a price to be agreed, again using money from India.[147]

106 Manjula agreed in cross-examination that in 2011 as a result of the settlement of the Chipperton estate, Kavitha had to find $750,000. She accepted that from this time the priority was to repay that debt.[148]

107 As to payments that Kavitha's parents made after December 2014, an undated document headed 'Kavitha Money' records funds sent from India or deposited in Australia between May 2015 and July 2017 together with the dispersal of those funds.[149] Associated with the 'Kavitha Money' document are various bank remittance documents and payments summaries that correspond with some of the deposits and withdrawals to that extent it can be inferred that funds were deposited in Richard's Westpac savings account. On settlement of the East Bentleigh house in October 2015, the Chipperton settlement loan balance of approximately $687,900 was paid out.

108 After July 2017 no further deposits were recorded in the Kavitha money document and the balance of funds was disbursed for legal fees and to individuals. The document ended with funds of $30,097.33 remaining. There was no evidence about what happened to the balance of the funds remaining at the end of the document.

109 In mid-2012 Richard and Kavitha's relationship ended.

110 A number of pieces of evidence went to the reasons for the relationship breakdown. Kavitha said after the hysterectomy she was totally lost and attributes the relationship breakdown to effects of her health problems.[150] Richard's evidence in the 2014 statement was that he had, from 2010 onwards, been coming to a view that the relationship had no real future. He said:

In June 2012 I formally ended my relationship with KG when I found out that she had received a suspended prison sentence for trafficking cannabis at a time during our relationship. I had no idea of this until I was told by a colleague who had been defending KG on a charge of possession of a 'joint'.[151]

111 At the time the relationship ended, in addition to the farm being security for the Chipperton settlement loan of $750,000, the 2006 refinancing of the farm by Richard had an outstanding amount of approximately $253,000.

112 In examination-in-chief Kavitha said initially there was no discussion until later about what was to happen to the farm on ending the relationship. She thought it was after a number of other unrelated events that she identified in 2013 or 2014. Immediately after that lengthy answer she said that she and Richard discussed the farm within a few days of their breakup. Kavitha said Richard said to her 'give me a million dollars and you can go. Take the farm and go'.[152] On resuming her evidence the next morning she said there was no discussion about staying on the farm after separation because it 'was a given' that she would stay on there.[153] She said sometime in June or July of that year Richard called her and they met. She said Richard proposed Kavitha keep the East Bentleigh house, he keep his own home, and Kavitha pay him $1 million to cover what he had spent purchasing the farm and for losses on the shop.[154] Kavitha spoke to her mother who said to her 'What another million dollars after paying all this money?'[155] Kavitha said to her parents 'just pay it and finish'. Kavitha said her parents came at the end of that year and when they saw the state of the house, which students had left in a poor state, they wanted to fix the East Bentleigh house first and then take Kavitha back to India in early 2013. The farm was to be settled after all that had happened.

113 In cross-examination Kavitha said that in 2012 there was no valuation of the farm. It was put to her that there was no agreement in 2012 to transfer the farm for $1 million. She said that there was such an agreement.

114 Richard's 2015 affidavit described the situation after the relationship ended in this way:

Despite my ending our relationship, KG continually promised me that she would obtain money from India so that the loan on No 230 could be paid off, and she would then negotiate a purchase of the Farm from me at a price to be agreed, again using money from India. To this end I agreed to let KG continue to grow crops and manage the farm and stay at the house as and when required. This is the basis on which I let KG use the farm and the house from mid 2012 until November 2014. I expressly forbade her from letting anyone else stay in the house without my express permission.[156]

115 Kavitha's parents came to Australia in November 2012. Her father stayed only a short time but her mother stayed longer - into early 2013 - to support Kavitha because of her poor health. Kavitha described discussion between her father and Richard to the effect that the East Bentleigh house needed to be fixed up before they could settle the farm.

116 Manjula agreed that in 2012 when Richard and Kavitha separated she and her husband intended that they would help repay the debt incurred to settle the Chipperton proceedings as a priority.

117 In cross-examination, it was put to Kavitha that on separation in 2012 she had promised to obtain money from India to pay out the Chipperton settlement loan. She agreed with this. It was put to her that once that had occurred she had promised she would negotiate to purchase the farm. She disagreed with this, saying her parents and Richard had already agreed about the farm. She agreed that nearly all the money was still owing on the Chipperton settlement loan in 2014 but said there had been a lot of problems that explained why the money had not been sent. She said that in November 2014, her mother was coming to Australia to pay the 10% deposit for the farm.[157] She said there was no agreement to negotiate a sale of the farm because the papers were already settled.[158]

118 Kavitha was asked about the conversation shortly after separation in 2012 when Richard asked for $1 million to transfer the farm to her. She said this was an agreement done in accordance with 'what we agreed when we bought the farm'.[159] She said her agreement with Richard in 2012 also reflected the earlier statement by her parents at the time of purchase: 'tell us how much the farm cost and slowly we will pay all of it up'.[160]

119 Manjula was asked about discussions with Richard in 2012 concerning the farm. She said she did not have any conversation with Richard following the end of his relationship with Kavitha, but that she simply understood they were continuing to send money to Richard and once money was all paid the farm would be Kavitha's.[161] Manjula did not distinguish between funds sent to the Chipperton settlement loan, funds to purchase the restrained East Bentleigh house, and funds towards the purchase of the farm.

120 Kavitha said she spent all of 2013 at the farm and there were others there who were working for her.

121 In 2014 the Azemi brothers returned to work the farm again. Kavitha said they paid her some money for the previous bills and damage that had been left there. Kavitha returned to India in May 2014. She stayed there about three weeks. She said that on her return she did not discuss buying the farm with Richard because she had spoken about it with her parents earlier and it was all arranged.

122 Beckim gave evidence that he first met Kavitha in 2007 or 2008 at the farm and worked there part time doing farming work with his brother and other workers. Later Beckim also set up his own business doing market gardening.

123 Beckim said he met Richard once a long time ago and on that occasion had asked if he could buy the farm. Beckim said Richard replied saying 'ask Kavitha, the farm belongs to Kavitha'.[162] Beckim said that while Kavitha was in prison, Richard put the farm on the market and he tried to buy it but his offer was rejected. He said that while Kavitha was in prison he would talk with Richard who told him he should keep working the farm, pay the bills and keep it clean and tidy.

124 In cross-examination, Beckim agreed that the change from hourly wages to a share cropping agreement occurred in about 2010 or 2011 when Kavitha got sick. From that time onwards he was sharecropping the whole of the farm until there was a court case about the payment of rent. At that time he stopped cropping on the farm. He was asked whether from 2011 onwards Kavitha did any cropping on the farm. He said he couldn't remember exactly but at some unknown time she sent a person called Lali[163] to do cropping work. He could not say how much time Kavitha spent at the farm as he did not go into the house there. He said he knew the farm belonged to Richard and Kavitha but that he didn't pay Richard anything. He said that he would pay some money to Kavitha for the use of the farm contributing to bills.

125 Beckim agreed that Richard came to the farm once with his wife Ingrid and handed him a piece of paper. It was put to him that at this time Richard said Beckim should be paying rent to Richard and not Kavitha. Beckim denied that he was asked to pay rent to Richard and said he never paid rent to Kavitha.[164]

126 Beckim confirmed in re-examination that some of the crops he planted were given to Kavitha and said she got most of the money from the crops he planted.[165]

127 In October 2014 Kavitha was arrested on drug charges. Those charges related to possession, cultivation and trafficking of cannabis at both the farm and the East Bentleigh house.

128 Kavitha was refused bail and she remained imprisoned until May 2017.

129 As a result of the criminal charges against Kavitha, her interest in the East Bentleigh house and the Chipperton settlement loan were restrained under the Confiscation Act 1997 (Vic) (the confiscation proceeding). Richard's 2014 statement was a police statement and his 2015 affidavit were both created in the context of the criminal and confiscation proceeding. The 2014 statement said of the ongoing payments for the Chipperton settlement loan:

KG's [Kavitha's] parents have from time to time remitted funds to the mortgage account to cover mortgage repayments and to provide some funds for KG to draw upon if required. Since KG was arrested, funds have been deposited into this account from her parents in India to cover ongoing mortgage payments and legal fees.[166]

130 According to Richard, repayments of the Chipperton settlement loan were made by Richard (totalling $77,600), Kavitha (totalling $49,371.31) and money received from her parents in India (totalling $28,030.05).[167] Some funds were redrawn. By March 2015 the loan balance was $711,314.52. Deposits by Kavitha's parents prior to the account being restrained are variously described as a gift for Kavitha or for Kavitha to meet various expenses.

131 Richard made an application to exclude his interest in the Chipperton settlement loan and the East Bentleigh house on the basis of his financial contributions.

132 In September 2015, in resolution of the confiscation proceeding, Kavitha's parents prevented forfeiture of the East Bentleigh house by purchasing it for the sum of $1 million.[168] They deposited money with Richard for this purpose. The purchase price paid out the balance of the Chipperton settlement loan. Kavitha forfeited the equity she held in the East Bentleigh house in the sum of $206,765.88 to the Department of Justice[169] After settlement Richard's account held funds from Kavitha's parents of $112,255.57 as at 19 October 2015.[170]

133 Manjula agreed that when Kavitha was arrested and the East Bentleigh house restrained, they then needed to find an amount of $1 million to purchase the house so it wasn't lost.

134 As to Kavitha's evidence that in 2014, when she was arrested, her mother was coming to Australia to pay a 10% deposit for the farm pursuant to an existing agreement, Manjula gave no evidence of such intention. She said only that when she came to Australia when Kavitha was arrested she didn't discuss anything with Richard.[171]

135 Nehra also gave evidence of an occasion while Kavitha was in prison when her parents came to Melbourne and again he drove them around. He said he took the parents to the prison, to the city to see Richard and to see Kavitha's lawyer. He said the parents took money with them but did not know if it was for Richard or for Kavitha's lawyer.

136 Kavitha's evidence was that while she was in prison between 2014 and 2017 the farm was being run by others on her instructions. She said when she was released the farm was in an 'appalling' condition: pumps were broken, tractors wrecked, weeds were everywhere. She said it cost her thousands to clean up. Kavitha said her parents sent money while she was in prison for repairs to both the farm and the East Bentleigh house and she would speak with Richard about the release of those funds. Richard also recorded these payments in the document headed 'Kavitha money.'[172]

137 Kavitha said that while in prison, probably at the end of 2014, Richard informed her he had an offer for the farm of $1 million. Kavitha said she threatened to kill herself if he did that so Richard agreed to take it off the market,[173] though later in her evidence she said she had not made such a threat.[174]

138 Richard's 2014 statement is silent about this exchange.

139 Manjula gave evidence that Kavitha told her in prison that Richard planned to sell the farm. Manjula said she told Richard he couldn't do that as 'our money is with you' and that he needed to wait for Kavitha's release to settle the matter. Richard said he would wait.[175] Manjula said this was a conversation with Richard in his office in 2015. In cross-examination it was put to her that the immigration documents showed she was not in Australia that year and such a meeting did not occur.

140 Kavitha gave evidence of a second conversation with Richard about selling the farm while she was in prison. She said Richard had told her of an offer of $3 million to which she responded that she would offer $3.2 million. Kavitha's parents engaged a solicitor, Robert Sdraulig, to act on their behalf in the purchase. Kavitha wrote a letter to Richard dated 19 October 2015 that said:

We are willing to sign the contract today for you agreed amount $3.2 mil 10% deposit now, 120 days settlement. ... my mom will sign it and send it back today and you can receive a copy straight away. 120 days as my trial will be finished.[176]

141 Richard emailed Kavitha's parents on 19 October 2015 saying he had been informed that they had agreed to purchase the farm. He wrote:

I am prepared to deal with you only on the following terms, as I was due to sign a contract tomorrow to sell the farm to another buyer:

1. The price is $3.2 million.

2. A deposit of 10% of the price is to be paid to my solicitor's trust account forthwith... as the law in Victoria requires this.

3. The balance of the price, $2,800,000.00 is payable on 19 February 2016.

4. The contract is unconditional.[177]

142 Kavitha's father sent an email to Richard in response the same day. The response records that Kavitha's parents were waiting on Foreign Investment Review Board (FIRB) permission which will take some time, that the deposit will be paid to Richard's personal account and that matters 'will be settled after the trial only'.[178] In turn Richard forwarded the exchange to his solicitor Alan Sheppet, instructing him to prepare a contract of sale to Kavitha's parents. Richard would send the contract to Kavitha's parents noting 'I want to put the India deal to bed as quickly as I can because this is too good to let go.'[179]

143 On 20 October 2015 Richard sent to Kavitha's parents a contract of sale and associated information that a vendor was required to provide. He asked them to return and sign three copies of the contract and the Vendor Statement. He asked them to send the 10% deposit for the $3.2 million sale price to Sheppet to be held in his trust account.[180]

144 In responding to information that FIRB requested, in November 2015 Richard described the informal arrangement with Beckim on the farm as being that 'he grows crops and keeps the place tidy', pays $1500 a month plus water and other outgoings, although Richard notes he had not insisted on payment. He said that Kavitha initially set up the arrangement.[181]

145 Kavitha's parents returned a signed contract but with a changed settlement date, extending settlement to June 2016.[182] As at the end of 2015 Kavitha was due in court for a plea hearing on 15 March 2016. However, Kavitha wished to withdraw her guilty plea and this delayed the eventual resolution of her criminal proceeding until 2017.

146 Manjula's evidence was that she signed the contract to stop the sale of the farm and that Richard had agreed they would cancel the contract when Kavitha was released.[183] On 3 December 2015, Richard emailed to Kavitha's parents confirming that his solicitor was preparing a new contract was with the revised settlement date of 30 June 2016. The email refers to a joint ANZ account newly opened in the names of Kavitha and Richard (the ANZ joint account). The purpose of the account was for payment of the deposit of $320,000 pursuant to the revised contract. He requested that Kavitha's parents return the signed contract as soon as possible and pay the deposit of $320,000 no later than 11 December 2015.[184]

147 Manjula gave evidence that they were sent a contract of sale of the land that they signed in March 2016 and sent it back. She said they signed it to stop the sale to anyone else and intended on cancelling it when Kavitha 'comes back'.[185]

148 On 4 December 2015 FIRB confirmed there was no restriction on the purchase.[186] By 4 February 2016, neither Richard nor his solicitor had received a signed contract, although Richard wrote that $20,000 arrived in his cheque account.[187]

149 Kavitha's parents made various deposits into the ANZ joint account between March 2016 and 1 September 2017 totalling $141,972.94.[188] After the meeting on 1 September 2017, discussed below, they made a further three deposits totalling $30,242, the last in January 2018.[189]

150 Ingrid said she was aware of two occasions where there were discussions between Richard, Kavitha and Kavitha's parents about selling the farm to them. She was unsure of dates. She said on one occasion Richard acquired a valuation and engaged Sheppet to prepare legal documents for a sale. She said there was a meeting after which a contract would be drawn up for either $3.1 or $3.2 million and sent to India for Kavitha's parents to sign. She said Richard told her the sale did not proceed.[190]

151 Ingrid said the second occasion was on Kavitha's release from jail, where there was to be a meeting to re-establish a conversation about the purchase of the farm. She understood that Richard obtained another valuation of between $4.2 and $4.6 million at that time in preparation. Richard told her that Kavitha and her parents were not happy about that valuation and wished to get another independent valuation.[191] After that, Richard told her there had been no further communication.

152 Ingrid also gave evidence of attending the farm once with Richard in July 2015. She said Richard wanted to meet the people using the farm (the Azemi family) and he handed them a licence agreement to pay rent. She said the Azemi brothers told Richard they had a share cropping arrangement with Kavitha and paid her a percentage of the value of the crop. They agreed a rental amount with Richard under a licence agreement but Richard later told Ingrid that they did not make any payments.[192]

153 When Kavitha was released from prison in May 2017, she had discussions with her parents about coming to Australia and making arrangements for the acquisition of the farm. Her parents had not sent a signed contract to Richard in response to the copies emailed on 3 December 2015. She said she had spoken with Richard before her parents arrived about the purchase of the farm. She said she told Richard that $3.2 million was 'steep'.[193]

154 A meeting was held at the office of Alan Sheppet & Associates on 1 September 2017. Present were Richard and Sheppet, Kavitha, her parents and Sdraulig. The witnesses who gave evidence of the 1 September meeting have conflicting recollections of what occurred on and subsequent to that day.

155 Sheppet gave oral evidence and his contemporaneous file note as to the events in the 1 September 2017 meeting was also in evidence.[194] From his recollection, Sheppet said the purpose of the meeting was to see whether the unsuccessful sale in 2015 could be revived. He said Sdraulig had reviewed the 2015 documents and concluded there was no binding contract from that time. Sheppet told the meeting that since 2015 the farm had increased in price. A current valuation put the value at more than $4 million. He said Kavitha gave an impassioned plea as to the effort and work she had put into the farm, and Richard then said in the meeting:

I've paid for the farm, I've paid 100% for the farm. I've serviced the debt. I want it sold.[195]

156 Sheppet said the meeting was quite tense by that time. The meeting broke up and Sdraulig met separately with his clients for about 30 minutes, at the end of which Sdraulig conveyed his instruction that they wanted time to obtain a valuation.

157 By reference to his file note Sheppet also said there was no point signing a contract if Kavitha's parents did not have capacity to pay the deposit. He said Kavitha mentioned other work she had done at the farm, giving the examples of fixing a driveway and a power supply line. He said he recalled that Kavitha did not agree Richard had the right to sell it.[196]

158 Kavitha said prior to the meeting she had a conversation with Richard and said the price of $3.2 million was steep.[197] Kavitha's evidence was the purpose of the meeting was to renegotiate the price of the farm.[198] She said her parents did not make an offer to buy the farm, rather they said they were not going to pay $3.2 million but that they were willing to meet again soon.[199] Kavitha had no recollection of a figure of $4 million being mentioned and hadn't ever heard it mentioned.[200] There was no outcome to the 1 September meeting. She said her parents told Richard first they had paid about $400,000. Kavitha said to Richard:

We've already paid the house off. We'll give you another million dollars. Because initially it was agreed upon as a million dollars to pay off the loan on East Boundary Rd and the losses on the shop. ...

Then Kavitha recanted and said this was not said on 1 September, rather on that day her parents simply said '$3.2 million was no good. We are not going to pay 3.2 but we'll meet soon.'

159 In cross-examination it was put to Kavitha that at the meeting on 1 September 2017, her parents did not say that they would not pay $3.2 million for the farm. It was put to her that what was said at the meeting was that a figure of about $4 million would be required and the meeting was adjourned so that Kavitha and her parents could obtain their own valuation. Kavitha said she couldn't remember this but did recall something about a valuation. It was further put that her parents did not make the statements she described in her evidence-in-chief - an offer of a further $1 million dollars on top of the money to pay out the East Bentleigh house and the statement of contributions to the farm purchase to that time of $400,000. She disagreed and said that this was 'exactly' what they all said.[201] She said her parents did dishonour the agreement for $3.2 million.

160 Manjula initially gave evidence that there were two meetings with Richard, and that the first meeting occurred at Richard's lawyer's office She said that at this meeting Richard promised them he could sell the farm for $1.2 million and they agreed that they would return to India and start sending money and that Richard would sign the contract for sale at $1.2 million.[202] Manjula said this was the only discussion with Richard about $1.2 million dollars and Kavitha was present.

161 Later in her evidence, Manjula said that they returned to India after two meetings with Richard. She gave evidence that the second meeting was also held at Richard's lawyers office but the lawyer was not present. Otherwise those attending were the same. Manjula Kavitha's parents, Sdraulig and Richard were the meeting where Richard said he wanted $1.2 million and then Kavitha's parents went to the airport.[203]

162 When asked about Richard's statement to the meeting on 1 September that the farm was bought 100% using his money, Manjula agreed Richard said this but disagreed that it was true. Manjula said she did tell Richard 'my money is with you' at some point.

163 The evidence as to what subsequently occurred is also conflicting. Sheppet taken to a letter he had emailed to Sdraulig on 18 September 2017. That letter included the following:

I refer to our 1 September 2017 meeting and confirm the meeting was called to determine once and for all whether or not your clients can proceed with an unconditional contract of sale at the current market price. The meeting was adjourned to allow your clients to obtain a market appraisal of the property to determine its current value. My recollection was that Kavitha said a valuation could be arranged within a week.

As you are aware, it was made clear to your clients that Richard Phillips is keen to sell the property without further delays.

Please advise whether your client purchasers are in a position to proceed on an unconditional basis or not, and at what price and terms.[204]

164 Sheppet said the purpose of the letter was to confirm the content of the 1 September meeting and to confirm that the 'ball's in their court'. He said he received no substantive communication prior to Richard's death.

165 Kavitha said that nothing was decided at the 1 September meeting other than that there would be another meeting between Richard and her parents. After that she said there were three further meetings between Richard and her parents before they left for India on 6 September 2017. Kavitha said she did not attend these meetings but gave evidence. Richard told her he had reached agreement with her parents that they would pay him $1.2 million for the farm. She said that her parents told Richard that they had already paid about $400,000 to Richard as well as buying the East Boundary house, and so thought $3.2 million was too much money. Her parents told her that they would offer Richard $1 million for the farm because that was the figure originally agreed, and because they had already paid $1 million to pay off the East Bentleigh house. Kavitha's memory was that her parents offered $1 million to Richard, and he added $200,000 for the losses on the shop. She said that Richard and her parents agreed on this. She said her understanding was this was based on there being an adjustment for $400,000 already paid, and her parents were to start sending the additional $800,000 so the settlement could happen in February 2018.[205]

166 Kavitha said that there was a delay in sending money after September 2017 because Manjula's sister had a stroke. Kavitha said some money was paid into the ANZ joint account. She said it was agreed that they would settle the farm by her birthday. She said money sent to the joint account was not to be touched because it was for the farm.

167 Kavitha also gave evidence that she had a conversation with Richard in December 2017. She said they did not discuss the farm or the agreement that had been reached between Richard and her parents at this time.[206]

168 Kavitha was shown correspondence between Sdraulig and Sheppet in mid-October 2017 confirming that the purpose of adjourning the 1 September 2017 meeting was to allow Kavitha and her parents to obtain a valuation. Sdraulig's response was that he had been unable to contact his clients. It was put to Kavitha that her evidence of events subsequent to 1 September 2017 meeting was deliberately untrue. Kavitha said that her evidence about her parents and Richard agreeing to a sum of $1 million or $1.2 million was not a lie.[207] She said she had given no instructions to Sdraulig before February 2018 about the funds advanced since September 2017 or about a proposed contract of sale of the farm. She could not say if her parents communicated with Sdraulig during this time. She said she was panicked when she received the funds back from the joint account after Richard's death as she had not authorised it nor wanted the money back.

169 Kavitha said she was certain that the ANZ joint account, opened while she was in prison, was an account purely for the farm.[208] Manjula confirmed that she transferred money in October and December 2017 and January 2018 into the ANZ joint account.

170 Manjula said she anticipated coming to Australia in February 2018 to 'decide about the farm'.[209] She said Richard had not signed papers for the farm to be transferred to Kavitha and was to do so in February 2018, and that then they would pay the remaining money.[210]

171 In cross-examination, Sheppet agreed that over time Richard had become a friend as well as a client. He said this did not change the nature of his advice to Richard and that Richard took his advice. Sheppet said he advised Richard to obtain an updated valuation for the farm prior to the meeting on 1 September 2017 and this occurred.

172 Sheppet said he understood Richard and Kavitha had previously been in a relationship. He agreed he'd done the legal work for Richard buying out Colin's interest in 2006. It was put to him that Richard's comment that he paid all of the purchase price was because it was suggested in the meeting that the parents had made a contribution to the purchase. He disagreed and said that didn't happen.

173 The email sent on 18 September concluded with the instruction that all future correspondence between the Gurappaji family and Richard were to come through Sheppet's office. It was put to him that this was because Richard had told him there had in fact been direct communication after the meeting. Sheppet disagreed with this.

174 The applicable law and the principles to be applied to the facts are not in controversy.

Common intention constructive trust / Proprietary estoppel

175 A common intention constructive trust is construed or constructed by a court to give effect to the common intent of the parties. Although described as a 'constructive trust', it is a trust based upon an actual common intent of the parties and is not in substance one imposed upon the parties.[211]

176 To establish a common intention constructive trust, a plaintiff must prove that:[212]

(a) the parties shared an actual (and not presumed) common intention as to their beneficial interests in a property, which may be express or inferred;

(b) one party has relied on that common intention to their detriment; and

(c) it would be an equitable fraud to deny the beneficial interest of the party who has relied to their detriment.

177 Presently, the features needed for a common intention constructive trust overlap with those giving rise to a proprietary estoppel. The degree of overlap is sufficient to question whether a common intention constructive trust survives in Australian law separately to an entitlement to a proprietary estoppel.[213]

178 A proprietary estoppel is created where the conduct of the promisor encourages the expectation of an interest in property and the promisee acts to their detriment based upon the encouragement that an interest in the property will become theirs.[214] While there is no common intent, it relies on the encouragement of an expectation by one and the detrimental reliance by the other. In those circumstances equity will intervene to bind the promisor to make good the expectation that has been created.[215]

179 To establish a proprietary estoppel, a plaintiff must prove that:[216]

(a) a promise was made to the plaintiff that an interest in the property would be conferred;

(b) the plaintiff acted in reliance on that promise;

(c) the plaintiff acted reasonably in relying on that promise;

(d) the promisor knew or intended that the plaintiff would rely on the promise; and

(e) the plaintiff has suffered detriment by reason of the failure to abide by the promise made.

180 The promise that the plaintiff relied on may be a sufficient basis for a proprietary estoppel even if it lacks sufficient certainty or specificity to be enforceable as a contract.[217] The principle applies not only to the expenditure on land owned by another but also to encouragement or assurance that other actions would lead to an interest in property.[218]

181 The party advancing the estoppel claim bears the onus to show that they relied on the representation or promise. To discharge the onus to establish reliance, they must establish that the promise contributed to or influenced their conduct, so that it is unconscionable for the promisor to resile from the representation. [219]

182 The remedy for proprietary estoppel is not limited to the minimum equity to do justice. That is, damages are not necessarily sufficient because the focus is prima facie to enforce the expectation arising from the promise.[220] The relief is approached in a flexible manner, with regard to the rights of other parties, and the expectation of a plaintiff being an appropriate expectation.

183 A constructive trust may be imposed on parties to reflect an equitable interest that is not otherwise reflected by their legal interests arising from the way in which those parties conducted their personal relationship. The equitable interest is protected by the imposition of a constructive trust where a plaintiff establishes that:[221]

(a) parties shared a joint endeavour or a relationship in which effort and expenditure was shared;

(b) the substratum of the joint endeavour or relationship is removed without blame; and

(c) it is unconscionable for one party to retain, as against the other party, contributions to the joint endeavour.

184 Muschinski v Dodds ('Muschinski')[222] describes the features of such an equitable interest. The parties who were in a domestic relationship were registered on title as tenants in common in equal shares. This reflected their common intent that Muschinski would pay the purchase price and that Dodds would contribute labour and costs of work on the property. The relationship failed at a time Muschinski had made all of her agreed contribution and Dodds barely any of his. Dodds' inability to carry out his obligation was not attributable to his fault but to the council's refusal to issue permits. The relationship ended and Dodds asserted his half interest. Deane J found that this assertion was unconscionable as it failed to recognise the unequal contributions. Accordingly, Deane J adjusted the contributions by imposing a constructive trust on both parties, such that each held their share upon trust to repay the other their contributions based on the traditional equitable notion of unconscionable conduct. Once the unequal contributions were accounted for as between the parties, there was nothing unconscionable about the equal division of surplus funds on sale of the property in accordance with the registered interests. The principle, as originally expressed by Deane J and often quoted, is:

the principle operates where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed to 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 the other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit the 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.[223]

185 Baumgartner v Baumgartner ('Baumgartner')[224] extended these principles to circumstances where there is no initial common intent. The parties in Baumgartner were considered to be pooling resources to meet all expenses, with the woman providing her salary to her partner. The Court found that it was unconscionable for the man, having used those pooled resources to reduce debt on their family home more quickly during the period of co-habitation, to recognise no equitable interest. Pooled earnings were regarded as something 'designed to ensure earnings would be expended for the purpose of their joint relationship and to ensure their mutual security and benefit'.[225]

186 It is not merely financial contributions that are to be considered. In Baumgartner, where the property in question was bought and used as the family home and funded by mortgage repayments made from pooled resources for their mutual security and benefit, equal beneficial ownership was the Court's starting point, adjusted as necessary for disparity in financial contributions in the duration of the relationship and for contributions before and after.

187 As is clear from Cressy v Johnson (No 3) ('Cressy'),[226] contributions are ascertained by looking at the whole of the relationship and are not confined to direct financial contributions but to other arrangements in the relationship that contribute to the acquisition, maintenance or improvement of property. In Cressy, although not pooling finances, the parties had a division of responsibility whereby Cressy undertook parenting and homemaking duties and paid housekeeping expenses from her wage, permitting Johnson to focus his finances on the acquisition of properties. As Kaye J (as he then was) said:

...the remedy of a constructive trust is not a response by equity to a perceived unfairness where, on termination of a personal relationship, the legal arrangements between the parties do not reflect the commitment and contribution of each party to the relationship. Rather, the equitable remedy of a constructive trust is available to adjust the legal interests in property of a party or parties to a relationship, where, during and on the basis of the continuation of the relationship, one party has made a contribution to the acquisition, maintenance or improvement of the property, such that it would be unconscionable for the other party, on the failure of the relationship, to insist strictly on his (or her) legal rights without an appropriate adjustment commensurate with the contribution made by the former party to the property. 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.... 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.[227]

188 Kavitha alleges that she, Colin and Richard shared a common intention from 2004 to hold equal shares in the farm, such that both Colin and Richard held part of their one-half legal interest on trust for Kavitha, giving rise to Kavith's one-third equitable interest. This is in part established by documents and conversation and partly inferred from her parents' contribution to repayment of the joint purchase borrowings.

189 Kavitha relies on a second common intent arising in 2006 between herself and Richard that they would have an equal interest in the farm when Colin sold out of the arrangement. Kavitha says that common intent rested on a conversation where Richard said to her words to the effect of: 'it's just us now' at the time he paid out Colin's interest. Alternatively, Kavitha says the second common intent can be inferred from contributions made by her parents to repayment of the joint purchase borrowings, and two statements by Richard at the time of rezoning: first, 'now we're rich' and secondly, their children would be looked after because they were rich.

190 Alternatively Kavitha contends that Richard's three representations set out immediately above were promises of a proprietary interest in the farm upon which she relied.

191 Further and in the alternative, Kavitha relies on a constructive trust arising from the nature of her relationship with Richard and contributions made during their relationship to the acquisition, maintenance and improvement of the farm that she did not intend for Richard to retain.

192 Kavitha denies that the defendant is entitled to mense profits or occupation costs and alleges she remains in possession in accordance with her equitable interest.

193 Kavitha submits that that the arrangements for the purchase and operation of the farm are to be seen through the lens of her domestic relationship with Richard, namely:

(a) The domestic relationship was one where she trusted Richard's experience and relied on him to protect her interests.

(b) She ran the farm first with Colin, and then by herself. Richard had little overall involvement, and certainly no day-to-day involvement in directing workers or managing the market garden business.

(c) Richard's financial contribution complemented Kavitha's practical contribution. The sharing of contributions made practical sense because her passion was farming - it was her project - and Richard was able to obtain a benefit by offsetting losses against other income. Accordingly, the purchase and operation of the farm were a joint endeavour.

194 Kavitha submits that the documentary evidence does not tell the complete or true story. She points to the documentary evidence as inconsistent with the actual agreement and actual contribution of the parties, that arose in the oral evidence in two important ways:

(a) Both Colin and Kavitha say that the original agreement was for a three-way ownership and this was unchanged despite the change in purchaser to the Moores Rd Trust. Kavitha's submission, based on her evidence, was that this did not change when Richard bought out Colin's interest.

(b) Despite Clyde Market Gardens being a company that operated the business from 2005 with Richard as sole director and shareholder, Kavitha's evidence was that Richard had no day-to-day involvement in the business, which Kavitha ran entirely herself after May 2006.

195 Kavitha submits that the Court should accept that the rezoning of the farm led to Richard and Kavitha celebrating their wealth.

196 In her submission, the evidence about her conversations with Richard about the farm is consistent with the nature of domestic relationships. Namely, that Kavitha told Richard about problems with Colin and Colin's decision to leave, Richard fixed the problems, and having done so told Kavitha that the problem was solved. He then told her 'it's ours', which the Court should accept refers to the farm, and is a credible response given their domestic circumstances.

197 In Kavitha's submission, the Court should accept that Kavitha's parents made cash contributions that were given to Richard after actual acquisition of the farm during the currency of Kavitha's relationship with Richard. The Court should accept that her parents brought money with them on visits to Australia, because:

(a) passenger cards show money brought in;

(b) Nehra confirmed an occasion of the parents bringing money to Australia;

(c) Kavitha and her mother gave evidence that her parents had brought money in;

(d) Kavitha clearly had financial resources as shown by the funds made available to her by her parents to purchase the East Bentleigh house;

(e) there is evidence of unexplained deposits in Richard's bank account, identifying examples of deposits on 22 May 2005 of $7,500 and 23 October 2006 of $20,000. There are also two deposits described as 'Deposit Anand Kulakrni Gurupaji request' of $5,000 and $15,465.09 in August and October 2007, respectively, which should be inferred as coming from cash provided by Kavitha's parents; and

(f) it was Indian custom to leave cash with family when visiting.

198 Kavitha urges acceptance of her evidence that when the relationship broke down in 2012, she and Richard subsequently agreed that she would take title to the farm on paying Richard the sum of $1,000,000, and that they would each keep their 'own' property - being the East Bentleigh house for Kavitha and West Melbourne for Richard. This agreement was consistent with the 2013 will, which left Kavitha Richard's interest in the farm, the equipment and the business.

199 Kavitha submits that her uncontradicted evidence is that, despite her incarceration, between 2014 and 2017 she continued to direct the work of the farm. Richard used the funds that her parents provided to pay legal fees, purchase restrained property and pay farm expenses (which she says she directed). She submits that this evidence is unchallenged and consistent with documents including the 'Kavitha Money' summary that Richard prepared.

200 Kavitha submits that I should accept her and her mother's evidence that:

(a) further negotiations to purchase the farm between 2014-2017, which did not lead to a binding agreement, were a delaying tactic and negotiations for the purchase resumed in 2017; and

(b) following the meeting on 1 September 2017, her parents and Richard agreed to a purchase price for the farm of $1.2 million. She says this price reflects half the value of the land (assuming it to be $3.2 million) less consideration for money already paid by the parents.

201 Kavitha submits that this evidence is consistent with Sheppet's email of 18 September 2017 seeking that all communication go through his office and is also consistent with the further payment into the ANZ joint account after September 2017.

202 On these facts, Kavitha argues that a constructive trust for her one-third interest in the farm is established. In Kavitha's submission, Richard's statement to Kavitha that 'it's ours now' is a representation that she had a beneficial interest in the land. Given their domestic relationship, whether or not the proportion of that interest changed in 2006, Kavitha submits that it is reasonable to infer that by the time the relationship failed, Richard held one-half interest in the farm on constructive trust for Kavitha.

203 Kavitha submits that all of her actions from 2004 are consistent with the farm being a joint endeavour arising from their relationship and that she will suffer detriment if her contribution is not recognised.

204 Accordingly, Kavitha says that she is entitled to a declaration that she has an equitable interest in one-half of the land.

205 Kavitha made two submissions concerning the laches defence arising from her alleged delay in commencing the claim:

(a) First, that equity considers the issue of timeliness by using, as a comparator, common law claims in respect of land. She submits that at common law a person has 15 years to bring a claim in respect of land and thus similarly she is permitted 15 years to commence this claim. Kavitha says that time began to run at the earliest in 2005, and she commenced the claim in March 2019, which she submits is therefore within that time period. Kavitha takes issue with the defendant's position that the Family Law Act 1975 (Cth) would be a relevant comparator that provides a two-year claim period.

(b) Secondly, that she did not sit on her rights until after Richard's death. She submits that she had been discussing (over time) arrangements to buy out Richard's interest in the farm and there had been deposits into the ANZ joint account from 2015 onwards towards the cost of purchase. In those circumstances Kavitha submits that any delay is not unreasonable, acknowledging there is prejudice because of Richard's death.

206 As to the counterclaim for mense profits and occupation costs from August 2019, Kavitha agrees that if occupation costs are owed they are payable in the sum of $38,000 between 25 August 2020 and the end of the trial. Kavitha disputes that she was trespassing and submits that mense profits are not payable from after the notice to vacate on the basis that she had a right to occupy the farm because of her beneficial interest.

207 The defendant denies that the first common intention that Kavitha alleged was in place at the date of the farm's purchase. The defendant denies that the farm was purchased with any money from Kavitha.

208 His defence alleges that Kavitha knew of the creation of the Moores Rd Trust in 2004 and knew that Richard and Colin were trustees and became registered proprietors in their capacity as trustees at the time of settlement.

209 He denies the second common intention as Kavitha did not contribute to the refinancing to pay out Colin and did not make payments to Colin owing under the Deed.

210 He further denies the existence of a constructive trust based upon unconscionable denial of contributions. He admits that Kavitha may have paid some amounts towards maintenance and improvement of the farm, but denies that amount is greater than the benefit received from her use and occupation of the farm.

211 The defendant submits that in many respects the documentary evidence is inconsistent with Kavitha's claims, submitting that:

(a) Kavitha's oral evidence was unreliable, departed from previously sworn testimony, was contradictory, and departed from her case as pleaded and particularised; and

(b) Kavitha's evidence was not only unreliable, but at times fabricated and cannot be accepted as truthful where not supported by other accepted evidence.

212 Central to the defendant's overall case is that Kavitha, her parents and her lawyers all failed to bring up any credit for past contributions in negotiations to purchase the farm after the end of the relationship. At the meeting on 1 September 2017 they failed to raise any claimed interest arising from a past agreement. The defendant submits that Sheppet's evidence of this meeting makes it clear that he recalled Richard stating that he paid 100% of the purchase price for the farm, that he serviced the debt, and that he wanted it sold. The defendant points to Sheppet's contemporaneous file note in support of this submission. The defendant further says that contrary evidence that Kavitha and her mother gave as to what occurred was not put to Sheppet and was a fabrication.

213 The defendant structured his submissions by first identifying facts he said the Court should be satisfied of, either because they are uncontroversial or because they come from uncontroversial documents. This includes Sheppet's evidence and the documents he created.

214 The defendant then addressed five relevant questions arising from disputed factual issues the Court must answer a in determining the claim. They are:

215 First, at the time of purchase in January 2005, was it Richard's intention, or did he represent to Kavitha, that she was to have a one-third interest in the farm? The defendant submits that I cannot be satisfied of this because Kavitha's and Colin's oral evidence in support of this is inconsistent with the documents. Likewise, Kavitha's evidence of an agreement in 2004 between Richard and her mother to pay instalments after settlement was not borne out by Manjula's evidence. Kavitha's evidence about the reasons for the changes in MAGIC Pty Ltd and her knowledge or lack of knowledge of the changes in purchase arrangements could not be accepted, with the defendant submitting the explanations are contradictory and inherently implausible.

216 Secondly, in 2006 was it Richard and Kavitha's common intention, or did Richard represent, that they would now have an equal interest in the farm? The defendant says the Court cannot be satisfied of this because:

(a) the documents clearly demonstrate that Richard alone funded the purchase of Colin's half interest; and

(b) the only oral evidence is Richard's alleged statement 'it's just us now', which , if made, is not proof of an intent to confer or increase any interest in land.

217 Thirdly, subsequent to 2006 did Richard represent to Kavitha that she had a half share interest in the farm? The only evidence of this relied on is Kavitha's evidence of the comments: 'now we are rich', and the statement about 'millionaire babies' after rezoning. The defendant says that such evidence, like the conversation in 2006, should be treated with caution for the reasons enumerated in Watson v Foxman (Watson).[228] In any event there is no evidence of reliance on those statement in subsequent conduct.

218 Fourthly, did Kavitha's parents provide cash to Richard as contributions to the acquisition, maintenance or improvement of the farm as pleaded? The defendant submits that Kavitha was treated by her parents with indulgence and accepts that it is likely that Kavitha's parents bought cash with them to Australia at least on some occasions and gave cash to her. However, the defendant says that Kavitha has not proved that her parents provided cash to Richard, nor that it was used to contribute to the purchase of the farm, in light of the documents and Richard's statement in September 2017.

219 Fifthly, did Kavitha herself made cash contributions or use funds provided by her parents to the maintenance and improvement of the property? The defendant submits that I should not be satisfied that this occurred. The defendant submits that Kavitha's evidence in relation to cash she gave Richard from the market garden business is vague and unreliable. The defendant submits that there was only ever a very small window between 2007 and 2009 when the business may have been profitable and it is probable that overall the business losses exceeded any small profits.

220 As to a constructive trust arising from the relationship, the defendant submits that generally Richard and Kavitha did not pool income. The oral evidence did not otherwise go so far as to say Kavitha paid for work at the farm described as maintenance of the farm and unless there is evidence to the contrary the Court should infer that any work was paid with cash generated by the market garden business or money that Richard loaned to Clyde Market Gardens.

221 Additionally, the defendant submits that Richard's conduct from the time of separation in 2012 was inconsistent with an equal interest promise or intent. In particular the defendant relies on:

(a) Richard's statement to the police in December 2014;

(b) Richard's positive steps to sell the farm from 2014;

(c) the contract for $3.2 million in 2015 that Richard signed; and

(d) Richard's assertion of 100% payment of the farm at the 1 September 2017 meeting.

222 The defendant notes that Kavitha's pleaded case relies on financial contributions to the upkeep, maintenance and improvement during and after 2017. As to expenses after 2012 the defendant submits they are not performed in furtherance of a joint endeavour and any expenses incurred after 2015 were incurred in the knowledge that Richard was asserting his right to sell the farm.

223 Finally the defendant submits that if Kavitha establishes an equitable interest, the relief should reflect conscientious conduct consistent with the agreement or promise. The defendant says that if such an interest is established, it is at most an agreement to hold an interest in the farm on the basis that Kavitha would pay for that interest with funds that her parents sent. As such it would be disproportionate to grant relief in excess of the contributions found to have been paid. If the Court were satisfied of contributions made by Kavitha to the maintenance of the farm during the relationship, the counterclaim would be insufficient to establish that it would be unconscionable to deny an equitable interest, bearing in mind Kavitha has had the benefit of use of the farm since 2012.

224 As to his defence of laches it is relevant that:

(a) Kavitha obtained family law advice while in prison but nevertheless did not assert an interest prior to Richard's death; and

(b) Kavitha had knowledge of relevant facts and had obtained legal advice but made no claim until March 2019.

225 The defendant submits that the doctrine of analogy to legal rights does not apply to this case, but if it does so, the analogous claim and therefore time limit would be that under Part VIIIAB of the Family Law Act 1975 (Cth).

226 As to the claim for mense profits the defendant says that Kavitha admits receipt of the notice terminating the licence to occupy. The defendant submits that existence of a constructive trust does not give rise to a right to possession and therefore the defendant is entitled to mense profits for the period 7 August 2019 to 25 August 2020 at which time the parties agreed on continued occupation subject to payment of occupation costs.

227 Given the factual contest between the parties in large part centres on evidence of conversations on the one hand, and inconsistent or incomplete documentary evidence on the other, the principles by which a court approaches the fact-finding exercise are worth restating. These principles apply to recollections of conversations where all parties give evidence of what was said and done, as well as specific cautions where one person, subsequently deceased, cannot give evidence as to conversations.

228 The observations of McClelland J in Watson are frequently quoted as to the difficulty generally with evidence of recollection of spoken words:

In many cases (but not all) the question of whether spoken words were misleading may depend on what, if examined at the time, may have been seen as relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or conditions. Furthermore human memory of what was said in a conversation is fallible for a variety of reasons and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervened and the process of memory are overlaid, often subconsciously, by perceptions or self interest as well as conscious consideration of what should have been said or could have been said, all too often what is remembered is little more than an impression from which plausible details are then, often subconsciously, constructed. All this is a matter of ordinary human experience.[229]

229 In the context of fact-finding where credit findings assume significance, Hallen J summarised the principles in Pollock v NSW Trustee and Guardian.[230] Relevant to this case those principles include:

(a) Proof of a fact requires the court to feel actual persuasion of the existence of that fact, not simply a mechanical comparison of probability.[231]

(b) The credibility, veracity or motives of a witness may be tested by reference to objective facts proved independently of the oral evidence given and in particular by reference to documents.[232]

(c) Evidence of the words and actions of the person subsequently deceased, given by those who carry the onus of proof, should be approached with 'suspicion' given the other person cannot give their own version of what took place.[233] Suspicion in this context means the evidence is approached with great care and scrutiny such that 'the evidence ought be thoroughly sifted, and in the mind of any judge who hears it ought to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witness is made perfectly clear and apparent',[234] and the court believes their evidence, then it may act on that evidence.

(d) In particular, evidence of conversations with a deceased is treated with care given the deceased is not available to confirm or deny, or to expand or explain the conversations. Memories of such conversations deteriorate with time. Additional caution is needed and the expectation that independent evidence of such conversations, where available, is led.

(e) In relation to such conversations, there is a significant risk of reconstruction,[235] and the process of litigation itself subjects memories to powerful biases.[236] The prospect not only of unconscious reconstruction, but of a self-interest to give evidence favourable to one's case, requires a court to proceed with caution.

230 As a result of the cautions attaching to present recollection of words and conversations, greater weight is usually accorded to contemporaneous documents as 'safer repository of reliable fact',[237] subject to consideration of who has prepared those documents. This is not to discount recollection but to assess it in 'its proper place alongside contemporaneous documentary evidence and other evidence upon which undoubted or probable reliance can be placed'.[238]

231 I formed the view that Kavitha was an unimpressive witness and that her evidence was largely unreliable. In part, Kavitha acknowledged that her memory was adversely affected by health issues and the passage of time. However, she also made grand and unsubstantiated statements that were not corroborated and were often contradicted by other evidence including contemporaneous documentary evidence. On occasion her own oral evidence was contradictory. Faced with many contradictions she took refuge in the explanation that she left such matters to others or did not read or understand the documents that she signed. I found such explanations frankly implausible, for a woman who on the one hand describes herself as having left school at 17 to become a farmer,[239] but on the other hand in her oral evidence before me described herself as having a Masters in Economics.[240]

232 Moreover in the course of giving her evidence she displayed a profound sense of entitlement. When Chipperton died she described that 'she had to have the house'. The settlement of the Chipperton estate proceedings was funded entirely by Richard and her parents. As far as the evidence reveals, Kavitha contributed minimal funds herself. Then, when the East Bentleigh house was confiscated and had to be repurchased, it was contributions forwarded by Kavitha's parents that secured Kavitha's name on title again.

233 When describing the financial arrangements to pay the settlement of the Chipperton proceedings and originally secure her title to the East Bentleigh house, Kavitha said that she took no part in making the financial arrangements. She said when Richard and her parents spoke:

No they spoke, they arranged everything. I don't have to do any of this, I'm a spoilt child, okay? I don't do paperwork and I don't care. If I want a farm, they've got to arrange for it. If I want a house, they arrange for it, OK? ...it was like I had three parents when it came to this. That's all. They took care of everything.[241]

234 I have little doubt that Kavitha believed that the farm had been bought for her. She approached the matter on the basis that those contributing the money - whether Richard, Colin, or her parents - were doing so recognising and protecting her interest in the farm.

235 Her explanation that she thought that a will, or a deed, or a power of attorney were documents prepared by others to protect her interests was illogical and frankly self-serving. As the defendant submitted, Kavitha receiving the farm as a beneficiary under the 2013 will would simply ensure that the Chipperton settlement loan financing Kavitha's title to the East Bentleigh house would not become a liability of the estate to Kavitha's benefit. At one point she gave evidence that, when holding a power of attorney for the purpose of signing on the part of Richard at settlement in January 2005:

I should have just sold the land and gone then, you know.[242]

236 I find, consistent with the documents in July 2004 and the evidence of Kavitha and Colin, that an agreement to purchase the farm was reached by 2 July 2004 with each of Kavitha, Richard and Colin agreeing to contribute one third of the purchase price. This was reflected by the incorporation of MAGIC Pty Ltd with three shareholders immediately before the 6 July 2004 contract note identifying MAGIC Pty Ltd as purchaser. What was intended was that at settlement each would contribute one third of the purchase price.

237 Kavitha gave evidence that she told Colin in 2004 that if he couldn't raise his share, she would talk to her parents who would be more than happy to cover extra money. She said 'we had no qualms about money... That's the only qualm we don't have'.[243] Even on Kavitha's case she did not provide her one-third payment by the original settlement date. It is clear from the later events surrounding the purchase by Kavitha's parents of the East Bentleigh house that, at least in 2015, they had access to substantial funds. Despite this there was no evidence to explain why the contribution to Kavitha's one-third payment was not provided in full before 10 December 2004 or indeed in January 2005.

238 Kavitha relies on a conversation between Richard and her mother prior to settlement where it was agreed that Richard would pay Kavitha's share and her parents would repay the amount by instalments. In her evidence-in-chief she describes this as occurring when Richard became involved in the purchase of the farm.[244] In the particulars that Kavitha provided, this conversation was a telephone conversation occurring in July 2004 after purchase.[245] However, Manjula did not give evidence of any such conversation occurring at all and said her first conversation with Richard occurred in 2005. Manjula said the first time she spoke with Kavitha about the farm was in February 2005.[246] I cannot be satisfied that there was any agreement between Kavitha's parents and Richard that Richard would pay Kavitha's contribution up front and be repaid by instalments.

239 The settlement in accordance with the original contract note was to have occurred by 10 December 2004 but did not. Subsequent to that date the Moores Rd Trust was established on taxation advice and a new contract dated 14 January 2005 was signed with the Moore Rd Trust as purchaser. Settlement occurred shortly after. The evidence as to the original purchase of the farm does not disclose the timing of the application for the joint purchase borrowings nor the reason why Richard and Colin took out two separate loans. I infer that the delay in settlement was due to the lack of three equal contributions to the purchase price being available and the need to raise additional funds. The additional funds were borrowed jointly by Richard and Colin who were otherwise contributing to the purchase price.

240 My impression of Colin's evidence was that he was doing the best he could to honestly recall events from nearly 20 years previously, about which he was uncertain. He gave evidence without an opportunity to review documents to assist his memory and it is unsurprising that the detail of arrangements between 2004 and 2006 was, as he accepted, incomplete. Broadly he was correct that he was paid out the value of the funds he contributed 'up front'.

241 Kavitha's initial case as pleaded, and as she had sworn on 5 March 2019, was that she had no knowledge of the changes in structure and identity of the purchaser. I reject this evidence. Her evidence at trial, accepting that she knew of her removal as a shareholder of MAGIC Pty Ltd but not of the creation of the Moores Rd Trust, is equally implausible. It is improbable in light of the record of her attendance on Richard's accountant for advice, her signature as witness on the Trust Deed and her signature as Richard's power of attorney on the transfer of land. I find that Kavitha had knowledge prior to purchase that the farm was to be owned by the Moores Rd Trust in which Colin and Richard had equal interest.

242 I reject Kavitha's explanation for her signature on documents creating the trust and on the transfer of land, being that she signed these (and indeed all) documents without reading them, based on her trust in Richard. While she wished to portray herself at times as a naïve and trusting partner who did not read documents, at other times she portrayed herself as commercially knowledgeable and experienced in business and finance, claiming good judgment in identifying the potential for rezoning benefit presented by the farm.

243 Although Kavitha gave evidence of an unknown amount remaining from a gift from her parents at an indeterminate time in 2004 being contributed to the purchase price, her particularised claim pleaded only that those funds were committed to the repayment of the joint purchase borrowings. I cannot be satisfied that any funds provided to Kavitha or Richard by her parents prior to 25 January 2005 were used at settlement of the farm. If, as Kavitha claims, borrowings were increased to take account of an agreement that Richard would fund Kavitha's contribution, it is improbable that the necessary loans to be used for the purchase would be jointly taken out by Colin and Richard as in fact occurred. Any such instalment agreement would be consistent with Richard taking a two-third interest in the Moores Rd Trust. He did not.

244 The pleaded claim alleges that after purchase Kavitha asked her parents to contribute funds towards repayment of the joint purchase borrowings and her parents did so. [247] This is not made out on the evidence. Richard's bank statements demonstrate that all repayments on both loans were debited from an account in his name, with a small exception.[248] In 2006 Richard alone took out the refinancing to pay out the joint purchase borrowings and pay funds to Colin. Kavitha's case at trial was less specific as to contributions towards her interest. She simply relied on cash amounts contributing to acquisition of the farm after the event because cash amounts were given to Richard for that purpose. Those amounts were particularised in February 2020 as:[249]

(a) $20,000 cash given to Kavitha in about April 2004, which was given to Richard, although Kavitha did not know whether any of this amount was put towards repayment of borrowings for the farm;

(b) $10,000 in late 2004 that Surita carried to Australia;

(c) $20,000 that Manjula gave during a visit in December 2004;

(d) $5000 that Surita gave in 2005 in discharge of a debt owed to Kavitha's parents;

(e) $20,000 that Dr Chakrabati carried in 2005;

(f) $20,000 that Manjula gave during a visit in August 2006;

(g) $20,000 that Manjula gave during a visit in October 2006;

(h) $20,000 that Manjula gave during a visit in May 2007;

(i) $20,000 that Dr Kumar brought from India during 2007; and

(j) $20,000 that Manjula gave during a visit in January 2010.

245 According to the particulars, each of the amounts (b) to (j) were accompanied by words from the person handing over the cash that it was money for Kavitha's contribution to the farm.

246 The evidence at trial as to frequency and amounts of cash brought to Australia between December 2004 and 2011, and evidence that it was given to Richard, varied substantially from these particulars. It was vague and contradictory. It is even less reliable than the particulars compiled after Kavitha visited India to obtain information for the provision of particulars. Kavitha described payments from her father in addition to those from her mother despite particulars being amended to exclude reference to payment from her father. At times Kavitha gave quite definite evidence. At other times she disavowed any understanding of financial arrangements:

'for me was to get the farm. All the payments, the headache is either mum or Richard or Colin's.[250]

247 One example of her contradictory evidence is about the first contribution. On one occasion she described $20,000 that her parents gave her in 2004 when she and Richard became engaged as being used as the first instalment.[251] Later when describing the money that Dr Chakrabati brought in 2005 she said she told Richard in the car on the way back:

'there you go that's your first payment for the farm'.[252]

248 Her evidence about this payment from Dr Chakrabati was in other ways completely imprecise saying that she looked in an envelope that contained a wad of notes that looked to be about $20,000.

249 There was an unexplained absence of evidence from people identified as having brought money to from India: Surita, Dr Chakrabati and Dr Kumar. I infer that their evidence would not have assisted Kavitha's case. That absence is compelling. Hansen J observed:

...in a claim based upon communications with a deceased persons the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.[253]

250 Kavitha's father did not give evidence. Kavitha gave evidence that her father's mind has been disordered since he contracted Covid a year earlier and he is not able to give evidence. Although this evidence is less than satisfactory to explain his absence, leaving any medical opinion to that effect I have not drawn an adverse inference from his absence. Given the unreliability of Kavitha's and Manjula's evidence, Kavitha has not discharged her onus of proof as to the conversations between her parents and Richard, or her parents' contributions to the maintenance of the farm.

251 Kavitha's evidence by the time of trial is that her parents had transferred 'over $400,000' to the farm.[254] She was quite definite about that figure as one according to her mother's account. She has made no attempt to identify how she arrived at this amount or when her mother provided that figure. This amount is inconsistent with the particulars provided after Kavitha's return from India to obtain information about the contributions, which informed the particulars of contributions. It is in my view a fabricated figure.

252 In my view Kavitha's evidence generally of the amounts given is significantly inflated. She graphically described the first occasion that her parents came to Australia after January 2005 saying her mother produced $30,000 from her petticoats, her father producing $30,000 from his pants and together they gave Kavitha a further $10,000 to buy a seeder. The particulars of contributions describe the first occasion after settlement as a visit in August 2006 in which Richard was given a total of $20,000.[255]

253 By contrast, Manjula's evidence-in-chief was that she and her husband first met Richard in 2005 and on that occasion she gave him (or Richard and Kavitha together) $20,000, and so did her husband for Kavitha's 50% share. She described a second occasion amount totalling $50,000[256] and a third occasion occurring in 2009 or 2010 again totalling $60,000.[257] In my view these amounts are also inflated and fabricated.

254 While I accept that Kavitha's parents gave some funds, Manjula said at the start of her evidence that at the time the farm was settled she and her husband didn't have much money.[258] She agreed in cross-examination that funds she gave between 2005 and 2007 were a gift to Kavitha,[259] but at the same time maintained she told Richard it was for the farm.

255 The impression I formed of Manjula as a witness was that she was easily confused about matters. Her recollection of detail and timing of events was poor. At times she confused payment relating to the East Bentleigh house with payment relating to the farm. Much of her evidence was clearly reconstruction rather than actual recollection. As reconstruction her evidence was clearly influenced by her acceptance of Kavitha's account of events. I found her evidence unreliable and do not accept it where it is contradicted by other evidence. Where it is the only evidence corroborating Kavitha's account it does not add any weight to Kavitha's account, given on other occasions it contradicted Kavitha's account. I accept the submission that it is implausible that, if given large amounts of cash between 2005 and 2011, Richard would not have banked those amounts in reduction of the loans upon which he was paying interest.

256 In submissions, Kavitha 's counsel sought to persuade me that I should infer that certain unexplained amounts deposited in Richard's account occurring around the time of Kavitha's parents visits to Australia came from Kavitha's parents. That is in my view too long a bow to draw. There are however, two transfers of funds in 2007 - $5,000 on 20 August 2007 and $15,465.09 on 2 October 2007 - each described as 'Deposit Anand Kulkrni Gurupaji request'. Kavitha does not rely on either amount as a contribution to the farm. The evidence does not deal with the purpose of the deposit or who has requested it. There is no evidentiary basis to treat these deposits as having any relevance to the issue of Kavitha's contribution to the farm.

257 Doing the best I can on the evidence, I conclude that any money prior to settlement was given to Kavitha (or she and Richard together) but that those funds were not used to contribute to the acquisition of the farm. I conclude that Kavitha's parents came to Australia on three occasions after 25 January 2005: in August 2006, October 2006 and May 2007. Manjula's evidence was that she did not always complete the incoming passenger card honestly in relation to the amount of cash she was carrying. This makes the documents themselves an unreliable source of evidence. As completed, the declarations, if honest, would demonstrate that Kavitha's parents bought no more than $20,000 in 2007 and unknown amounts somewhat in excess of $20,000 in 2006. After 2007 there were no further visits until Kavitha's father's visit in June 2011, by which time Richard was arranging the Chipperton settlement loan to obtain Kavitha's title to that property. From this time Manjula agreed the priority was to repay that loan.

258 I cannot be satisfied of the precise amount Kavitha's parents provided before the breakdown of Richard and Kavitha's relationship. The original estimate of $20,000 contributions is likely to have been calculated on the basis that each parent could bring up to $10,000 into the country. I do not accept Manjula's evidence converting this amount to $20,000 each or some larger figure. Whatever the actual amount I am not persuaded that it was given as payment of a contribution towards Kavitha's interest in the farm under an agreement between Richard and Kavitha's parents that Richard would pay for Kavitha's share and her parents would repay it in instalments. It is likely that Kavitha used the majority of whatever funds her parents provided in 2006 and 2007 for expenses that she was incurring running the farm or the East Bentleigh house, supplementing her other sources of income.

259 There is no evidence that Kavitha provided any cash to reduce Richard's borrowings during this time.

260 Kavitha's evidence was that she also gave Richard cash from the income generated by the market garden business to hold from time to time and would take that cash back to use for expenses as needed. Despite Kavitha providing cash from time to time, it is clear that the business was incurring increasing losses, even before Kavitha became ill and debilitated. It is unlikely that any cash surplus was available during the relationship.

261 I am satisfied that the documents created when Richard bought out Colin's interest accurately reflect the position at the time of purchase that Richard and Colin each contributed funds of $170,000 and jointly borrowed the balance of the purchase price. I am satisfied that Kavitha knew and understood this arrangement. Given the documentary evidence that Richard maintained to account for cash contributions that he held for the purpose of paying funds on behalf of Kavitha's interests or at her directions, it is improbable that Richard would make no formal record of any such intended interest in the farm.

262 There was no issue taken by Kavitha with Richard's integrity and honesty.[260] In light of his professional experience as a barrister practising in wills and estates, it is unlikely that, had he promised or intended to give Kavitha a beneficial interest, that he would not have documented it. He would also have understood the difference between a testamentary bequest and a promised interest in property.

263 I am satisfied that Richard, in buying out Colin's half share of the Moores Rd Trust, and borrowing the funds to do so, intended to become the sole registered proprietor and beneficial owner of the farm.

264 Kavitha's evidence of the conversation she had with Richard in 2006 was self-serving in many respects and contrary to the documentary evidence. Richard did not pay extra money to Colin for him to go away. Rather, the correspondence at the time made clear that Richard sought advice to ensure Colin was paid fairly for his investment. Kavitha's unreliability about these details reflects on her evidence as to the conversation as a whole. I accept that Richard probably said something to the effect of 'it's just us now'. Such a comment would be reasonable given the conflict between Kavitha and Colin that had been building for some time and which led to Colin's departure. I do not accept that it was a statement intending to reflect anything other than the fact of Colin's departure. I do not accept that it represented any conferral of, or increase in, an interest in land.

265 Were there a promise to confer or increase an interest in the farm, I would have expected at the very least that there would be some communication of this by Richard with Kavitha's parents who were, on Kavitha's case, paying Richard instalments for that interest. There is simply no evidence that in 2006, on Colin's departure, Kavitha had an interest that increased or changed.

266 The rezoning of the land in 2010 increased its value. It is probable that Richard and Kavitha celebrated the rezoning decision. The discussion about 'millionaire babies' is in my view a worthless piece of evidence, not only because it is likely to be only a flippant comment but also because it took an inordinate amount of time and effort to extract the evidence from Kavitha in her examination-in-chief. Further, Kavitha's evidence that Richard said to her 'I'm already Rich, now we are rich' was given with a degree of precision that itself makes the evidence somewhat suspect. I am not persuaded that Richard made this statement, even as a casual observation. I apply a full measure of caution to the precision of Kavitha's evidence as to this specific statement that she attributes to Richard, in light of her general inability to recall past events and discussions.

267 Even if I were satisfied that Richard made the statement, I could not be satisfied that Richard intended it to convey that Kavitha was promised a beneficial interest in the land. As at 2010, Kavitha had an in-principle unfunded settlement that gave her title to the East Bentleigh house. Richard held title to his home in West Melbourne and the farm. For the duration of their relationship each held property separately. Absent a promise or common intention in 2004 and/or 2006 that Kavitha have an interest in the farm, I accept the submission that if made, Richard's statement at the time of rezoning amounted to no more than a statement of their cumulative wealth.

268 There is, in my view, nothing to support the submission that during their relationship Richard and Kavitha pooled financial resources. The evidence of the financial arrangements between them is limited. Kavitha's evidence was that early in the relationship, when she was working in landscaping, the money she made was hers.[261] Richard swore in 2014 that prior to July 2011 Kavitha was living off money she received from using the East Bentleigh house as a boarding house and 'whatever she made on crops grown' on the farm.[262] While it is accepted that they were in a domestic relationship, it is also clear that Kavitha moved between Richard's home in West Melbourne, the East Bentleigh house and the farm. From 2004 Richard was going to the farm most weekends but by 2010 was visiting less and less.

269 With two exceptions, there is no evidence of joint accounts or joint ownership of property. First, there is the joint borrowing in 2011 to fund the Chipperton settlement. This is explained by Richard's evidence as a consequence of Kavitha being unable to fund the necessary borrowing herself that required Richard to become a co-borrower. Richard was to be repaid his contribution to the borrowings but it was not contemplated that they would jointly hold the East Bentleigh house. Secondly, there is the ANZ joint account, opened specifically to hold the deposit payable under the 2015 contract to sell the farm. This also was for a specific purpose and occurred long after the relationship was ended.

270 There is no suggestion that Kavitha provided Richard with any of the money made under the sharecropping arrangement with the Azemi brothers. I accept Ingrid's evidence that Richard was unaware until visiting the farm in July 2015 that the Azemi brothers had been paying money to Kavitha to use the farm.

271 Beckim's evidence in my view showed little actual knowledge of the state of Richard and Kavitha's relationship. It was clear he mostly dealt with Kavitha during his time at the farm. After 2012 while he was at the farm, he was paying money to Kavitha under a sharecropping arrangement. His evidence confirms that he paid no money to Richard for his use of the farm. According to Kavitha some of the money expended on the farm after the end of her relationship came from Beckim as fund to pay for damage to property the farm.

272 There are two contradictory accounts as to what occurred when the relationship ended. By Richard's account, from 2010 he began to feel the relationship had no real future and he formally ended it in June 2012 when he learned Kavitha had received a suspended sentence for trafficking cannabis during their relationship.[263] He said he was told this by a colleague defending Kavitha on a charge of possession.[264] As outlined above at [105], Kavitha made promises to negotiate purchasing the farm from Richard once she had paid the Chipperton settlement loan off with money from her parents. By Richard's account, based upon this promise, he agreed to allow Kavitha to continue to use the farm.

273 By contrast, Kavitha's oral evidence is that she and Richard agreed in mid-2012 that she would purchase Richard's interest in the farm for $1 million. Kavitha's evidence provided at least three explanations as to how they arrived at this amount, none of which were by reference to the value of the farm in 2012.[265] Nor did any of the explanations identify any accounting for contributions made during the relationship or her own interest in the farm. Her actions between 2012 and her arrest are inconsistent with an agreement to purchase at an agreed price and are consistent with an ongoing promise to purchase the farm after her parents had repaid the Chipperton settlement loan.

274 I am not satisfied that there was any oral agreement made between Richard and Kavitha that Kavitha would pay $1 million to Richard and obtain title of the farm. Richard's statement signed in December 2014 is consistent with events between 2012 and 2014. Manjula confirmed the priority was to repay the Chipperton settlement loan, which in 2012 remained at $750,000. Doing so became further complicated by Kavitha's arrest and the confiscation proceeding and led to the decision that her parents would purchase the house. Ultimately the Chipperton settlement loan was paid out at settlement in 2015 when Kavitha's parents purchased the house. It is implausible that Richard agreed in effect that Kavitha 'buy out' his interest in the farm for approximately one third of the value of the purchase price some eight years earlier.

275 Richard's subsequent negotiations about the farm with Kavitha and her parents, as demonstrated by the documents, was on the basis of market value of the farm. In February 2015, the farm was on the market when Kavitha made an offer of $3.2 million, describing it as 'your full asking price' while also acknowledging Richard was still owed money for the Chipperton settlement loan. Kavitha obtained family law advice in 2015 and her evidence changed again. She said she decided 'He [Richard] can have his 3.2. I'll go for my half.'[266] Again, Kavitha did not take any action that is consistent with this statement. The evidence clearly demonstrates that her parents signed a contract for sale for $3.2 million at the end of 2015. Manjula's evidence was that this was a delaying tactic and she, with Richard's agreement, never intended to complete the contract at that price. I reject her evidence that Richard agreed with such a course. It is illogical, implausible and completely at odds with his contemporaneous instruction to his lawyer that it was a deal too good to let go.

276 Ultimately Kavitha's submission that it was a delaying tactic on her parents' part is borne out. There was a reluctance to finalise matters until Kavitha's criminal proceeding was concluded and she was released from jail. While Richard acquiesced to this course, it is apparent from the tone of the documents that he was increasingly frustrated by the Gurappaji family delay.

277 This is also supported by Sheppet's recollection and his contemporaneous file note of the meeting that occurred on 1 September 2017. At the meeting, Richard offered the farm to Kavitha and her parents for purchase at market value. Richard had obtained an updated valuation of the farm given the two-year delay in agreement. Sheppet's evidence is that he and Richard left Sdraulig and his clients to discuss and consider their response. This accords with Manjula's evidence where she described two meetings at the lawyer's office, one with and one without Richard's lawyer present.

278 Sheppet's recollection and the file note records Kavitha saying she had put a lot of effort into the farm and she did not agree Richard had a right to sell it. To the extent Kavitha explained this view at the time, the note referred to a power supply line and work to fix the driveway. Both of these are in all likelihood references to work undertaken after her release from prison. Kavitha relies on this comment in support of Manjula's evidence that - at two subsequent meetings with Richard - Richard accepted a price at about a quarter of the valuation presented at the earlier meeting.

279 It is improbable that Kavitha's comment was anything more than an expression of her desire to stop the farm being sold to a third party. I reject the submission that this conveyed an assertion of an interest in the farm. Kavitha and her parents were legally represented at the meeting by Sdraulig and I would expect that he would have spoken to address any beneficial interest arising from contributions either financial or indirect that might impact on price. Sdraulig was not called to give evidence about the events in September 2017. Sheppet's contemporaneous note and recollection in oral evidence was of Richard's statement to the meeting that 'I've paid for the farm, I've paid 100% for the farm. I've serviced the debt. I want it sold' was not challenged as unconscionable at the time it was made, nor in subsequent correspondence between Sdraulig and Sheppet.

280 I reject the evidence of a subsequent oral agreement with Richard as a fabrication. In light of the documents, Kavitha's and Manjula's oral evidence of a subsequent oral agreement to buy the farm for $1 million or $1.2 million with Richard is self-serving and completely implausible. Kavitha's evidence is that she and her parents went into the meeting thinking that $3.2 million as had been agreed in 2015 was 'a bit steep'. Consistent with this it is no great leap to accept that a further increased valuation might be also considered 'steep' by Kavitha and her parents. The idea that Richard would then agree to an amount of $1.2 million, yet not communicate this with Sheppet, is fanciful.

281 After the meeting on 1 September 2017, the documents demonstrate that Richard and his lawyer were waiting on a proposal from Kavitha and her parents. Nothing had been agreed and, as Manjula described, she intended to return to Australia in February 2018 'to decide about the farm'. Insofar as further payments were made after the September meeting into the ANZ joint account, I accept that payments, both before and after 1 September 2017, were made on the understanding of all parties that they were held to be put towards the purchase of the farm as and when a price was agreed and a contract signed. I find that agreement was not reached at 1 September 2017 meeting and was not concluded subsequently.

282 It follows from these findings of fact that there was no promise or common intent in January 2005 that Kavitha would hold a one-third interest in the farm. The agreement formed in July 2004 between Colin, Richard and Kavitha did not persist at the time of settlement of the farm. The documents are contrary to any inference that a common intent persisted. Kavitha has not established that at settlement Richard intended or promised, despite non-payment of her one-third contribution, that he would hold a one-third interest in the farm for her benefit.

283 I am also not satisfied that in 2006 Richard and Kavitha formed a second common intent, or Richard made a promise, that Kavitha now held an equal beneficial interest in the farm. This is because in 2006, Richard alone funded the purchase of Colin's half share interest and paid out Colin's cash contribution.

284 Absent an equitable interest arising from an earlier representation or promise in 2004 and/or 2006, the comments at the time of rezoning that Kavitha relies on are insufficiently precise in themselves to confer an interest in land. In any event, the thrust of Kavitha's evidence is that she continued farming and the arrangements were unchanged. There is no evidence that demonstrates Kavitha acted to her detriment in reliance on those representations in 2006 or 2009. Those comments may say something about whether a constructive trust arises based upon contributions made during the relationship. I turn to this element of Kavitha's claim.

285 Kavitha alleges that she made contributions during the relationship for the common benefit of the relationship and that it would be unconscionable for Richard to deny a beneficial interest as to the value of those contributions.

286 As Kaye J (as he then was) explained in Cressy,[267] the purpose of imposing a constructive trust on personal relationships is to remedy an unconscionable assertion of legal rights by one to the exclusion of contributions of the other. It recognises that the relationship in question is not merely commercial but also personal.

287 Therefore relevant contributions are not limited to financial contributions direct or indirect but encompass an accounting of other ways that a contribution might be made because of the features of the relationship. Lloyd v Tedesco,[268] quoted as part of Kaye J's analysis at paragraph [195] in Cressy, described the contributions in a domestic relationship as:

A joint endeavour of this character is one which has the aim of adding to the parties' material wealth for their mutual benefit rather than being one where the plaintiff simply provides loving care and support to the defendant as a normal incident of a de facto relationship. In that sense it is right to say that the joint endeavour must be one intentionally or deliberately entered into for the purpose of advancing the parties' mutual material wealth. Only if it bears that character will it be unconscionable to allow the defendant to retain the entirety of the beneficial interest in that wealth.[269]

288 The starting point is the particular relationship and its factual arrangements. Richard and Kavitha did not pool financial resources or assets. They had no children, and did not divide responsibilities between housework and financial provision. Rather, Kavitha appeared to give up her landscaping and importing interests because she preferred to farm instead. The farm was purchased by the Moores Rd Trust to which Richard contributed 50% initially and then 100%. Richard also financially contributed to the market garden business and an associated shop for a time as did Kavitha. Overall there was an endeavour arising from the relationship operating the market garden business on the farm and for a time from a leased shop. Kavitha remained committed to this beyond the end of her relationship with Richard. Richard's comment that the farm was never overly profitable was perhaps an understatement in light of accumulated losses of Clyde Market Gardens by June 2010 of $160,662 funded by loans from Richard. Richard's description of the farm as an 'ongoing financial burden' is borne out by the documents.

289 While I have found that Kavitha (herself or by her parents) did not make any contribution to the acquisition of the farm, I accept that she has made some contribution to what might be termed its maintenance and improvement as well as to the business that operated there, both directly from cash provided by her parents from time to time and indirectly by living at and organising the business . Most of the documented expenses Kavitha relies on relate to maintenance and repair of equipment, or contractor expenses. In total, the invoiced expenses tendered that were incurred prior to July 2012 amount to approximately $17,000. Kavitha has made no real attempt to identify those that relate to maintenance or holding costs of the farm itself prior to June 2012. As to the frequency of draining the sump dam, Lightowler could not recall any details and estimated only one more visit to mid-2012, contrary to Kavitha's estimate of visits every two years. Kavitha did not actually give evidence that she paid for most of the works she identified prior to 2012.

290 At best, assuming in Kavitha's favour that all of the invoiced amounts are properly contributions that are to be taken into account and accepting that on the three visits to Australia in 2006 and 2007, Kavitha's parents brought with them and gave her $20,000 on each occasion that she used in relation to expenses associated with the farm, the evidence as to contribution to maintenance or improvement prior to 2012 amounts to something less than $80,000. To the extent that all or some proportion of this may properly be characterised as contributing to maintenance or improvement of the farm, then the question arises whether it would be unconscionable for Richard to deny that contribution.

291 With any contribution being made during the relationship, it is also relevant to consider the benefits Kavitha gained following the end of the relationship. I accept Richard's characterisation of the arrangements at that time that Kavitha was permitted to continue to live at the farm and grow crops up until the time Richard learned she was arrested. There was no evidence Kavitha was required to make any payment to Richard from income she generated. There is also no suggestion that Kavitha provided to Richard any of the money she received through the sharecropping arrangements with the Azemi brothers from 2011 onwards. To the contrary it appears she was retaining the benefit of cash received, both during the relationship and after it ended. The permission to remain using the farm was in the context of a promise to negotiate the purchase of the farm at a price to be agreed.

292 Expenses incurred in maintaining the farm after 2012 cannot be considered a contribution made in the furtherance of a joint endeavour arising out of the domestic relationship. They are relevant only if an equitable interest arose from a promise made or expectation encouraged by Richard. I put them to one side.

293 For the following reasons I am not persuaded that it would be unconscionable for Richard to assert his legal right to Kavitha's exclusion. First, there is no reason to conclude that Richard's sworn statements as to ownership were incomplete or denied Kavitha's interest. While in 2014 and 2015 in the context of confiscation proceedings, Richard might be careful to explain only his own interest, his statements at that time asserting sole ownership of the farm are consistent with his sworn statement in 2006 that only he and Colin held legal and beneficial interest. Second Richard did assert his legal right in placing the property on the market for sale in 2014 or 2015 when there had been no advancement on a promise to negotiate a purchase prior to Kavitha's arrest. The response to this action was an offer to purchase at full commercial value at the time. Third, Richard did assert his legal right by his statement in the meeting on 1 September 2017 and Kavitha and her lawyers did not challenge him when he did so. Fourth, the broader context of their domestic relationship demonstrates that in addition to paying the purchase price and servicing the debt on the farm, Richard supported Kavitha financially to assist her and her parents to settle Kavitha's interest in the East Bentleigh house becoming a joint borrower of loan funds for that purpose. He derived no financial advantage in doing so and incurred additional expense. Fifth, he sustained losses incurred by the unprofitable nature of the market garden business that Kavitha had been managing. To the extent Kavitha generated cash that contributed to the business, it is likely that she also sustained loss.

294 In my view, the extent of Kavitha's financial contributions to the maintenance and improvement of the farm, through her own efforts or the largesse of her parents prior to 2011, are to a large extent offset by Richard's agreement that Kavitha remain living at the farm for two years until her arrest in 2014 and return to live on the farm on release from prison pending the negotiation of a sale as she requested. As far as the evidence revealed Richard received no income from the farm after 2012.

295 It is also relevant, looking at the overall financial and domestic arrangements between the parties that Richard made financial contributions to enable Kavitha to acquire assets in her own name agreeing to be a joint borrower of the Chipperton settlement loan, and servicing interest repayments for three years and a further period of interest and capital repayment. Although this financial commitment to Kavitha's advantage was commenced during the relationship, Richard continued the arrangement between 2011 and 2015 to accommodate Kavitha's interests at financial cost to himself.

296 These overall circumstances of the relationship do not make it unconscionable for Richard to deny an equitable interest in the land from Kavitha's contributions arising from the substratum of their relationship.

297 In the circumstances of this case, where it was Kavitha who instigated and drove the purchase of the farm, funded by others, to express her passion for farming, I do not accept that her actions in farming the land as she wished to do amounted to something that advanced the mutual wealth of the parties.

298 As I am not satisfied that Kavitha has established an equitable interest in the farm, it is not necessary to say anything about the equitable defence of laches.

299 It follows from my findings that the defendant succeeds on his counterclaim for mense profits from 7 August 2019 to 25 August 2020. They were claimed at $500 per week based upon the valuation report of Bertacco Ferrier dated 2 October 2020,[270] which was not disputed.

300 Thereafter the parties agree that occupation costs to the date of trial that are payable in accordance with my findings are $38,000. Occupation costs after that date are to be determined.

301 Finally, I will hear from the parties as to the form of the orders.

[1] Transcript of Proceedings, Kavitha Siddiah Gurappaji v Caylen Duncan (in his capacity as the trustee of Moores Road Unit Trust), (Supreme Court of Victoria, S ECI 2019 00999, Justice Forbes, 13 September 2022- 27 September 2022; 6 October 2022) 837.2 ('T').

[3] Contract of sale of land, which forms part of tendered Exhibit 2 in Kavitha Siddiah Gurappaji v Caylen Duncan (in his capacity as the trustee of Moores Road Unit Trust) S ECI 2019 00999, 3131-3200.

[4] Recording and Transcript of De Bene Esse examination of Ingrid Phillips dated 6 November 2020, which together constitute Exhibit 4 in Kavitha Siddiah Gurappaji v Caylen Duncan (in his capacity as the trustee of Moores Road Unit Trust) S ECI 2019 00999**.**

[10] Settlement occurred on 19 March 2001.

[12] Affidavit of Richard Phillips sworn 24 March 2015, in the matter of an alleged offender, Kavitha Gurappaji CI-14-06305, which forms part of tendered Exhibit 2, 1512-1600, [10].

[15] Terms of Settlement between Kavitha Gurappaji and Frank William Penhauluriack dated 24 June 2008, which forms part of tendered Exhibit 2 in Kavitha Siddiah Gurappaji v Caylen Duncan (in his capacity as the trustee of Moores Road Unit Trust) S ECI 2019 00999, 1817-1823.

[16] Supplementary Terms of Settlement between Kavitha Gurappaji and Frank William Penhauluriack dated 20 June 2011, which forms part of tendered Exhibit 2, 1996-1999.

[17] Affidavit of Richard Phillips sworn 24 March 2015, [10].

[19] Statement of Richard Berian Phillips dated 22 December 2014, which forms part of tendered Exhibit 2, 2146-2149.

[35] Contract Note dated 6 July 2004, which forms part of tendered Exhibit 2, 1602-1604.

[38] Historical title search of Certificate of Title Volume 8846 Folio 747, which forms part of tendered Exhibit 3 in Kavitha Siddiah Gurappaji v Caylen Duncan (in his capacity as the trustee of Moores Road Unit Trust) S ECI 2019 00999, P167-P170.

[46] Bank Statement of Richard Phillips account number 566289, which forms part of tendered Exhibit 2, 399-400.

[47] Letter from Bank of Melbourne to Richard Phillips dated 14 December 2004, which forms part of tendered Exhibit 2, 1606-7.

[48] Power of Attorney by Richard Phillips to Kavitha Gurappaji dated 15 December 2004, which forms part of tendered Exhibit 2, 1616-17.

[49] Moores Road Unit Trust Deed dated 23 December 2004, which forms part of tendered Exhibit 2, 1618.

[51] Power of Attorney by Richard Phillips to Kavitha Gurappaji dated 13 January 2005, which forms part of tendered Exhibit 2, 1662.

[52] Presumably a typographical error in the letter which should read 2005. The updated contract note was not in evidence.

[53] Letter from Alan Sheppet & Associates to Gilberthorpes dated 3 February 2006, which forms part of tendered Exhibit 2, 1699.

[54] Fair Legal Invoice dated 20 January 2005, which forms part of tendered Exhibit 2, 1665.

[55] Notice of acquisition of interest in land dated 21 January 2005, which forms part of tendered Exhibit 2, 1666.

[56] Statement of Adjustments as at 21 January 2005, which forms part of Exhibit 2, 1664.

[57] Relevant bank statements forming part of Exhibit 2, as identified by an aide memoire handed up to the Court titled 'Farm Purchase funding' (specifically, page 4).

[61] Statement of Adjustments as at 21 January 2005, which forms part of Exhibit 2, 1664.

[83] Affidavit of Plaintiff sworn 5 March 2019, [62].

[84] Plaintiff, 'Affidavit of Plaintiff' sworn on 18 September 2019 in Kavitha Siddiah Gurappaji v Caylen Duncan (in his capacity as the trustee of Moores Road Unit Trust) S ECI 2019 00999, [8].

[99] Incoming passenger card of Sarita Kulkarni dated 20 December 2005, which forms part of tendered Exhibit 2, 2956.

[106] Statement of Richard Berian Phillips dated 22 December 2014, which forms part of tendered Exhibit 2, 2146-2149.

[107] These figures are taken from the 2007 Income Statement, which is part of the financial report compiled by Michael Carley of Flinders Partners Group. This financial report forms part of tendered Exhibit 2, 1780-1800**.**

[111] Deed of retirement of trustee dated 18 May 2006, which forms part of tendered Exhibit 2, 1703.

[113] Letter from Alan Sheppet & Associates to Gilberthorpes dated 3 February 2006, which forms part of tendered Exhibit 2, 1700.

[114] Deed of retirement of trustee dated 18 May 2006, which forms part of tendered Exhibit 2, 1754.

[115] Bank Bill Business Loal Statement account number 192855, which forms part of tendered Exhibit 2, 1382.

[116] Account statement of Richard Berian Phillips account number 487132 which forms part of tendered Exhibit 2, 1114 and Account statement of Richard Berian Phillips account number 939270 which forms part of tendered Exhibit 2, 1196.

[117] Account statement of Richard Berian Phillips Colin Thompson account number 66558151, which forms part of tendered Exhibit 2, 1374 and Account statement of Richard Berian Phillips and Colin Thompson account number 63882877 which forms part of tendered Exhibit 2, 1380.

[120] Clyde Market Gardens Pty Ltd Financial Report for year ended 30 June 2007, which forms part of tendered Exhibit 2, 1780-1800.

[121] Clyde Market Gardens Pty Ltd Financial Report for year ended 30 June 2008, which forms part of tendered Exhibit 2, 1825-1846.

[122] Clyde Market Gardens Pty Ltd Financial Report for year ended 30 June 2009, which forms part of tendered Exhibit 2, 1857-1880; and Clyde Market Gardens Pty Ltd Financial Report for year ended 30 June 2010, which forms part of tendered Exhibit 2, 1881-1927.

[123] Clyde Market Gardens Pty Ltd Financial Report for year ended 30 June 2010, 1887.

[125] Account statement of Richard Berian Phillips account number 192855, which forms part of tendered Exhibit 2, 1381-1462.

[126] Statement of Richard Berian Phillips dated 22 December 2014, which forms part of tendered Exhibit 2, 2146-2149.

[132] Statement of Richard Berian Phillips dated 22 December 2014, which forms part of tendered Exhibit 2, 2146-2149.

[137] Receipts were identified by an index handed up to the Court as an aide memoire headed 'Receipts for work on property'. The relevant receipts were tendered as part of Exhibit 2.

[138] Exhibit 1, AGL Account Statement for 134 Moores Road Clyde VIC for the period 24 October 2018 to 19 September 2022.

[144] T 337.28-30, although later she gave evidence that this was in 2013 (see T 352.10-13).

[145] Statement of Richard Berian Phillips dated 22 December 2014, which forms part of tendered Exhibit 2, 2146-2149.

[146] Affidavit of Richard Berian Phillips sworn on 24 March 2015.

[149] 'Kavitha Money', undated, which forms part of tendered Exhibit 3P7-13 and a number of corresponding Westpac payment summaries, also in Exhibit 3.

[151] Statement of Richard Berian Phillips dated 22 December 2014, which forms part of tendered Exhibit 2, 2146-2149.

[156] Statement of Richard Berian Phillips dated 22 December 2014, which forms part of tendered Exhibit 2, 2146-2149.

[163] There was evidence from Kavitha that Lalie was an international student who stayed for a time at the East Boundary Rd house.

[166] Statement of Richard Berian Phillips dated 22 December 2014, which forms part of tendered Exhibit 2, 2146-2149.

[167] Affidavit of Richard Berian Phillips sworn on 24 March 2015, [18], [19].

[169] See 'Kavitha Money', which forms part of tendered Exhibit 3, P11-P17.

[172] 'Kavitha Money', which forms part of tendered Exhibit 3, P11-P17.

[176] Letter from Kavitha to Richard dated 19 October 2015, which forms part of tendered Exhibit 2, 2217.

[177] Email from Richard Phillips to Siddiah Gurappaji and Majula Devi dated 19 October 2015, which forms part of tendered Exhibit 2, 2214.

[178] Email from Siddiah Gurappaji to Richard Phillips dated 19 October 2015, which forms part of tendered Exhibit 2, 2218.

[179] Email from Richard Phillips to Alan Sheppet dated 20 October 2015, which forms part of tendered Exhibit 2, 2218.

[180] Email from Richard Phillips to Siddiah Gurappaji and Manjula Devi dated 20 October 2015, which forms part of tendered Exhibit 2, 2219.

[181] Email from Richard Phillips to Robert Sdraulig dated 18 November 2015, which forms part of tendered Exhibit 2, 2350.

[182] Email from Manjula Devi to Richard Phillips enclosing contract dated 21 November 2015, which forms part of tendered Exhibit 2, 2355-2361.

[184] Email from Richard Phillips to Manjula Devi dated 3 December 2015, which forms part of tendered Exhibit 2, 2367.

[186] Letter from the Foreign Investment Review Board to Robert Sdraulig dated 4 December 2015, which forms part of tendered Exhibit 2, 2375.

[187] Email from Richard Phillips to Alan Sheppet dated 4 February 2016, which forms part of tendered Exhibit 2, 2379.

[188] ANZ account statement of Richard Phillips and Kavitha Gurappaji account number 26938531 from 3 December 2015 - 3 October 2017, which forms part of tendered Exhibit 3, P142-P157.

[189] ANZ account statement of Richard Phillips and Kavitha Gurappaji account number 26938531 from 3 October 2017 - 2 February 2018, which forms part of tendered Exhibit 3, P158-P160.

[190] Exhibit 4, transcript of examination 6-7.

[191] Ibid, transcript of examination 7-8.

[192] Ibid, transcript of examination 8-9.

[194] File note of Alan Sheppet dated 1 September 2017, which forms part of tendered Exhibit 2, 3015N.

[204] Email from Alan Sheppet to Robert Sdraulig dated 18 September 2017, which forms part of tendered Exhibit 2, 2505.

[211] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 612 ('Muschinski')

[212] Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413, [402].

[213] Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336, [119] (Leeming JA); Zekry v Zekry [2020] VSCA 336, [76].

[214] Sidhy v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 ('Sidhu v Van Dyke').

[215] Donis v Donis [2007] VSCA 89; (2007) 19 VR 577, 594.

[216] Sidhu v Van Dyke (n 214); Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 ('Waltons Stores').

[217] Ramsden v Dyson & Anor [1866] UKLawRpHL 7; (1866) LR 1 HL 129 (Lord Kingsdown).

[224] [1987] HCA 59; (1987) 164 CLR 137.

[225] Ibid [35] (Mason CJ, Wilson and Deane JJ).

[226] [2009] VSC 52.

[227] Ibid [197] (Kaye J) (emphasis added).

[228] [1995] NSWCA 497; (1995) 49 NSWLR 315, 319 ('Watson v Foxman').

[230] [2022] NSWSC 923, [73]-[93] ('Pollock').

[231] Pollock (n 230) [74], citing Warner v Hung [2011] FCA 1123; (2011) 297 ALR 56; and NOM v Director of Public Prosecutions (2012) 38 VR 16, [106]-[109].

[232] Ibid [76], quoting Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7].

[233] Ibid [78], quoting Thomas v Times Book Co [1966] 2 All ER 241 at 244.

[234] Thomas v Times Book Co [1966] 2 All ER 241 at 244.

[235] Pollock (n 230) [83] quoting Webb v Ryan [2012] VSC 377, [22].

[238] Ibid [88], ] quoting Kogan v Martin [2019] EWCA Civ 1645.

[239] In her affidavit sworn 5 March 2019.

[245] Plaintiff, Amended Further and Better Particulars dated 24 February 2020, [5].

[247] Further Amended Statement of claim filed 5 October 2022.

[248] That exception covers payments in February and March 2005 totalling approximately $3,500 which Richard gave instructions were to be refunded to Colin.

[249] Plaintiff, Amended Further and Better Particulars dated 24 February 2020.

[253] Richardson v Armistead [2000] VSC 551, [36].

[255] Plaintiff, Further and Better Particulars of Statement of Claim dated 20 December 2019.

[262] Affidavit of Richard Berian Phillips sworn on 24 March 2015, [21].

[263] The evidence discloses that this conviction was recorded on 29 May 2009.

[264] A conviction on such a charge was recorded in June 2012.

[265] Those explanations included (1) that it represented losses on the shop and the purchase price of the farm (T 344), (2) to payout the Chipperton settlement loan and repay losses on the shop (T 629) and (3) to cover what Richard paid for the farm.

[268] [2002] WASCA 63; (2002) 25 WAR 360.

[270] Which forms part of tendered Exhibit 2, 280-326.