Plaintiff v First Defendant

RESTITUTION - Where first defendant claims restitution of sum of $650,000 - Money had and received claim rejected - Money paid at plaintiff's request claim successful.

INTEREST - Court's 'free-standing' power to award interest at common law or equity not established - Date from when interest on restitutionary amount applies - Interest awarded under ss 58, 60 of Supreme Court Act 1986 - Principles for determination of interest award.

Limitations of Actions Act 1958, ss 5, 8 - Property Law Act 1958, ss 53, 228, 234 - Trustee Act 1958, s 48 - Penalty Interest Rates Act 1983, s 2 - Supreme Court Act 1986, ss 58, 60 - Browne v Dunn (1893) 6 R 67 - David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 - Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 - Bayport Industries Pty Ltd v Watson [2002] VSC 206 - Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568 - Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 - Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635 - Sempra Metals Ltd v Inland Revenue Commissioners [2007] UKHL 34; (2008) 1 AC 561 - Whittlesea City Council v Abbatangelo [2009] VSCA 188; (2009) 259 ALR 56 - ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76 - Prudential Assurance Company Ltd v Commissioners for Her Majesty's Revenue and Customs [2018] UKSC 39 - Diransson Pty Ltd v Hassan El Dirani [2019] NSWSC 617 - Australia Kunqian International Energy Co Pty Ltd v Flash - Lighting Company Ltd [2020] VSCA 259 - Stephens v Cameron [2021] VSCA 208 - Stone v Kramer [2021] NSWSC 1456 - Kramer v Stone [2023] NSWCA 270 - Redland City Council v Kozik [2024] HCA 7.

A. Introduction & outline of issues for determination

1 The plaintiff in this proceeding, Vanessa Amorosi, is a successful singer who came to national prominence when, as a 19 year old, she sang at the opening ceremony of the 2000 Olympic Games held in Sydney. The previous year, Ms Amorosi had released her first single while still at school and living at home with her family at 7 McKenzie Lane in Narre Warren North (McKenzie Lane).

2 Following her performance at the Olympic Games, in 2000 Ms Amorosi released her first album, 'The Power', and then toured the world. She found immediate commercial success, earning in excess of $2 million in income in the 2000-2001 financial year.[1]

3 Some of these funds were used to purchase a 20 acre semi-rural property at 219 Boundary Road, Narre Warren North (Boundary Road) for $650,000 on 12 February 2001. When settlement of the purchase occurred on 11 April 2001, both Ms Amorosi and her mother, Joyleen Robinson, the first defendant in this proceeding, were registered on the title of the property as tenants in common in equal shares. This remained the situation at trial.

4 The principal issue in the proceeding is Ms Amorosi's claim that she and Mrs Robinson had the common intention that Mrs Robinson would hold her interest in Boundary Road on trust for Ms Amorosi and that therefore Mrs Robinson holds her interest in the property on constructive trust for her.[2] Ms Amorosi seeks that the Court make a declaration to this effect.

5 Critical to the determination of this issue is whether the Court accepts Mrs Robinson's defence[3] that, about a week before Boundary Road was purchased in February 2001, she and Ms Amorosi agreed in a conversation in the kitchen at McKenzie Lane that Ms Amorosi would fund the acquisition of Boundary Road for Mrs Robinson's sole use and benefit, with each of them being registered on the title as tenants in common in equal shares, but with Ms Amorosi holding her share on trust for Mrs Robinson (the Narre Warren agreement). Mrs Robinson alleges that, as part of this agreement, it was agreed that, in consideration for receiving Boundary Road for her sole use and benefit, she would pay Ms Amorosi $650,000 upon request by Ms Amorosi.

6 Ms Amorosi denies that she made any agreement with Mrs Robinson to the effect of the Narre Warren agreement.

7 Before further outlining the other issues for determination, it is necessary at this point to say something about the second defendant, Llama Investment Holdings Pty Ltd (Llama). Llama was incorporated on 21 September 2001, with Mrs Robinson its sole director and shareholder. It was, and is, the trustee of the Llama Investment Trust (the Llama trust), a discretionary trust created on 21 September 2001. Mrs Robinson is the appointor of the Llama trust and she and her family members, including Ms Amorosi, are beneficiaries. Since about 2014, Peter Robinson, Mrs Robinson's husband and Ms Amorosi's stepfather, has been the sole director of Llama.

8 Since its inception, Llama as trustee of the Llama trust, has been the registered proprietor of a number of real properties, including, since 2015, Ms Amorosi's home in California in the United States.

9 Ms Amorosi alleges that at all relevant times there was a common intention as between her, Llama and Mrs Robinson that, subject to the repayment of loans, the property and other assets of Llama were to be held on trust for her alone. She seeks declaratory relief to this effect and orders appointing her as trustee of the Llama trust in lieu of Llama.

10 Although the defendants denied this claim in their pleading and in the opening of their case, the denial was jettisoned by Mrs Robinson and Mr Robinson in their evidence to the Court. In cross-examination, Mrs Robinson acknowledged, without hesitation or qualification, that the Llama trust was set up to protect Ms Amorosi's assets, and that it was always intended to be for Ms Amorosi's benefit. Mrs Robinson gave evidence that she had no objection to Ms Amorosi controlling the Llama trust, subject to her also assuming responsibility for its loans. As at August 2023, Llama had an outstanding loan account to Westpac Banking Corporation of $649,963, with interest accruing at 7.83% (the Westpac loan).

11 In light of Mrs Robinson's evidence, which was consistent with the evidence given by Mr Robinson and Ms Amorosi, Ms Amorosi is entitled to appropriate declaratory relief in relation to her claims in respect of Llama and the Llama trust.

12 Returning to the Narre Warren agreement, as I have noted, Mrs Robinson pleaded that it included a promise by her to pay Ms Amorosi $650,000 upon request. By an Amended Counterclaim filed on 12 October 2023 (the Counterclaim), Mrs Robinson alleged that she made this payment on 23 May 2014, and is accordingly entitled to an order that Ms Amorosi specifically perform the said agreement, or alternatively an order that the whole of the Boundary Road property has been vested in her. This claim rested on the fact that, after Mrs and Mr Robinson sold their home at McKenzie Lane, on 23 May 2014 Mrs Robinson paid $710,790.98 off the balance of Llama's Westpac loan. That loan had been established in about April 2012 when Llama, on behalf of the Llama trust, had borrowed $1.2 million from Westpac to fund the purchase of Ms Amorosi's first home in the United States in Saddlebow Road in California (Saddlebow Road).

13 For the reasons I explain in Section C below, Mrs Robinson has not persuaded me as to the existence of the Narre Warren agreement; I find there was no such agreement as alleged. Mrs Robinson's claim for an order for specific performance in respect of the Narre Warren agreement accordingly fails.

14 In the alternative to her defence to Ms Amorosi's claim in respect of Boundary Road based on the Narre Warren agreement, the defendants advanced a claim of adverse possession in relation to Boundary Road.[4] It was pleaded that Ms Amorosi left and vacated the property in August 2005, since which time Mrs Robinson has intended, and has in fact, possessed the property to the exclusion of Ms Amorosi. On that basis it is alleged that Mrs Robinson is entitled to possession of Boundary Road and Ms Amorosi is unable to recover possession of it by operation of s 8 of the Limitation of Actions Act 1958. I have determined that this claim must fail for the reasons set out in Section D below.

15 Following upon these conclusions, for the reasons set out in in Section E below, I have determined that Ms Amorosi is entitled to the primary relief she seeks in respect of the declaration of a common intention constructive trust over Mrs Robinson's share of the Boundary Road property.

16 In circumstances where, as I have found, Ms Amorosi succeeds in her claim in relation to Boundary Road and where Mrs Robinson fails in her claims in relation to the property, Mrs Robinson seeks by her Counterclaim restitution of the $650,000 she paid for Ms Amorosi's benefit (the $650,000 payment). [5] For the reasons given in Section F of these reasons, Mrs Robinson has succeeded in this claim.

17 In the event, as I have found, that Mrs Robinson is entitled to restitution in the amount of $650,000, the parties are in dispute as to the interest rate to be applied to that amount and the date from when interest is payable. For the reasons given in Section G of these reasons, I have determined that Mrs Robinson is entitled to interest at the rate of 10%, being the rate prescribed by s 2 of the Penalty Interest Rate Act 1983, on the amount of $650,000 for the period from when the proceeding was commenced on 25 March 2021 until the date of judgment. This equates to an amount of $219,486.33.

18 Ms Amorosi was born on 8 August 1981. She is one of three children of Mrs Robinson and Frank Amorosi.

19 After the marriage between Mrs Robinson and Frank Amorosi ended, Mrs Robinson married Peter Robinson in about 1995. They had one son together. In about 1997, they purchased, with their own funds, the property at McKenzie Lane where they then lived with their four children. Mrs Robinson has worked for many years as a cleaner and Mr Robinson as an electrician.

20 While she was still at secondary school, Ms Amorosi started singing a few times a week at a Russian restaurant in Carnegie. Ms Amorosi's talents were soon noticed and, in about 1997, she retained her first managers and released her first single in about 1999.

21 Vanjoy was incorporated on 7 September 1999 and was the corporate vehicle which received the income and royalties from Ms Amorosi's performing career. Immediately after its establishment, Mrs Robinson was the sole director of the company; she and Ms Amorosi were the shareholders.

22 Vanjoy became the trustee of the Vanjoy Family Trust, a discretionary trust established on 30 January 2001 of which Mrs Robinson and her family members, including Ms Amorosi, were beneficiaries. Ms Amorosi was the appointor of the trust.

23 As I have noted, Boundary Road was purchased for $650,000 on 12 February 2001, and the contract of sale settled on 11 April 2001. The purchase was funded with a deposit of $64,000 paid by Vanjoy and, upon settlement, Vanjoy paid a further $186,134.32 (plus stamp duty), with the remaining $400,000 financed by a bank loan. Vanjoy repaid the bank loan in full about six weeks after settlement.

24 After it was purchased, Mrs Robinson and Mr Robinson and their four children, including Ms Amorosi, all moved into and began living in the Boundary Road property which was then comprised of a single large dwelling. It has since been, and remains, Mr and Mrs Robinson's residence. Mr and Mrs Robinson subsequently funded and undertook a number of improvements to the property: an enclosed in-ground pool (with a room above) was built; a concrete driveway was laid; a sauna installed; and a barn and large deck were built.

25 In about 2002, a small kit home was purchased and built down the hill on the Boundary Road property, away from the main dwelling. Mr Robinson undertook the fit out of the structure which was known as Ms Amorosi's 'studio'. The studio was two storeys with a kitchen and bedroom on the lower level and a music studio on the upper level. After it was assembled, Ms Amorosi moved from the main dwelling on the Boundary Road property into the studio where she lived and wrote music. She remained a frequent visitor to the main dwelling.

26 Mrs and Mr Robinson retained McKenzie Lane after the family moved into Boundary Road. For a period of at least two years, the property was rented out to tenants who Mrs Robinson knew from the local community who were in urgent need of accommodation and who paid only modest rent.

(a) Road Runner Touring Co Pty Ltd (Road Runner) was incorporated with Ms Amorosi as sole shareholder and director.[6] Road Runner later replaced Vanjoy as trustee of the Vanjoy Family Trust in about April 2003.

(b) Llama was incorporated and the Llama trust established, with Llama as trustee.

28 In broad terms, the purpose of these structures was for the Vanjoy Family Trust to provide asset protection, with Road Runner (replacing Vanjoy) receiving Ms Amorosi's income from touring and performances. Llama, as trustee for the Llama Trust, was set up specifically to hold assets for Ms Amorosi.

29 These structures were established on the advice of Ken Tuder, an accountant with the firm Crabb Tuder. Mrs Robinson and Ms Amorosi consulted with him on the recommendation of one of Ms Amorosi's early managers. In a letter to Mrs Robinson and Ms Amorosi in October 2001, Mr Tuder explained that the purpose of Road Runner was to replace Vanjoy as the trustee of the Vanjoy Family Trust 'to provide asset protection' and that Road Runner had been specifically created to receive touring and performance income. He also explained that the purpose of Llama as trustee for the Llama Trust was specifically to hold assets for Ms Amorosi.

30 In about 2005, Ms Amorosi moved from the studio at Boundary Road to a farmhouse at 175 Bayview Road, Officer (the Officer property). Ms Amorosi was attracted to the Officer property because its acreage would permit her to maintain horses about which she has a passionate interest. She lived at the Officer property until she moved to the United States in about 2011. The property was purchased by Llama and financed through a loan arranged by Mrs Robinson.

31 On 21 June 2005, Mr Tuder sought legal advice in relation to the purchase of the Officer property as well as in relation to Boundary Road. Only the second aspect of the request is presently relevant. In that regard, Mr Tuder relevantly stated as follows in a letter to the solicitors who had been engaged, Pointon Partners:

The second part of your brief will be to advise on Boundary Road, the property where both Joy and Vanessa are currently residing. As half of the property is registered in Vanessa's name this may pose a problem if she is ever sued or has a marriage breakdown. The property is estimated to be worth around one million dollars. We have been advised by Joy Robinson that this property really does belong to Joy in its entirety.

...

Would you kindly advise whether a bare trustee document could be put in place in relation to Boundary Road to evidence the true intention of the parties at the time of purchase which is for Joy to have 100% ownership of Boundary Road and also advise on any associated problems of doing such.

Although the letter states that it was copied to both Mrs Robinson and Ms Amorosi, Ms Amorosi's evidence was that she could not recall receiving a copy of it, or discussing its contents with Mr Tuder.

32 The written advice which was later provided by Pointon Partners on 29 July 2005, which states that a copy was provided to Mrs Robinson, refers to the above instructions that Boundary Road is 'really Joy's property'. Amongst other things, Pointon Partners advised that, if Mrs Robinson and Ms Amorosi considered that Boundary Road was solely Mrs Robinson's, this could be documented by the execution of a bare trust confirming that, since it was first acquired, Ms Amorosi had been holding her interest in Boundary Road as a bare trustee for Mrs Robinson.

33 Mrs Robinson's unchallenged evidence was that she and Ms Amorosi spoke about this advice from Pointon Partners and agreed that, for the time being, they would 'put on hold' the advice for the execution of a bare trust. Ms Amorosi could not recall receiving the advice from Pointon Partners, or discussing it with Mr Tuder.

34 As I have mentioned, in 2011 Ms Amorosi moved to the United States to further her career. In about April 2012, she asked Mrs Robinson if she could buy a house. Mrs Robinson said 'yes', but that it would have to be through 'the company'. In April 2012, Llama, as trustee for the Llama trust, purchased Saddlebow Road for A$1.27 million, of which $1.2 million was borrowed by Llama through the Westpac loan secured by a mortgage over Boundary Road.

35 Soon after Saddlebow Road was purchased, while Ms Amorosi was visiting Australia, she and Mr and Mrs Robinson had a conversation in the kitchen at Boundary Road in which Ms Amorosi said it was time to sell some assets. The issue arose because of the need to raise funds to service the Westpac loan. Mr Robinson asked Ms Amorosi which property she wanted to sell, and that he and Mrs Robinson did not care which one was sold. Ms Amorosi told them to sell McKenzie Lane.

36 However, Mr Robinson considered that the sale of McKenzie Lane, rather than Boundary Road, would be prejudicial to Ms Amorosi's financial interests because it would likely raise a significantly smaller amount of money than the sale of Boundary Road; the latter option, if adopted, might have been sufficient to pay off the Westpac loan. To 'ease his conscience', and to make sure Ms Amorosi understood the difference in the financial outcomes between the two options, Mr Robinson sought to give Ms Amorosi the opportunity of instead selling Boundary Road. He sent her the following email on 11 September 2012:

Hi Vanessa

Had realestate [sic] price both mckenzie lane and boundary road. Bottom line is simply this

Sell mckenzie lane you will still have money owing on your American 1.2 mil loan

Sell boundary road and hopefully your American loan can be paid out fully

And there is still half a million owing on officer please let me know which property to sell

As you know both properties need work for sale and once I know which one you want sold we can get it on the market by December.

Please let me know which one

...

37 The email did not result in any change of mind on the part of Ms Amorosi. After Mr Robinson undertook some limited renovations of McKenzie Lane (ultimately funded from the proceeds of sale), he and Mrs Robinson sold the property in May 2014 for $840,000.

38 From the proceeds of sale of McKenzie Lane, $710,790.98 was used to pay down the Westpac loan. Ms Robinson's evidence was that this payment was made because of the Narre Warren agreement, pursuant to which she agreed to pay Ms Amorosi $650,000 upon Ms Amorosi's request. She stated that she paid $710,790.98 instead of $650,000 because it reduced the Westpac loan to exactly $500,000 and because she wanted to help Ms Amorosi, who she considered was 'struggling', by giving her a 'bonus'.

39 In addition to McKenzie Lane, the Officer property was also sold in 2014 and the proceeds used to pay down the Westpac loan.

40 From around late 2014, Ms Amorosi formed the view that her financial circumstances were such that she would have to sell Saddlebow Road. From around this time, Ms Amorosi's relationship with Mrs Robinson began to deteriorate and to become acrimonious.

41 In early 2015, Llama sold Saddlebow Road for $1,475,000 (USD). After payment of commission and expenses, that amount was disbursed as follows: $728,500 was held on escrow (and later used to finance a new home for Ms Amorosi referred to in the following paragraph); $221,250 was withheld by the Internal Revenue Service of the United States; and the remaining $356,000 was paid to Ms Amorosi.

42 On 10 March 2015, Llama purchased a new property in Los Angeles for $749,000 (USD) which became, and remains, Ms Amorosi's residence (the second US property).

43 On 17 March 2015, Mr Robinson sent the following email to Ms Amorosi because of his concern that, since the proceeds of sale from McKenzie Lane had been paid into the Westpac loan, further payments had not been paid into the account:

With regard to the closing of the deal on Friday the 20 th there are a few points I would like to understand.

I believe the sorrentinos were to be credited the amount of 25000 in two sums of 10000 and 15000 dollars.

Has the bank in Australia been contacted to ascertain the final payout of the loan

As to the disbursements of the balance of monies can you or whoever is responsible provide me with details of said transactions, such as realtor fees etc

My understanding is that at this stage the funds left after settlement are to be deposited into an account opened by vanessa, what are the taxation obligations in doing this ,

How can funds belonging to llama investments be deposited in an individual's Account

Has an offer been placed and accepted on [the second US property]

If accepted what was the settlement date ,is it vacant possession,

At this point in time I have not seen any paperwork relating to the purchase of [the second US property], was an extensive site inspection carried out to avoid the same pitfalls made with the bell canyon purchase,

Equally I am concerned with what may be seen by the Australian taxation office as a windfall for vanessa attracting gift tax,

I am asking these questions to try and avoid any further disasters such as the days lost in trying to solve the notary problem

I am asking for this information as the sole director of llama investments, I am as you are aware

Responsible for the company and it's assets

Regards Peter Robinson.

44 Ms Amorosi responded as follows by email the same day:

This email makes me feel like I'm stealing my own money from you guys.

I tell mum everything that's going on but obviously that's not enough or right

either.

How about we just leave it at this

You guys just keep the money from the house here and we all just call it a day.

Then everyone's happy

Take care guys

45 On 12 November 2015, Ms Amorosi sent the following email to Mrs Robinson:

Hey I noticed I've missed some phone calls from you today. So I thought I would reach out in a email before going to bed. Obviously I haven't gotten over what happened 7 months ago, and wanted to get on the same page.

I would really like to workout the loan situation, so that I can make a plan on how to move forward with payments.

Obviously I would like to shut down all the companies so I no longer have to worry about taxes in Australia or any other bills.

I know I had mentioned that I would like to have the house in my name, not that I have a problem with it being in yours or peters but I do worry there's nothing protecting me if anything happens to you guys,

I feel that the siblings will come in to take whatever they can.

In the beginning I was worried about not having any assets to get a credit rating but I have managed to do ok with that because I had money left in my account.

I hope we can start there and move forward with these issues.

Hope all is well with you guys

In referring to the 'loan situation' and moving 'forward with payments', Ms Amorosi was referring to the balance of the Westpac loan.

46 On 23 November 2015, Mr Robinson sent the following email to Ms Amorosi:

All company's [sic] can be closed after 2015 Australian taxation returns are completed.

You will have to notify apra ppl [sic] and any source of income that currently is deposited in

Vanjoy .

Roadrunner bank account has been closed for several months to save bank fees.

Roadrunner can be shutdown as already stated after 2015 tax return is done.

Superannuation was closed 2014. Rolled in to your colonial mutual superannuation fund

By Ken Tudor.

Llama cannot be closed until your 500,000.00 loan has been paid back in full.

Once llamas loan is paid back the house you live in can go in your name.

As to sorting things out money wise and moving forward there is no money left in

Australia.

When your name goes on the title in America it has to come off the title on boundary rd

As we have already paid 730,000.00 dollars off your loan for your american house and the agreement was only for 650,000.00.

Don't forget all the thousands of dollars you were given every time you came back because Mac never gave you any money.

Also don't forget the 25,000.00 we loaned you and your partner earlier this year.

While you are clearing the air what is your recollection of what happened 7 months ago as i

Am aware there was a conversation between your mother and mr Peyrot followed by a phone call from your sister. Something so insignificant cannot be grounds for your actions.

...

Westpac investment property loan in llamas name

Balance as of 23 November 2015 is $481,525.06

Do you need Your savings account closed as well or have you already closed it.

I hope this helps.

It was uncontroversial that, in referring to the '$500,000 loan', Mr Robinson was referring to the balance owing on the Westpac loan after Mr Robinson's payment of $710,790.98 on 23 May 2014 following the sale of McKenzie Lane.

47 Ms Amorosi responded as follows by email sent on 10 December 2015:

OK, my understanding was that we were doing a trade of properties. I never heard until now that you guys where [sic] only giving me 650.

Mum said that the plan was to move back to Mckenzie to fix things in order to get the most money for it to cover the loan, but it seems there were other intentions.

Please keep in mind that I was paying a crazy amount of interest while Mckenzie was getting fixed .

Can I get a copy of the bank statements that show what was paid on the loan, so I can have a better understanding of what's happened?

I know we sold bayview but for what price? Also there was a unit that was being rented, was that sold?

As for money given to me while being with Mac, that was money I had earned.

150,000 went to buying the house cause it was purchased for 1,350,000 and the rest went towards bills over the last 3 years, 25,000 for car and fixing things in order to try and sell.

As for the 25,000 mum had given me to stay alive at, well I just thought that's what family does to help in times of need, like I have done so many times for everyone.

I have never been a tight ass when it came to family and money.

Obviously there's more to address but maybe it's a smart idea to start here and sort finances out first.

48 Mrs Robinson and Ms Amorosi exchanged several heated emails on 22 December 2015. Ms Amorosi was frustrated, upset and annoyed that, although 'everything had been sold', $500,000 remained owing on the second US property. In one email, Ms Amorosi stated:

I'm not playing these games.

I never get a clear answer about what's been done.

So let me know when you can be bothered explaining what's happened here with selling everything but still having 500,000 loan left and the swap of the houses that turned out to be something different.

49 In another email sent on 22 December 2015, Ms Amorosi said to Mrs Robinson:

This is bullshit and you know it . Where's the paper work on the Conversations we had many times about swapping the two houses?

There is none cause it was a Conversation we had that for some reason changed.

50 On 24 December 2015, Ms Amorosi sent the following email to Mrs Robinson regarding the 'New year':

These will be the questions I will have someone reach out to you with in the

new year.

Officer was sold for what price?

There was a loan on this place which was under 500,000

From memory you said that you paid that loan on that place off and would put the left over money in the other outstanding loan.

200,000 went in and 50 was left out for interest.

Mckenzie was sold for what?

Now obviously the deal we had changed and you had said in the last email that you made a payment of 750,000 to this loan which would make with both these payments 250,000 left to pay.

Now 250,000 seem more realistic.

There's was also 2 units that had been rented out that were also being sold . One you said was yours and the other one was mine.

What happened with that?

To say in your email that there is just to much paper work to explain these

things is crazy.

A bank statement of this outstanding loan would show me what money went in, at what date.

None of what I'm asking is unreasonable nor unfair seeming I'm the one that's left with nothing but a 500,000 Loss after over 15 years of working my ass off.

No need to reply.

51 By June 2017, Ms Amorosi had retained a solicitor to represent her in relation to her dispute with Mr and Mrs Robinson. On 22 June 2017, the solicitors sent a letter to Mr and Mrs Robinson which commenced as follows:

Our instructions are that Vanessa is being pressed to sign an extension of a guarantee (the guarantee) to Westpac Bank relating to a loan over the property at 219 Boundary Road North Narre Warren (the Narre Warren property) in which you both reside. Whilst the purchase was funded by Vanessa the title is in the names of Vanessa and Mrs. Robinson in equal shares as tenants in common. Mrs. Robinson holds her share under a resulting trust in favour of Vanessa. The debt is $500,000 or thereabouts.

Our advice to her is as follows:

1. Without prejudice to the resulting trust referred to above, the Narre Warren property should be valued and an agreement entered into whereby Mrs. Robinson takes over the Westpac debt and acquires Vanessa's equity at market value. If the parties cannot reach an agreement the property should be auctioned. The debt will then be repaid and any surplus divided equally between Mrs Robinson and Vanessa.

...

53 There is no evidence that Mr or Mrs Robinson responded to this letter.

54 The Narre Warren agreement is pleaded to have been a wholly verbal agreement between Ms Amorosi and Mrs Robinson. The oral character of the agreement, the absence of any direct corroboration of its making, and the fact that it is based on conversations between mother and daughter which occurred more than 20 years ago raise a host of forensic challenges. It is therefore appropriate to begin by noting some of the relevant principles which inform the Court's task in making findings in respect of the allegation.

55 The onus of establishing the Narre Warren agreement is on Mrs Robinson. As stated by Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd, '[w]here a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence'.[7] His Honour observed that, '[i]n the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof'.[8]

56 These potential difficulties of proof were discussed by Sackar J in Diransson Pty Ltd v Hassan El Dirani[9] in the context of a contract claim based upon conversations which occurred 10 years before trial. His Honour referred to the following well-known statement by McClelland J in Watson v Foxman[10] as to why, 'absent some objective and contemporaneous support, the alleged reiteration many years after the event of verbal exchanges which importantly are said to consummate contractual relations ... are often difficult to prove':[11]

... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.[12]

57 Reference must also be made to the seminal statement by the High Court in Fox v Percy:[13]

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, but at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

58 As stated by Leeming JA in Gautam v Health Care Complaints Commission,[14] these insights mean that '[u]sually, the resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation'.[15] To similar effect, M Osborne J described as 'unsafe' an approach to the consideration of competing evidence in which a 'purported independent actual recollection' of events is treated as more reliable than one which is arrived following a consideration of objective surrounding material.[16] Instead:[17]

The more appropriate course in evaluating competing evidence is 'to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence',[18] and make 'inferences drawn from the documentary evidence and known or probable facts'.[19]

59 The above principles were applied and considered in detail by Robb J in Stone v Kramer.[20] The case concerned a representation allegedly made by Dame Leonie Kramer to Mr David Stone, a sharefarmer who had farmed her property for many years, that he would receive her property upon her death. That did not occur and Dame Leonie Kramer devised the property to her daughter. Mr Stone succeeded before Robb J who found that the property was held on a constructive trust for his benefit on the basis of an equitable estoppel. An appeal from the judgment was dismissed.[21] The present relevance of the judgment concerns the approach to determining whether the representation as alleged was in fact made. Mr Stone was the only living witness to the conversations on which the representation was based, some of which occurred up to 40 years before trial. After considering the relevant principles including the authorities discussed above, Robb J made the following observations with which Leeming JA agreed on appeal:[22]

Notwithstanding the self-evident validity of these reservations about the wisdom of a court accepting the oral evidence of an interested witness that is not directly corroborated of statements allegedly made by a now-deceased person long in the past, the courts may from time to time have to decide cases of considerable importance to individual plaintiffs, where the plaintiff's claimed rights are based upon statements made to them in private, in circumstances where the context is one of trust between the participants, and where they have no intention to seek legal advice, to involve strangers in the transaction, or to enter into formal legal agreements. It is only necessary to recall the dichotomy between arms-length/commercial cases and domestic/family cases discussed by Gleeson JA in [Doueihi v Construction Technologies Australia Pty Ltd [2016] NSWCA 105; (2016) 92 NSWLR 247] at [178], and the possibility that the parties may have different expectations as to entry into a formal written agreement from those usually held in a strictly commercial case or a domestic/family case.

While it is clear that the amplification of the forensic uncertainties that may attend the enforcement of non-commercial arrangements based on oral agreements in informal circumstances, where it is expected that the agreements will be honoured on the basis of trust, requires that the Court exercises exceptional care in acting on the evidence of a plaintiff that is not directly corroborated concerning oral assurances, that is a circumstance that only makes the Court's duty more onerous. The issue is always whether the plaintiff has established the claim on the balance of probabilities, having regard to all of the evidence, as well as the gravity of the matters alleged and the other considerations required to be taken into account under s 140(2) of the Evidence Act 1995 (NSW). There is no rule that the Court should not act on the uncorroborated evidence of an interested party as to the terms of historical conversations. There is scope for great injustice to be done if the Court adopts an excessively inflexible resistance to accepting oral evidence of conversations in that manner.

As Robb J stated, it followed that the 'only course available to the Court is to give an in-depth consideration to the circumstances surrounding the making of the alleged representations and the subsequent behaviour of the parties to the conversation, as well as to give exhaustive scrutiny to the available objective evidence'.[23]

60 I will begin by examining the evidence given by each of Ms Amorosi and Mrs Robinson in relation to the alleged Narre Warren agreement. I will then further appraise that evidence by reference to the documentary evidence and the objectively established facts and the apparent logic of events.

61 Ms Amorosi's evidence was that she wanted to buy her first house, that she discussed this with Mrs Robinson and asked her if she, Ms Amorosi, could buy acreage because she wanted to have horses. Boundary Road was later identified by Mrs Robinson while Ms Amorosi was away on tour. According to Ms Amorosi, Mrs Robinson described Boundary Road as her (Mrs Robinson's) 'dream home'. Ms Amorosi did not see the property until after it was purchased. Mrs Robinson asked Ms Amorosi if she was okay with putting her (Mrs Robinson's) name on the title because there was going to be stamp duty and paperwork, and because Ms Amorosi was not going to be around to attend to those matters. Ms Amorosi agreed to this.

62 Ms Amorosi's understanding was that Boundary Road was to be purchased in 'cash', using $650,000 from an account held by Vanjoy. She denied ever saying to Mrs Robinson that she was going to provide her with a house as a gift. Although she gave evidence that there were 'numerous conversations over the years when I purchased things on coming to an agreement where we could do swaps', Ms Amorosi denied that there was ever any agreement in which Mrs Robinson would give her $650,000 as an exchange years later. Ms Amorosi specifically denied that, in a conversation with Mrs Robinson in the kitchen at McKenzie Lane, they agreed that she would buy Mrs Robinson Boundary Road in return for Mrs Robinson paying her $650,000, being the anticipated purchase price, whenever Ms Amorosi requested it.

63 After she moved to the Officer property, Ms Amorosi considered that Boundary Road remained one of her 'homes' or properties.

64 The submission put on behalf of Mrs Robinson that Ms Amorosi was vague and sometimes evasive in her evidence is without substance and is not supported by a fair reading of her evidence to the Court. Beyond this general assertion, the only specific basis upon which counsel for Mrs Robinson sought to impugn Ms Amorosi's evidence was on the basis of the evidence she gave in relation to the deregistration of Road Runner. It is necessary to consider that evidence in some detail.

65 On 19 August 2022, in her capacity as a director of Road Runner, Ms Amorosi signed an application for the company's voluntary deregistration, which form was then lodged with the Australian Securities Investments Commission (the ASIC form). In signing the ASIC form, Ms Amorosi certified that its contents were true and complete. It included six declarations, including that Rod Runner had no outstanding liabilities and was not a party to any legal proceedings.

66 These two declarations were not correct. Road Runner was then a party to this proceeding[24] and it had outstanding liabilities: on 6 April 2022, the Court had made orders that the plaintiffs, including Road Runner, pay the defendants' costs of amendments to the statement of claim. Before me, counsel for the defendants submitted, without demur, that those costs had not then been paid.

67 Counsel submitted that Ms Amorosi's 'feigned inability' in cross examination to understand questions about these declarations showed her to be, at best, evasive and unreliable and, at worst, not an honest witness. Road Runner's deregistration during the course of this proceeding while it remained a party was said to demonstrate improper conduct by Ms Amorosi which lacked honesty. It was submitted that Ms Amorosi's evidence should not be accepted, other than when corroborated by independent evidence.

68 Given the manner in which Mrs Robinson's case was opened and conducted, it was not open for counsel to submit that the Court should not accept Ms Amorosi's evidence because she was not an honest witness. The submission is contrary to the way in which Mrs Robinson's case was opened: the proposition that Ms Amorosi was not a witness of truth was expressly disavowed by counsel, with the foreshadowed challenge to her evidence limited to an invitation for the Court to find that her account of events could not be taken to be accurate because of a deficiency of memory.

69 As the Court of Appeal stated in Food and Beverage Australia Ltd v Andrews:[25]

The rule in Browne v Dunn generally requires a party to give appropriate notice to the other party, and that party's witnesses, of any imputation intended to be made against them about their conduct relevant to the case or their credit.

70 This obligation was not met in the manner in which Mrs Robinson's case was opened; nor was it satisfied in the manner in which Ms Amorosi was cross-examined. Although counsel put to Ms Amorosi that the ASIC form contained a 'false declaration' and that it was not a true statement, it was never put to her, directly or indirectly, that her denials of the Narre Warren agreement were knowingly false or untrue. At no time did counsel seek to impeach Ms Amorosi's credit as a witness in relation to the critical matter of the existence or otherwise of the Narre Warren agreement. To the contrary, having raised the truthfulness of the declarations made by Ms Amorosi in the ASIC form, counsel formally put the elements of the Narre Warren agreement to Ms Amorosi, all of which she rejected, without raising any issue about her truthfulness. The rule in Browne v Dunn[26] has therefore been breached. As Lord Herschell LC stated in Browne v Dunn:[27]

...it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

71 Where the rule in Browne v Dunn has been breached, the Court's 'discretionary armoury' includes precluding the party in default from submitting that the witness' evidence should not be accepted.[28] Here, for the reasons I have outlined, given the importance of the issue, fairness justifies the adoption of this approach in respect of the claim that Ms Amorosi's denials in relation to the Narre Warren agreement should not be accepted because she was a dishonest witness.

72 However, even if I am mistaken in adopting that approach, having considered Ms Amorosi's answers in cross examination in relation to the ASIC form, I am not persuaded that the inclusion in it of the two incorrect declarations was the product of any dishonest intent on her behalf, as distinct from it simply being a mistake. Although Ms Amorosi signed the form, it was lodged - and in all likelihood prepared - by a third party on her behalf. She had no clear recollection about its preparation; her awareness was limited to the underlying commercial reason which resulted in its creation: Road Runner was to be 'closed down' because it was no longer to be used for touring. All of this is unsurprising given Ms Amorosi's professional interests. Although the completion of an incorrect declaration is a serious matter, and none of what I have stated should be taken as condoning Ms Amorosi's regrettable inattention in ensuring the accuracy of the content of the ASIC form, there is no proper basis to find that this was the product of any dishonesty on her part.

73 Putting to one side the challenge to Ms Amorosi's honesty, there is also a complaint that the Court should not accept her evidence because she was not a reliable witness. The basis of this assertion was not revealed in submissions. I reject the complaint that Ms Amorosi was evasive in her evidence and that her evidence was unduly vague or general. It is entirely unsurprising that some of Ms Amorosi's evidence about conversations she had with her mother more than 20 years ago when she was an 18 year old touring the world as an international popstar was general and non-specific. Mrs Robinson is to be afforded a similar allowance in assessing her evidence. However, even allowing for this, as I explain below, Mrs Robinson's evidence about the Narre Warren agreement was vague, changeable and inconsistent.

74 Mrs Robinson's evidence was that it was Ms Amorosi who discovered Boundary Road and that they decided to offer to purchase it for $650,000 after inspecting the property. Early in her evidence in chief, Mrs Robinson said that the property ultimately came to be registered in both their names after they had a conversation in the kitchen in McKenzie Lane in which Ms Amorosi said 'I'm going to buy this house for you, mum, it's perfect for you and I can run my horses on it'. Mrs Robinson expressed her gratitude for the offer but, because she did not like 'taking things off [her] children', said that, 'until I can maybe sell my property [McKenzie Lane] ... and give you the money, then I can call this house my house and we'll change names and that'. However, later in her evidence in chief, she said that she could not 'really recall what was actually said'. When asked again what was said, Mrs Robinson responded: 'She was buying the property for me I thought'. Mrs Robinson said that this was based on the agreement she said she had made with Ms Amorosi in the kitchen at McKenzie Lane, being that Ms Amorosi would pay the whole purchase price for Boundary Road and 'when she needed money I would sell my McKenzie Lane property' and pay her $650,000, being the purchase price for Boundary Road.

75 In cross examination, Mrs Robinson admitted that her pleaded version of the Narre Warren agreement which placed Mr Robinson in the kitchen at McKenzie Lane during the conversation was wrong. Mr Robinson was not present, but she had instructed her solicitors that he was. Despite acknowledging that she was mistaken in this regard, she nonetheless insisted that the conversation occurred at 4pm as pleaded. In the context of a conversation said to have occurred more than 20 years ago, it is difficult to reconcile the specificity of this recollection with Mrs Robinson's inability to otherwise remember when the conversation occurred, or even when Boundary Road was purchased.

76 Mrs Robinson sought to maintain in cross examination that she had an 'actual memory' of the conversation with Ms Amorosi. When asked why she had said in examination in chief that she could not remember what was actually said, Mrs Robinson said she was very emotional and apologised for saying 'some wrong things' (which she did not identify). After re-stating that she could remember the actual discussion with Ms Amorosi, Mrs Robinson was asked to tell the Court what she and Ms Amorosi said. Remarkably, given the answer to the preceding question, she said that she did not remember. When pressed to give her recollection of the conversation, she said, 'Well I can't tell you in one simple word what I said, there's a bit of a story to it. As if I go into detail, I'm not allowed to, so'. This last statement, and similar comments by Mrs Robinson elsewhere in cross examination, went unexplained and was made without any obvious basis. It was only after a further non-responsive answer to a question from counsel that Mrs Robinson repeated her earlier evidence that Ms Amorosi said to her in the conversation in the kitchen at McKenzie Lane that she was going to buy Boundary Road and that she was buying it for her (Mrs Robinson).

77 The shifting and inconsistent course of Mrs Robinson's evidence leaves me entirely unconvinced that there existed a Narre Warren agreement as alleged. I did not find Mrs Robinson to be a reliable witness in her evidence to the Court.

The documentary evidence, the objective facts and the apparent logic of events

78 My provisional view about the Narre Warren agreement as alleged based on Mrs Robinson's credit was confirmed by a number of facts and circumstances independently established by the evidence, including the parties' conduct since the Narre Warren agreement was made. It is well established that, where there is no formal contract, the Court may consider post-contractual conduct 'on the question whether the contract was in fact formed, and the terms agreed by the parties'.[29]

79 The matters which I consider should be given weight in assessing the probabilities are referred below. Counsel for Ms Amorosi invited the Court to give weight to a number of other considerations; I have not done so principally because many of those submissions proceeded from the doubtful assumption that a paradigm of rational self-interest is a consistent and reliable premise upon which to weigh the probabilities about contested facts. While such considerations are necessarily relevant, their utility in determining the probabilities in fact-finding in the sometimes obscure and private sphere of familial dealings about money and property cannot be assumed.

80 First, it is striking that, until November 2015, Mrs Robinson did not make any mention of the existence of an agreement in the nature of the Narre Warren agreement, including an obligation on her to pay Ms Amorosi $650,000 on request. The first time any such agreement was asserted was November 2015, when Mr Robinson sent Ms Amorosi the email referred to in [46] above. This was more than 14 years after the alleged conversation in the kitchen in McKenzie Lane and occurred after the relationship between mother and daughter began to sour in late 2014. This delay is consistent with the variable character of Mrs Robinson's evidence about key matters and the probability that her assertion about the existence of the Narre Warren agreement was the fusion of various later conversations between her and Ms Amorosi about their financial affairs and property interests - of which there were many - as well as Mrs Robinson's own assumptions and beliefs about what would occur in the future after Boundary Road was purchased.

81 Secondly, a notable fact which lends credence to this analysis was the failure by Mrs Robinson to provide any response to the formal assertion by Ms Amorosi of her interest in Boundary Road by her solicitors in June 2017.[30] This correspondence marked a serious escalation in their dispute; it was the first occasion in which Ms Amorosi retained solicitors to advance her interests in relation to her dispute with her mother. If the Narre Warren agreement existed, it is reasonable to expect that the claims made Ms Amorosi's solicitors would have been answered by Mrs Robinson or by her legal representatives. The significance of considerations of this type was noted by Sackar J in Diransson Pty Ltd v Hassan El Dirani in relation to the relevance of post contractual conduct. Describing it as a 'two edged sword' in considering an asserted oral contact, he stated:[31]

Whilst it may be that post contractual conduct points either to the existence of a contract or one of its terms, a failure to complain for example may have the inverse consequence. In other words, if a person asserts a cause of action based on reliance upon certain contractual relations, but then failed in circumstances where it might have been thought appropriate to complain about the way in which they were being treated, the absence of the complaint may well amount to an admission that no contract or no promise of the sort alleged was made in the first place ...

82 Mrs Robinson placed reliance on the above correspondence from Ms Amorosi's then solicitor, submitting that it was contradictory for Ms Amorosi to instruct her solicitors that Boundary Road was held on trust for her, but that it should be sold and the proceeds divided between them. This submission ignores the fact that the latter proposal was expressly advanced 'Without prejudice to the resulting trust referred to above'.

83 Thirdly, one important aspect of Ms Amorosi's conduct after 2001 is significant as being consistent with the absence of any Narre Warren agreement as alleged. When Llama purchased the Officer property and later Saddlebow Road, there is no evidence that Ms Amorosi requested Mrs Robinson to pay her the $650,000 which, under the asserted terms of the Narre Warren agreement, she was entitled to do. Instead, on both occasions, finance was obtained to fund the purchases at commercial interest rates. This is particularly striking in relation to the purchase of Saddlebow Road[32] which occurred some 11 years after Boundary Road was purchased and which required significant borrowings of $1.2 million. Even allowing for the possibility of family members not acting in accordance with their self-interest, it is reasonable to expect that, if she had the right to call on a payment of $650,000 from Mrs Robinson based on an agreement struck many years earlier, a person in Ms Amorosi's position would have at least canvased the possibility of exercising that right by raising it with one or both of her mother and step-father. The fact that she did not and instead acquiesced in Llama borrowing a large sum at commercial interest rates is, I consider, a telling factor against the existence of the Narre Warren agreement. The submission advanced on behalf of Mrs Robinson that this can also be viewed as objective evidence which is consistent with the existence of the Narre Warren agreement is without substance.

84 Counsel for Mrs Robinson submitted that the existence of the Narre Warren agreement was consistent with the various improvements of the Boundary Road property which Mr and Mrs Robinson undertook at their expense.[33] At a general level, I accept that this is conduct consistent with the holding of a genuine belief by Mr and Mrs Robinson that Mrs Robinson held a beneficial interest in the property. However, it is not conduct which is only consistent with the Narre Warren agreement in particular. It is also consistent with a desire on the part of Mr and Mrs Robinson to improve the overall amenity of the home they wished to provide for their family, noting the recreational and lifestyle character of many of the improvements which were undertaken, such as the construction of a swimming pool and a sauna. Further, the evidence does not permit any finding as to the likely total amount spent by Mr and Mrs Robinson on these improvements.[34] Accordingly, while I take this conduct into account as a matter which is broadly consistent with the existence of the Narre Warren agreement, ultimately its weight is limited. Its probative value is not comparable to the other independent facts and conduct to which I have referred above.

85 The other category of subsequent conduct relied upon by Mrs Robinson in support of the claimed existence of the Narre Warren agreement was the content of various letters and emails. To the extent that I have not already done so, I separately consider these communications below.

86 Reliance was placed on Mr Tuder's letter to Mrs Robinson and Ms Amorosi in October 2001 in which he explained that the purpose of Llama as trustee for the Llama Trust was to hold assets for Ms Amorosi.[35] Despite this stated purpose, it was said to be significant that neither Llama, nor the Llama Trust, were in existence when Boundary Road was acquired in February 2001,[36] and there was no evidence that steps were ever taken to transfer the property to Llama.

87 Mr Tuder's statement of the purpose of Llama and the Llama Trust (and the inconsistency between that purpose and the purchase and ownership of Boundary Road) is not probative of the existence of any agreement alleged to have been made between other persons, namely, Mrs Robinson and Ms Amorosi. As recognised by the Full Court of the Federal Court of Australia in Qube Ports Pty Ltd v Maritime Union of Australia,[37] the principle allowing for regard to be had to post-contractual conduct in determining whether a contract was formed and its terms does not extend to the subsequent conduct of others.[38] However, even if the principle did operate in that way, the mere fact that Llama was not in existence when Boundary Road was purchased says nothing about what, if anything, may have then been agreed between Ms Amorosi and Mrs Robinson. Likewise, the fact that the property was not later transferred to Llama would be an entirely unsafe basis to infer anything about its intended beneficial ownership when it was purchased, let alone the existence of the Narre Warren agreement.

88 Mrs Robinson also relied on Mr Tuder's letter to Pointon Partners dated 21 June 2005 in which he sought legal advice in relation to Boundary Road and in which he recorded that, 'We have been advised by Joy Robinson that this property really does belong to Joy in its entirety'.[39] In the letter, Mr Tuder also sought advice as to whether a bare trustee document could be put in place in relation to Boundary Road 'to evidence the true intention of the parties at the time of purchase which is for Joy to have 100% ownership of Boundary Road'. Although Ms Amorosi could not recall receiving the letter, on its face, the letter indicates that it was copied to her.

89 I give this evidence little weight. Evidence of one person's later expressed opinion about a matter is inherently of limited, if any, probative value about the existence of certain earlier facts. Here, Mrs Robinson's subjective view as to the beneficial ownership of Boundary Road purchased some four years earlier is of little assistance in determining whether or not the Narre Warren agreement was reached as a matter of fact. Furthermore and in any event, Mrs Robinson's opinion about the ownership of Boundary Road recorded in Mr Tuder's letter does not reflect the alleged terms of that agreement, including in particular the asserted promise to pay Ms Amorosi $650,000 on her request.

90 Mrs Robinson relied upon Mr Robinson's email to Ms Amorosi on 11 September 2012 in which he asked Ms Amorosi which property she wanted to sell, with one of the properties being McKenzie Lane.[40] It was submitted that there was no reason for Mr Robinson's offer to sell McKenzie Lane, being his and Mrs Robinson's own property, unless they were getting Boundary Road in return. Further, it was submitted that the subject of the email was the reduction of the then $1.2 million Westpac loan which had funded the purchase of Saddlebow Road, being a debt that had been incurred by Ms Amorosi and Mrs Robinson for the benefit of Ms Amorosi.

91 I do not accept this submission. As explained in [87] above, the regard which the Court may have to post-contractual conduct in determining whether a contract was formed, and its terms, does not extend to the subsequent conduct of non-parties. Mr Robinson is not alleged to have been a party to the Narre Warren agreement; strictly speaking, his conduct subsequent to the making of the Narre Warren agreement as alleged cannot be probative of whether that agreement was in fact made. In any event, it is striking that Mr Robinson's email indicates that he, (and presumably Mrs Robinson, on her case), regarded Ms Amorosi as being entitled to use the entirety of the proceeds of any sale of Boundary Road to ('hopefully') discharge the Westpac loan in full; that is, that Ms Amorosi was solely entitled to the beneficial interest in Boundary Road. Such a view is fundamentally at odds with the Narre Warren agreement as alleged. Further, the proposition that Mr and Mrs Robinson must be taken to have offered McKenzie Lane for sale in return for receiving Boundary Road is not probative of the existence of the Narre Warren agreement: the agreement does not assert any arrangement.

92 Mrs Robinson relied upon the exchange of emails between Mr Robinson and Ms Amorosi on 17 March 2015 referred to in [43]-[44] above. Mr Robinson's email was said to show that he was concerned that the $1.2 million Westpac loan be paid from the proceeds of sale of Saddlebow Road and that he did not regard himself as being responsible for that transaction, despite the fact he was a director of Llama. As to Ms Amorosi's reply, it was submitted that her statement that, 'How about we just leave it at this. You guys just keep the money from the house and we all just call it a day', was only consistent with the Narre Warren agreement.

93 The reliance on Mr Robinson's email sent on 17 March 2015 is again misplaced because it is subsequent conduct by a person who is not said to have been a party to the Narre Warren agreement. In any event, it is not probative of the existence of that agreement; nor is Ms Amorosi's reply.

94 Mrs Robinson also relied upon the email sent to her by Ms Amorosi on 12 November 2015;[41] it was said to be significant that Ms Amorosi did not express any concern with Boundary Road being in Mrs Robinson's name. I do not accept this submission; it proceeds from an inaccurate characterisation of the email. In the relevant part, Ms Amorosi recounts that she 'had mentioned that I would like to have the house in my name'. Then, in placatory terms in a communication in which she is plainly adopting a conciliatory approach in relation to repayments of the Westpac loan, Ms Amorosi states, 'not that I have a problem with [the house] being in yours or peters [sic]'. She then, in effect, explains why she wants the property to be in her name: her 'worry [that] there's nothing protecting me if anything happens to you guys , ... I feel that the siblings will come in to take whatever they can'.

95 It was submitted to be critical that Ms Amorosi did not deny the reference to the alleged Narre Warren agreement, (notably being the first time any reference was made to it by Mr or Mrs Robinson), being the statement in Mr Robinson's email to Ms Amorosi on 23 November 2015 that, 'As we have already paid $730,000 off your loan for your American house and the agreement was only for $650,000'.[42] This submission must be rejected. In her responsive email dated 10 December 2015, Ms Amorosi stated, 'I never heard until now that you guys where [sic] only giving me 650'.[43] The fact that this remark was preceded by an acknowledgement by Ms Amorosi of her understanding 'that we were doing a trade of properties' is not to the point as it does not accord with the Narre Warren agreement as alleged and must be viewed in the context of the numerous discussions Mrs Robinson and Ms Amorosi had over the years about properties and financial matters. The same point in substance arises in relation to Mrs Robinson's reliance on the series of emails she exchanged with Ms Amorosi referred to in [48]-[50] above.

96 It is therefore apparent that the communications subsequent to the purchase of Boundary Road upon which Mrs Robinson relied provide little support for the existence of the Narre Warren agreement as alleged.

97 On the basis of the oral evidence, in particular that given by Ms Amorosi and Mrs Robinson, as well as a consideration of the documentary evidence, the objective facts and the apparent logic of events, Mrs Robinson has failed to persuade me as to the existence of the alleged Narre Warren agreement.

98 Mrs Robinson's claim of adverse possession is based on two key contentions: (1) that Ms Amorosi left and vacated Boundary Road in or about August 2005; and (2) that Mrs Robinson has since intended, and has in fact been, in possession of Boundary Road to the exclusion of Ms Amorosi. According to Ms Amorosi, Boundary Road was 'mum's home' or 'mum's house', and Mrs Robinson intended it to be her own home, and not Ms Amorosi's. It was submitted that Ms Amorosi's visits to the Boundary Road after 2005 did not amount to any intention by her to possess the property.

99 On the basis of these matters, Mrs Robinson pleaded that, by operation of s 8 of the Limitation of Actions Act 1958 (the Limitations Act), she was entitled to possession of Boundary Road, and Ms Amorosi was unable to recover possession of the property. As is presently relevant, s 8 states:

8 Action to recover land

No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:

...

100 In Whittlesea City Council v Abbatangelo,[44] the Court of Appeal approved the following summary of the basic principles relating to adverse possession set out by Ashley J (as his Honour then was) in Bayport Industries Pty Ltd v Watson[45] and drawn from the statements of principle by Slade J in Powell v Macfarlane:[46]

(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, ... The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

(4) The animus possidendi, which is also necessary to constitute possession, ... involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow ... the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner.

101 The Court of Appeal added a number of other principles to this list, including the following:[47]

• When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: ... . And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: ... .

...

• It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: ....

102 The Court of Appeal further elaborated upon these general principles by referring to the following additional principles relevant to the facts of the case before the Court (and which are also generally relevant to this case):[48]

(b) Factual possession requires a sufficient degree of physical custody and control. Intention to possess requires an intention to exercise such custody and control on one's own behalf and for one's own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession.

(c) In considering whether the putative adverse possessor has factual possession, a court has regard to all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available and the course of conduct which an owner might be expected to follow. Each case must be decided on its own particular facts. Whilst previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person's dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another. ...

(d) The intention required by law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land.

(e) A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.

(f) Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But whilst a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess.

103 In Gianchino v Gianchino,[49] the Court of Appeal observed that s 14(4) of the Limitations Act[50] governs the application of the concept of adverse possession as between co-owners of land.[51] It requires both factual and intentional possession[52] and provides for a 'statutory fiction' which deems adverse possession to have occurred in the circumstances specified. Consistent with the Court's observations,[53] the section may be simplified, as is presently relevant, in the following terms:[54]

When one of [two] persons entitled to any land as tenants in common have been in possession of the entirety of such land for [her] own benefit or for the benefit of any persons other than the other [tenant in common], such possession ... shall not be deemed to have been the possession of [the other tenant in common], but shall be deemed to be adverse possession of the land.

104 Applying these principles, Mrs Robinson's adverse possession claim must fail for three principal reasons.

105 First, insofar as the claim proceeds from Ms Amorosi's description of Boundary Road as 'mum's home' or 'mum's house', its evidentiary basis is, at best, tenuous. Consistent with the evidence given by Ms Amorosi, in ordinary parlance these references are readily understood as describing the place where Mrs Robinson lived; only a partisan lawyerly eye would attribute them as an admission about the ownership of the property.

106 Secondly and more fundamentally, Mrs Robinson's control and use of Boundary Road since March 2006 has not been continuously exclusive. Ms Amorosi regularly visited Boundary Road between 2005 and 2011 when she was living at the Officer property. After she relocated to the United States in 2011 until about 2015, she stayed there overnight when visiting Melbourne; there is no suggestion that she sought or required Mrs Robinson's permission to do so. Both Mrs Robinson and Mr Robinson also acknowledged that Ms Amorosi was at liberty to come onto Boundary Road to collect her memorabilia which was stored there. In addition to her memorabilia, from 2005 until trial, Ms Amorosi has kept her horses, saddles and llamas at Boundary Road. Again, there is no suggestion that Ms Amorosi sought Mrs Robinson's permission to keep her property at Boundary Road, or that her permission was required.

107 Thirdly, the evidence does not establish any clear intention on the part of Mrs Robinson to oust Ms Amorosi's co-possession of the Boundary Road property. She permitted Ms Amorosi to do the things referred to in the previous paragraphs, and there is no suggestion that she blocked Ms Amorosi's access to the property when she moved to Officer, such as by changing the locks, or by taking away Ms Amorosi's key. Notably, there was no assertion of an adverse possession claim or otherwise an intent by Mrs Robinson to oust Ms Amorosi from the Boundary Road property from the time of Ms Amorosi's initial letter of demand in 2017, nor in the defence when it was filed and served in 2021, which did not claim any entitlement by Mrs Robinson to Boundary Road on the basis of adverse possession.[55]

108 The claim of adverse possession is accordingly rejected.

109 Given Mrs Robinson's failure to prove the existence of the Narre Warren agreement as alleged and my rejection of her adverse possession claim, it is necessary to consider what, if any, relief should be granted to Ms Amorosi in respect of Boundary Road.

110 The primary relief sought by Ms Amorosi was a declaration that Mrs Robinson holds her interest in Boundary Road on a common intention constructive trust for Ms Amorosi. As explained by White J (as he then was) in Shepherd v Doolan, a common intention constructive trust arises:[56]

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

111 It is helpful to set out at length White J's elucidation of the characteristics and elements of a common intention constructive trust:[57]

Where a constructive trust is imposed, based upon the parties' common intention as to the ownership of property upon which the claimant has acted to his or her detriment, the inquiry is as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue. ...

...

The intention may be established in various ways. There may be an agreement between the parties as to how the property should be held. There may be express statements as to their intention. Their intention may be inferred from their conduct. The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law. ... .

The intention may be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying off of mortgages, or the payment of expenses which free up funds for that purpose. ... This is a wider enquiry than whether a contribution was made to the purchase money such as to give rise to a presumption of a resulting trust. Whilst both enquiries address the inferences to be drawn as to the parties' actual intentions, a contribution to the purchase price creates a presumption of beneficial ownership in the proportion which the amount contributed bears to the price. For a "common intention" constructive trust, a contribution, direct or indirect, to the costs of acquisition of the property is a matter from which an intention that the claimant have a beneficial interest in the property might be inferred. There is a difference between a fact from which an inference can be drawn, and a fact from which a rebuttable presumption arises. The significance of the difference will depend upon the strength of the presumption. In the case of the "common intention" constructive trust, there is no presumption that the beneficial interest is in proportion with the contribution to the purchase price.

Other evidence from which conclusions may be drawn about the intentions of the parties include declarations of the parties before or at the time of the transaction or so close in time after the transaction as to constitute a part of it. Subsequent declarations of intention are only admissible against interest. ... .

The plaintiff must also show that she acted to her detriment in a way referable to the agreement or intention that she have an interest in the property. ... . Conduct may be both the evidence from which an intention that the plaintiff have a beneficial interest can be inferred and the act of detrimental reliance. ... In Grant v Edwards Nourse LJ said (at 648) that to qualify as acting on the common intention, the conduct must be such that the plaintiff could not reasonably have been expected to embark upon it unless she were to have an interest in the property. In Green v Green (at 357) Gleeson CJ, with whom Priestley JA agreed, approved a less stringent test taken from the judgment of Sir Nicholas Browne-Wilkinson VC in Grant v Edwards (at 657) that:

... once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house ... The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so ...

The quantum of the claimant's beneficial interest will be that which the parties agreed upon or intended, if that can be established. In Green v Green and in Parianos v Melluish it was held that although the parties did not turn their minds to the particular form of title which they intended the claimant to have, the conclusion which best gave effect to the intentions of the parties was that they were beneficially entitled to the property as joint tenants, so that upon the death of the respondent, the claimant became the absolute beneficial owner by survivorship.

If the evidence does not permit of a finding as to the precise size, nature and extent of the beneficial interest the parties intended the claimant to have, one starts with the maxim that equality is equity. ... . But that standard can and should be departed from where the parties make disproportionate contributions to the acquisition of the property. ....

112 Consistent with this discussion, in Imam Ali Islamic Centre v Imam Ali Islamic Centre, McMillan J distilled the following three elements to establish a common intention constructive trust (the onus resting on the party asserting the beneficial interest against the legal owner):[58]

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

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

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

113 In Zekry v Zekry,[59] the Court of Appeal referred to the overlap between a common intention trust and proprietary estoppel and the possibility that:[60]

...because constructive trusts of the kind recognised by Deane J in Muschinski v Dodds[61] exist independently of common intention, it may be, as Leeming JA observed in [Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336], that the common intention constructive trust no longer survives in Australia.[62]

The Court of Appeal found it unnecessary to determine this question as no argument was advanced putting in issue the possible existence of a common intention trust. I will adopt the same approach; Mrs Robinson has not put in issue the existence, doctrinally, of such trusts.

114 The evidence establishes that, in purchasing Boundary Road, Ms Amorosi and Mrs Robinson had the common intention that Ms Amorosi would own the property, but that Mrs Robinson would 'go on title' to facilitate the purchase because of Ms Amorosi's absences overseas while touring. That finding is supported by Ms Amorosi's evidence, which I have accepted. Her evidence was that, before Boundary Road was purchased, she had decided that she wanted to buy her first house. She discussed this with Mrs Robinson who, after Boundary Road was purchased, then asked Ms Amorosi if she agreed to her (Mrs Robinson) putting her name on the title 'because there's going to be stamp duty and paperwork that needs to be done and you're not going to be here to do it'. Ms Amorosi agreed. For the reasons given in relation to my consideration of the Narre Warren agreement, I do not accept Mr Robinson's evidence in relation to the purchase of Boundary Road, including that Ms Amorosi said that she was buying the property for her benefit.

115 This common intention is also readily inferred from the fact that the entirety of the price of the property of Boundary Road was paid from income earnt by Ms Amorosi.[63]

116 The fact that Ms Amorosi permitted her funds to be used to purchase Boundary Road demonstrates her reliance on the common intention to her detriment. That reliance is also evident by her actions in building the studio on the property.

117 As to whether it would be an equitable fraud on Ms Amorosi to deny her interest in the property, I note the observations of the Court of Appeal in MAPA Pearls Pty Ltd v Haliotis Fisheries Pty Ltd that equitable fraud:[64]

... extends beyond actual fraud and does not require intentional or conscious wrongdoing. It includes what is sometimes referred to as 'constructive fraud', which can arise where a person's conduct falls short of deceit but is regarded by equity as so unconscientious that it should not be allowed to stand. Put another way, equitable fraud involves conduct that is abhorrent to the good conscience upon which the principles of equity are based.

118 Mrs Robinson has engaged in equitable fraud by failing to honour the common intention between her and Ms Amorosi in relation to the ownership of Boundary Road from when that claim was in substance first formally raised with her in June 2017.[65]

119 Other than the alleged Narre Warren agreement, few matters of substance were raised on behalf Mrs Robinson as to why the Court should not declare that she holds her share of Boundary Road on trust for Ms Amorosi on the basis of a common intention constructive trust. It was contended that any such declaration would be unenforceable as a result of the operation of s 53(1)(b) of the Property Law Act 1958 which relevantly provides that 'a declaration of trust respecting any land ... must be manifested and proved by some writing signed by some person who is able to declare such trust ...'. This submission ignores the terms of s 53(2) which states that s 53 'shall not affect the creation or operation of resulting, implied or constructive trusts'. It was faintly submitted that the plea in relation to a common intention constructive trust in respect of Boundary Road was not pleaded; that submission is wrong given the terms of paragraphs 207-208 of the Amended Statement of Claim and the particulars thereto.

120 Mrs Robinson was on stronger ground in complaining about the adequacy of Ms Amorosi's pleading in relation to the element of detrimental reliance in the asserted common intention constructive trust in respect of Boundary Road; the Amended Statement of Claim did not contain any separate pleading in relation to that matter. In considering that deficiency, regard should be had to the following statements by the Full Federal Court in Betfair Pty Ltd v Racing New South Wales[66] which are a helpful elaboration upon the basic function of pleadings of identifying the issues which require a court's attention and determination:[67]

Pleadings provide a structure for a proceeding for the purpose of the attainment of justice. The pleadings identify the material facts upon which the parties rely and the issues the parties seek to have determined. Because the pleadings require the parties to identify all material facts and issues, the pleadings provide the benchmark for discovery before trial and the admissibility of evidence at trial. Parties are required to plead the material facts upon which the party relies and the issues which that party seeks to have resolved for the further purpose of giving the opposing party fair notice of the case to be met at trial thereby minimising any risk of injustice by taking the opposing party by surprise. ... .

At trial a party is entitled to have the opposing party confined to that party's pleadings because the first party is entitled to come to trial to meet only the issues raised on the pleadings. However, if the first party does not seek to so confine the opposing party but allows the other party to raise other material facts and issues for the determination of the Court, then in our opinion the Court is permitted and possibly obliged to decide the proceeding on the further material facts and issues raised and addressed at trial: ... If it were otherwise, the party who has failed to plead all of the material facts or issues upon which the party's case relies, but has brought those material facts or issues to the attention of his or her opponent at trial, would be denied natural justice if at the end of the trial the Court decided the proceeding on the pleadings without notice to that party. The first party in those circumstances would have been denied the opportunity to apply to amend those pleadings so as to formalise what was in fact addressed at the trial.

Pleadings are a means to an end and not an end in themselves: ... As early as 1916 Isaacs and Rich JJ said, in [Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490] (at 517):

Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.

121 In applying these principles, the Full Court formulated the relevant question as being whether the party advancing the pleading complaint 'knew the nature of the case they had to meet'.[68] Here, I am readily satisfied that Mrs Robinson was properly on notice of the nature of Ms Amorosi's case for the declaration of a common intention constructive trust in respect of the Boundary Road property. Despite the deficiencies in the pleadings, the general plea in paragraph 207 of the Amended Statement of Claim[69] referred to paragraphs 25 and 26 by way of particulars. Some of the subparagraphs there identified were, on their face, allegations of material facts amounting to detrimental reliance by Ms Amorosi. Furthermore and significantly, Ms Amorosi's claim for a declaration of a common intention constructive trust, including the element of detrimental reliance, was articulated in counsel's written and oral opening. Other than in closing submissions, no objection was taken by counsel for Mrs Robinson to Ms Amorosi's case based on the inadequacy of her pleading of this claim.

122 As McDonald J stated in Campana v Censori:[70]

As an equitable remedy, the imposition of a constructive trust is ultimately a matter of discretion for the Court. In exercising the power to declare a constructive trust, it is necessary to consider whether 'there is an appropriate equitable remedy which falls short of the imposition of a trust'.[71] Such consideration relevantly requires a consideration of the interests of third parties and whether the imposition of the trust might unjustly enrich the plaintiff.[72] ...

123 To the extent that any issue of unjust enrichment arises, it is dealt with in the following section of this judgment: for the reasons there set out, I consider that Mrs Robinson is entitled to restitution in respect of the $650,000 payment. Subject to Ms Amorosi having sole responsibility for the mortgage over the Boundary Road property, I am satisfied that a declaration of constructive trust is the appropriate remedy in the circumstances of the case.

124 In the alternative to her claims for an order that Ms Amorosi specifically perform the Narre Warren agreement or an order that Boundary Road vest in her, Mrs Robinson pleaded claims for restitution in respect of the $650,000 payment. These claims were not elaborated upon in opening and were dealt with only fleetingly in closing submissions.

125 Mrs Robinson pleaded two claims for 'money had and received' by Ms Amorosi to the use of Mrs Robinson. The first was based on a claim of a failure of consideration and was advanced in the following two ways:

(a) that the $650,000 payment was paid to Ms Amorosi in consideration of the Narre Warren agreement which, if no such agreement was made, the amount was paid on a consideration that had failed; and/or

(b) that the $650,000 payment was paid to Ms Amorosi in consideration of her interest in Boundary Road; as a result of Ms Amorosi's failure to convey her half-interest in the property to Ms Robinson, the amount was paid on a consideration that had failed.

126 The second claim for money had and received was advanced on the basis of mistake. If Mrs Robinson was not liable to pay the $650,000 payment under the Narre Warren agreement, it was pleaded that the payment was made by mistake as it was paid to Ms Amorosi in the belief that Mrs Robinson was liable to pay it under the said agreement.

127 Mrs Robinson also pleaded a 'money paid' claim on the basis that, if the $650,000 payment was not payable under the Narre Warren agreement, the amount is repayable by Ms Amorosi as money paid at her request, as the payment was paid to either Llama or to Westpac at her request.

128 Aspects of the law of restitution were recently considered by the High Court in Redland City Council v Kozik.[73] The facts were as follows. A local council was required to undertake certain works in discharge of its statutory functions as a local government authority under relevant legislation. The council had a statutory entitlement to fund the works by levying special charges on land in its local government area which specifically benefitted from the works. After completing the works, the council discovered it had failed to comply with a condition of the process for the levying of special charges; as a result the levying of the special charges was invalid. The council refunded landowners with the amount invalidly collected, but which remained unspent. However, it refused to refund so much as it had spent on the works. Representatives of a group of landowners brought a proceeding against the council for recovery of the unrefunded portion of the special charges each had paid. The claims were brought as a statutory debt due under the relevant statutory regulations and as a common law claim in restitution for moneys paid under mistake of law.

129 The claim for restitution failed at first instance. However, on appeal, by majority the Court of Appeal of the Supreme Court of Queensland determined that the unrefunded portions were recoverable in an action for money had and received on the basis that the payments were made by the landowners under the mistaken belief that they were legally obliged to do so.[74] Before the High Court, it was not in dispute that the landowners had a prima facie ground for restitution based on an operative mistake of law.[75] The relevant question was whether the council had established circumstances to displace that prima facie entitlement. The majority (Gordon, Edelman and Steward JJ) found that it had not done so and dismissed the appeal, upholding the landowners' claim for restitution.[76] The reasoning of the majority and minority was, however, generally consistent in relation to the general principles of the law of restitution as are relevant to this proceeding.

130 The majority explained the emergence of the contemporary approach to unjust enrichment from its historical antecedents as follows:[77]

In Australian common law, unjust enrichment has a "taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another". During the historical period in which cases were pleaded by forms of action, these categories of case were forced, by the use of fictions, into forms (rather than causes) of action, including counts of money had and received, quantum meruit and quantum valebat. Today, as causes of action, the categories include unjustified payments of money or performance of services that benefit another in circumstances where the benefit was the result of mistake, undue influence, duress, or an absence or failure of consideration. Since unjust enrichment expresses only the conclusion that follows the exposed process of reasoning within these categories of case, it has repeatedly been said in this Court that "unjust enrichment" is not a premise that is capable of direct application.

131 A plaintiff is required to establish that a defendant has received 'some benefit for which restitution must be made'.[78] '[R]estitution of unjust enrichment focuses upon the benefit of the transaction between the plaintiff and the defendant. Where a claim for restitution is based on money received by a defendant from a plaintiff, the relevant prima facie benefit is the value of the money paid ...'.[79]

132 The majority referred to the statement in Farah Constructions Pty Ltd v Say-Dee Pty Ltd[80] that restitutionary recovery for unjust enrichment 'depends on the existence of a qualifying or vitiating factor falling into some particular category',[81] with mistake and a failure of consideration being two examples.[82] As to a failure of consideration, the majority referred to Gummow J's observation in Roxborough v Rothmans of Pall Mall Australia Ltd[83] that 'consideration' is a word with different meanings in different contexts.[84] In the law of unjust enrichment, where 'consideration' is concerned 'with a reason for a transaction', it means:[85]

... a "basis", "purpose", or "condition" for a transaction by which one party confers a benefit upon another. That basis, purpose, or condition for the transaction might be a factual or legal state of affairs.

The basis of a transaction might fail immediately at the time of the payment or conferral of the benefit, such as in cases of payments described as being made for an "absence of consideration", "no consideration", or "without" consideration if a basis for the payment was the enforceability of promissory obligations, some or all of which were void. ...

Where the transaction is a contract, a basis that fails need not be an express or implied promise in the contract; it can be "an event or a state of affairs that was not promised". Of course, the transaction might not be a contract between the parties at all. And the benefit conferred might take different forms. The benefit conferred on another by a transaction upon a basis that fails might be the payment of money. It might be the performance of a service. Or it might be the provision of goods. In each case, the basis, purpose, or condition upon which the benefit is conferred is determined objectively, not according to some subjective uncommunicated belief of either party. The objective basis is therefore independent of mistakes of fact or law as the reason for recovery of those benefits conferred upon another party which the other has no right to retain.

133 To the same effect, the minority (Gageler CJ and Jagot J) referred to the reference in Roxborough to a failure of consideration as being a 'payment for a purpose which has failed as, for example, where a condition has not been fulfilled, or a contemplated state of affairs has disappeared',[86] and Gummow J's description of it as 'the failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover'.[87] As the minority stated:[88]

The relevant "purpose" of or "basis" for the payment, although assessed from the perspective of the payer, is objectively and not subjectively determined.

134 The minority also referred to the 'two-stage inquiry into the entitlement of a plaintiff to recover from a defendant an amount of money paid by the plaintiff to the defendant'[89] drawn from the analytical framework for a common law action for restitution set out in ANZ v Westpac[90] and refined in David Securities:[91]

At the first stage, it is sufficient to give rise to a prima facie entitlement to restitution that the plaintiff point to a recognised "qualifying or vitiating factor", such as mistake or duress, having operated on the making of the payment. At the second stage, it is open to a defendant to displace the prima facie entitlement of the plaintiff by pointing to "circumstances which the law recognizes would make an order for restitution unjust". For that purpose, "the recipient of a payment, which is sought to be recovered on the ground of unjust enrichment, is entitled to raise by way of answer any matter or circumstance which shows that his or her receipt (or retention) of the payment is not unjust".

This analytical framework accordingly draws a clear distinction between a specific qualifying or vitiating factor giving rise to the prima facie entitlement to restitution and the circumstances which may enable a "defence" to be established. ANZ v Westpac and David Securities provide no reason for considering that the range of circumstances which may enable a defence to be established to the whole or some part of a prima facie entitlement to restitution should be narrowly confined. The equitable underpinning of the common law action for restitution provides every reason for considering that it should not.

135 In elaborating upon the second stage of the inquiry, the minority stated that:[92]

... the inquiry posited by the defence involves no "direct application" of the concept of unjust enrichment but rather indicates circumstances which can operate to deny an "occasion[] of unjust enrichment supporting claims for restitutionary relief". It therefore fits comfortably within the second stage of the analytical framework for determining the entitlement of a payer to recover money from a payee set out in ANZ v Westpac and David Securities.

In answering the essential question whether an enrichment resulting from a payment is not "unjust" in view of the larger transactional and related context within which the payment has occurred, the required evaluation is qualitative but does not invoke a subjective view of "what is fair or unconscionable". The relevant quality of unjustness, or its lack, is to be understood in a sense that is "descriptive, accumulative and incremental". The quality of unjustness required is also not to be evaluated "by reference to some preconceived formula framed to serve as a universal yardstick" but rather "involves a real process of consideration and judgment" in which the ordinary processes of legal reasoning by induction and deduction from settled rules and decided cases are applicable but are likely to be inadequate to exclude an element of value judgment in a borderline case.

The defence can accordingly be treated as broadly descriptive of categories of circumstances in which Australian law might recognise the making of an order for restitution to be unjust when receipt and retention of a payment affected by a vitiating factor, such as mistake or duress, is viewed in the context of other rights and obligations of the payer and payee.

136 Mrs Robinson's money had and received claim based on a failure of consideration must fail. She has not, for the following reasons, established a prima facie entitlement to restitution on that ground in respect of the $650,000 payment.

137 Consistent with the principles expressed in Redland, the focus of the inquiry is to identify the basis, purpose or condition upon which the benefit of the $650,000 payment was conferred on Ms Amorosi. This is to be 'determined objectively, not according to some subjective uncommunicated belief of either party'.[93] As Mason P stated in Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd,[94] cited with approval by Gageler CJ and Jagot J in Redland,[95] 'the critical point is that it is the benefit bargained for as distinct from that subjectively contemplated by the plaintiff/payer that is critical'.[96] This requires a determination of 'the state of affairs which was within the contemplation of the parties as the basis of their dealings', or 'the state of affairs contemplated as a basis for the payments' sought to be recovered.[97]

138 The substance of Mrs Robinson's pleading is that the basis, purpose or condition for the making of the $650,000 payment was the Narre Warren agreement. Putting aside Mrs Robinson's unexpressed subjective views as to why the payment was made,[98] considered objectively, this claim is unsustainable in light of my finding that there was no such agreement as alleged.

139 The same result follows in relation to the alternative formulation based on Ms Amorosi's failure to convey her half-interest in Boundary Road to Mrs Robinson upon the making of the $650,000 payment. No case was advanced on behalf of Mrs Robinson as to those facts and circumstances which, objectively considered, supported a finding that the transfer of Ms Amorosi's interest in Boundary Road was the basis, purpose or condition for the making of the $650,000 payment. Mr Robinson's subjective characterisation of Ms Amorosi's statements to him referred to in [35] as amounting to a proposal to 'swap' McKenzie Lane for Boundary Road above is not relevant to that task.

140 In relation to Mrs Robinson's money had and received claim based on mistake, as stated by the High Court in David Securities, '[t]he fact that the payment has been caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the respondent to make restitution'.[99] This is because 'causative mistake is a circumstance which the law recognises to be prima facie sufficient to make the recipient's receipt, and retention, of the payment unjust'.[100] In order to displace prima facie liability, a defendant must point to circumstances which the law recognises would make an order for restitution unjust.[101] Ms Amorosi does not raise any such 'defences' in relation to her receipt and retention of the $650,000.

141 Given these principles, the question is whether the making of the $650,000 payment was caused by Mrs Robinson's mistaken belief that she was liable to make the payment under the Narre Warren agreement, as Mrs Robinson alleged. This question must be answered in the negative given my finding that there was no such agreement. This is not a case where the existence of an agreement between parties was uncontroversial, but where a plaintiff has made a payment under a mistaken belief about, for example, the obligations imposed by the agreement, or the effect of its terms. I have found that the Narre Warren agreement as alleged did not exist at all. It accordingly could not have formed the basis of a mistaken belief which resulted in the making of the $650,000 payment.

142 It remains to consider Mrs Robinson's alternative claim that, if the $650,000 payment was not payable under the Narre Warren agreement, it is repayable by Ms Amorosi as money paid at her request because the payment was made to either Llama or to Westpac at her request.

143 In Lumbers v W Cook Builders Pty Ltd (in liq),[102] the High Court described the payment of money, for and at the request of another, as one of the: [103]

... archetypal cases in which it may be said that a person receives a "benefit" at the "expense" of another which the recipient "accepts" and which it would be unconscionable for the recipient to retain without payment.

A claim for restitution formulated in this way reflects the traditional money paid count, that is, money paid at one party's request to the benefit of another, and falls within long-established principles.[104] In such claims, it is essential that the payment was requested by the defendant;[105] liabilities 'are not to be forced upon people behind their backs'.[106]

144 Counsel for Ms Amorosi submitted that this claim should fail for two reasons: first, because there was no request for the payment of money by Ms Amorosi as pleaded; and secondly, even if the money was paid at Ms Amorosi's request, it was not unconscionable to deny relief.

145 The first of these contentions is rejected. The particulars of the claim refer to: (a) the alleged term of the Narre Warren agreement that, in consideration for receiving Boundary Road for her sole use and benefit, Mrs Robinson would pay Ms Amorosi $650,000 upon request by Ms Amorosi; and (b) (as is presently relevant), that upon the settlement of the sale of McKenzie Lane, Mrs Robinson 'in agreement with' Ms Amorosi 'directed payment in the sum of $650,000 to Westpac'. While the use of the words 'in agreement with' arguably create some ambiguity, they are sufficient to convey an allegation that Ms Amorosi had requested that the $650,000 be paid to reduce the Westpac loan. The truth of that allegation is readily implied or inferred from the facts set out in [35] above and from the content of Mr Robinson's email to Ms Amorosi dated 11 Sep[107]ber 2012.107 A request need not be made expressly; it may be 'implied from the actions of the parties in the circumstances of the [108]e';108 it may also be inferred from the facts [109]the case.109

146 As to the second contention advanced on behalf of Ms Amorosi, counsel submitted that it would not be unconscionable to deny relief to Mrs Robinson because the $650,000 payment was made for two personal reasons. First, reference was made to Mrs Robinson's evidence that an additional $60,000 was paid as a 'bonus', indicating that the payment was made out of concern for Ms Amorosi. While this may be accepted in relation to this additional 'bonus' payment, it says nothing about the purpose of the $650,000 payment.

147 Secondly, it was submitted that Mrs Robinson and Mr Robinson had a personal interest in reducing the Westpac loan, and Mr Robinson had a responsibility to ensure that Llama could service it because, by 2014 Mr Robinson was the director of Llama, Boundary Road was secured against the Westpac loan and Mrs Robinson was a guarantor for the loan. This submission ignores the fact that the $650,000 payment comprised the proceeds of sale of McKenzie Lane, the purchase of which had been wholly funded by Mrs Robinson and Mr Robinson personally. It also ignores the fact that the $650,000 payment was used to pay down the Westpac loan which had been extended in 2012 by $1.2 million to purchase Ms Amorosi's home at Saddlebow Road and from which Ms Amorosi was ultimately paid $356,000 when it was sold in early 2015. There is also no evidence to suggest that the value of Boundary Road would have been insufficient to repay the mortgage over the property.

148 I accordingly do not accept the submission made on behalf of Ms Amorosi that it would not be unconscionable to deny Mrs Robinson relief in respect of the $650,000 payment made to Westpac from the proceeds of sale of McKenzie Lane at Ms Amorosi's request. Mrs Robinson is entitled to restitution in the amount of $650,000.

149 There is a dispute between the parties as to the interest rate to be applied to the amount of $650,000 to which Mrs Robinson is entitled by way of restitution, and the date from when interest is payable.

150 Mrs Robinson seeks that interest be awarded from 23 May 2014, being the date when the $650,000 payment was made, and for interest to be calculated at the highest rate which it is open to the Court to impose. It is convenient to first consider the date from when interest may be imposed.

151 The Court's statutory power to impose interest is contained in ss 58 and 60 of the Supreme Court Act 1986 which relevantly provide as follows:

58. Interest to be allowed when debts or sums certain recovered

(1) If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

(2) Subsection (1) does not authorise the computation of interest on any bill of exchange or promissory note at a higher rate than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 if there has been no defence pleaded.

(3) A debt or sum payable or a date or time is to be taken to be certain if it has become certain.

60. Interest in proceedings for debt or damages

(1) The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

(2) Nothing in this section -

(a) authorises the granting of interest on interest;

(b) applies in relation to any sum on which interest is recoverable as of right by virtue of any agreement or otherwise;

(c) affects the damages recoverable for the dishonour of a negotiable instrument;

(d) authorises the allowance of any interest otherwise than by consent on any sum for which judgment is entered or given by consent;

(e) applies in relation to any sum on which interest might be awarded by virtue of section 58 or 59; or

(f) limits the operation of any enactment or rule of law which, apart from this section, provides for the award of interest.

152 It is apparent that s 60 is not a source of power to award interest from May 2014 when the $650,000 payment was made: the section deals with the award of interest from the date when a proceeding was commenced. If it is available, any statutory power to award interest from when the $650,000 payment was made must be found in s 58.

153 The power under s 58 of the Supreme Court Act 1986 is expressed to apply to the recovery of a 'debt or sum certain'. It was uncontroversial that Mrs Robinson's money paid claim in respect of the $650,000 payment was a proceeding for recovery of a debt. Section 58 accordingly requires that, unless good cause is shown to the contrary, the Court must allow interest on that amount at a rate:

...not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

In the circumstances of this case, if the $650,000 payment was 'payable otherwise', the 'time when demand of payment was made' was 24 February 2023, being the date when Mrs Robinson filed her Amended Defence and Counterclaim: this was the first occasion when Mrs Robinson advanced a claim for restitution in respect of the $650,000 payment.

154 To avoid this result, counsel for Mrs Robinson submitted that the $650,000 payment was 'payable by virtue of some written instrument' and that, in the terms of s 58, interest was therefore payable 'from the time when the debt or sum was payable', being from 23 May 2014. It was submitted that, although 'some written instrument' was not defined, what gave rise to the right of restitution was the fact of the payment of $650,000 for a consideration which had failed or as a consequence of a payment by mistake. That payment occurred on 23 May 2014 by way of a bank transfer or bank deposit. It was submitted that such a transaction could only occur by an instrument in the form of instructions to the bank, whether electronic or in the form of a deposit slip, to transfer or pay money from one place to another. The making of the $650,000 payment on 23 May 2014 therefore necessarily involved the creation of a written instrument with the consequence that interest was payable from that date.

155 I reject this submission. First, whether or not the making of the $650,000 payment necessarily involved the creation of a written instrument, there is no basis to find that it was 'payable by virtue of' some written instrument. In Stephens v Cameron,[110] the Court of Appeal discussed the operation of s 58 in terms which make clear that the expression 'payable by virtue of' directs attention to the source of the liability to pay the debt or sum certain.[111] Analogously with the Court of Appeal's observations in that case, Ms Amorosi's liability to pay $650,000 to Mrs Robinson arises under the law of restitution on a claim for money paid; liability does not arise by reason of any written instrument. Secondly and in any event, the grammatical construction of s 58 and the parenthetical framing of the expression 'if payable by virtue of some written instrument and at a date or time certain' upon which Mrs Robinson relies, indicates that that expression applies 'in respect of any bill of exchange or promissory note' referred to earlier in the section, and which has no application in this proceeding.

156 It follows from the above analysis that, in its application in the circumstances of this case, s 58 of the Supreme Court Act 1986 does not permit the Court to award interest on the amount of $650,000 from 23 May 2014 as sought by Mrs Robinson. Insofar as interest is to be awarded by operation of the above statutory provisions, the earliest date from which interest would be payable is 25 March 2021, being the date when the proceeding was commenced pursuant to s 60.

157 Any capacity to award interest from 23 May 2014 is therefore dependent the existence of such a power, notwithstanding the above statutory powers, in exercise of the Court's general jurisdiction at common law or in equity. The existence of these powers, which raise matters of substantial complexity and uncertainty, were the subject of only limited submissions by counsel on behalf of Mrs Robinson. For the reasons which follow, I was not persuaded that, in the circumstances of this proceeding, the Court has power to award interest in the exercise of its general common law jurisdiction or in equity.

158 In Commonwealth v SCI Operations,[112] McHugh and Gummow JJ stated that the authorities did not favour the acceptance of a 'free-standing' right to recover interest where a defendant has had the use of the plaintiff's money in circumstances which indicate an unjust enrichment at the expense of the plaintiff.[113] Although the Court of Appeal in Peet Ltd v Richmond[114] and then in Stephens v Cameron[115] later referred to interstate authorities where a free-standing right to recover interest had been recognised in particular circumstances, these were cases involving claims for moneys had and received. The restitutionary claim upheld in this proceeding is not of that type. I was not referred to any authorities involving restitutionary money paid claims in which interest was awarded in the exercise of a court's general common law power or at equity. As a trial judge it is appropriate to give effect to the general statements of principle by McHugh and Gummow JJ in SCI in relation to restitutionary claims and the absence of a free-standing right to interest.

159 In adopting that course, I note that, subsequent to SCI, the House of Lords in Sempra Metals Ltd v Inland Revenue Commissioners[116] recognised the Court's common law jurisdiction to award interest, both simple and compound, in relation to damages on claims for non-payment of debts. The holding of the House of Lords was helpfully summarised in the following way by Sloss J in ACN 005 057 349 Pty Ltd v Commissioner of State Revenue:[117]

The House of Lords held that a court has jurisdiction to award compound interest where a claimant is seeking restitution of money paid under mistake, but their Lordships were divided as to whether such an award should be made in the exercise of the court's common law restitutionary jurisdiction (Lord Hope, Lord Nicholls and Lord Scott were of that view) or in the exercise of the Court's equitable jurisdiction (Lord Walker and Lord Manse). This represented a departure from the earlier decision of the House of Lords in Westdeutsche where their Lordships had declined to supplement the statutory right allowing for simple interest, by the making of an award of compound interest. In Sempra, the majority (Lord Hope, Lord Nicholls and Lord Walker) determined that, in circumstances where the assumption that the government had derived some benefit from the premature payment of the tax was not displaced, compound interest should be awarded to the taxpayer, calculated at the rate at which the Government would be able to borrow money in the market during the relevant period.

160 In Peet, Nettle JA expressed doubt as to whether the High Court would follow Sempra. Although it would appear that the occasion for that consideration has yet to emerge, in Prudential Assurance Company Ltd v Commissioners for Her Majesty's Revenue and Customs, the Supreme Court of the United Kingdom expressly disapproved the reasoning in Sempra.[118] The Supreme Court summarised the decision of the House of Lords by reference to two propositions, the first of which is presently relevant and was expressed as follows:[119]

(1) By a majority consisting of Lord Hope, Lord Nicholls and Lord Walker, the House held that the court had jurisdiction at common law (Lord Hope and Lord Nicholls) or at least in equity (Lord Walker) to make an award on the ground of unjust enrichment in respect of the time value of money which was paid prematurely as the consequence of a mistake. The basis of the award was that the benefit by which the recipient of the money was enriched was the time value of the money. The benefit was presumptively quantified as the market value of the use of the money during the period before it was lawfully due, that is, the cost of borrowing an equivalent amount in the market.

161 The Supreme Court also made the following statements of principle in relation to an award of interest:[120]

As to the basis on which interest is payable, a clear explanation was provided by Lord Wright, a judge who was well aware of unjust enrichment (see, for example, Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1942] UKHL 4; [1943] AC 32), and had also had to consider interest as a member of the Law Revision Committee which reported in 1934, mentioned earlier. In Riches v Westminster Bank Ltd [1947] AC 390, 400, he stated:

"... the essence of interest is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or conversely the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation."

Once it is understood that the claim to interest is not truly based on unjust enrichment but on the failure to pay a debt on the due date, the conclusion inevitably follows that interest can be awarded on the claims within categories (b) and (c) under section 35A of the 1981 Act: see BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, and Sempra Metals at paras 104 (Lord Nicholls) and 175 (Lord Walker).

162 The judgment of the Supreme Court of the United Kingdom in Prudential is persuasive authority which I should follow.[121] It provides a comprehensive analysis as to why Sempra should not be followed which I respectfully adopt.

163 Finally, I note for completeness that none of the specific circumstances where it is established that equity may permit the award of compound interest arise in this proceeding. [122]

164 As Mrs Robinson has failed to persuade me as to the existence of any general free-standing right for the Court to award interest at common law or equity, her claim for interest falls to be determined by application of ss 58 and 60 of the Supreme Court Act 1986. In the unusual circumstances of this case (where the demand for payment in respect of the amount of $650,000 was made after the proceeding was commenced)[123] and noting the terms of s 60(2)(e),[124] ss 58 and 60 apply to the following respective periods:

(a) section 60 applies to the period between 25 March 2021 - 24 February 2023, being the period between when the proceeding was commenced[125] and when the demand for payment was made; and

(b) section 58 applies in the period thereafter until the date of judgment.[126]

165 The discretions vested in the Court by ss 58 and 60 are cast in the same terms: the Court must, unless good cause is shown to the contrary, award interest at a rate not exceeding the rate fixed under s 2 of the Penalty Interest Rates Act 1983 (the Penalty Interest Act). The parties' submissions were advanced on the basis that there was no difference in the determination of the rate of interest under both sections. In considering the exercise of these discretions, I also note that, although s 60(2)(a) makes clear that any interest awarded under that section is to be determined on a nominal and not compound rate,[127] it was accepted by counsel for Mrs Robinson that the same approach was to be adopted to the determination of interest under s 58.

166 The leading authorities and principles relating to the rate of interest to be applied under s 58 were summarised by the Court of Appeal in Australia Kunqian International Energy Co Pty Ltd v Flash Lighting Company Ltd as follows:[128]

The purposes of s 58(1) of the SCA include compensating a plaintiff for being kept out of his or her money[129] and encouraging a defendant to settle early.[130] The [Penalty Interest Act] rates may contain a 'penalty element'.[131] Although it is not one of the purposes of s 58(1) to punish a defendant, by authorising awards of interest at the [Penalty Interest Act] rates, s 58(1) recognises that such awards may have a punitive effect.[132]

Section 58(1) of the SCA does not mandate application of the [Penalty Interest Act] rates unless good cause to the contrary is shown.[133] Rather, it designates those rates as the maximum rates that may be applied, leaving the Court with a discretion to apply lower rates. Nevertheless, the practice in Victoria is to treat the maximum rate as the starting point for the exercise of the discretion.[134] Where a defendant contends that the facts and circumstances of the case warrant adopting a lower rate, evidence is required as to an appropriate lower rate.[135] Mere reliance by a defendant in broad terms on the fact that the [Penalty Interest Act] rates are higher than market rates is not in itself a sufficient reason to apply a lower rate.[136]

The same general principles may be taken to apply in relation to the determination of interest under s 60.

167 In Australia Kunqian, the Court of Appeal stated as follows in relation to the application of these principles:[137]

In accordance with the above principles, we have treated the [Penalty Interest Act] rates as the starting point for determining the rates to be applied in the present case. We were not satisfied on the basis of the submissions made by FLC that we should depart from that starting point. Those submissions amounted to no more than a proposition that the [Penalty Interest Act] rates should not be adopted because they were significantly higher than market rates. However, the mere fact that the [Penalty Interest Act] rates are higher than market rates - which has been the case over recent years - has never been treated as sufficient in itself for not adopting the [Penalty Interest Act] rates. In order for the Court to depart from the starting point of the [Penalty Interest Act] rates, the party liable to pay interest must adduce some evidence - or point to evidence adduced by another party - indicating that the circumstances of the case warrant a lower rate being adopted.

168 It is also helpful to set out the following extract from the judgment of the Full Court in Clarke to which the Court of Appeal referred in Australia Kunqian:[138]

... power to fix a lesser rate does not depend upon "good cause [being] shown to the contrary"; it depends upon the simple fact that s. 58(1) purports to prescribe only a maximum rate. By directing the court to allow interest "at a rate not exceeding" the rate fixed under s. 2 of the [Penalty Interest Act] the court is otherwise left at large and, to that extent, has a discretion in the matter. It is, of course, a discretion to be exercised judicially but, by the same token, such a discretion may not be circumscribed by attempts to define what must or must not be taken into account when the discretion falls to be exercised.

The purpose of the statutory power to allow interest 'is to compensate the plaintiff for being kept out of his money, although not because he has on that account lost the opportunity to invest it, but because he has thereby been deprived of its use'.[139]

169 In Viterra Malt Pty Ltd v Cargill Australia Ltd,[140] the Court of Appeal referred to the recognition in Hartley Poynton[141] that the rate prescribed by the Penalty Interest Act:

(a) 'reflects a policy that interest otherwise payable pursuant to statutory provisions, whether under the [Penalty Interest Act] or elsewhere, should, where appropriate, do more than merely place the plaintiff in a position formerly held before the relevant claim was made';[142] and

(b) 'has usually been well in advance of what might be earned by its investment on the money market on a conservative basis, whether at short term or long term rates, and, more often than not, is in excess of what might be expected to be obtained by way of return on other conventional investments'.[143]

170 The onus is on Ms Amorosi to establish good cause to depart from the starting position whereby interest is awarded and calculated at penalty interest rates. The submission was put on her behalf that there was good cause to not award Mrs Robinson any interest at all on the basis that, had the $650,000 payment never been made to Llama, McKenzie Lane would have remained in the ownership of Mr and Mrs Robinson, untenanted and earning no income, on the basis that the evidence was that McKenzie Lane was rented out for only 2 years in the period between 2001 and 2015.

171 I do not accept this submission. First, the evidence about the length of time McKenzie Lane was rented out was vague and incomplete. The most that can be discerned is that the property was tenanted for at least two years in the period between 2001 and 2015, and only for a small rental in that two year period. Furthermore, no evidence was adduced as to what Mr and Mrs Robinson would have done in relation to the property if they had not sold it as they did in 2014. Additionally, even if they had only retained ownership of the property without receiving rental income from it, the likelihood is that Mr and Mrs Robinson would have enjoyed some appreciation in its value in the relevant period since 2018. That residential property in the greater Melbourne area has increased in value in recent years is a matter of notoriety about which it is appropriate for the Court to take judicial notice. It is appropriate for Mrs Robinson to be compensated for being kept out of her money held in the McKenzie Lane property as she has been deprived of its use.

172 In the alternative, it was submitted on behalf of Ms Amorosi that a restitutionary interest rate in the order of 2% should be applied, given the generally low interest rates which have applied since 2014. I also reject this submission. It ignores the purposes and considerations which underpin the identification of penalty interest rates as the starting point for the award of interest as explained in Hartley Poynton referred to in [169] above, and no evidence was adduced to warrant the adoption of a lower rate of interest. The reliance on the judgment of the Court of Appeal in _MLC Nominees Pty Ltd v [144]fy (No 2)_144 is also misplaced as it concerned the issue of a successful appellant's entitlement to interest on a judgment sum repayable following an appeal. As the Court of Appeal explained, good authority established that, in that category of case, the rate of interest payable to a successful appellant was not the penalty interest rate referred to in ss 58 or 60 of the Supreme Court Act 1986, but a rate calculated to restore to the appellant 'the fruits of the judgment' and to do justice between [145] parties.145

173 Ms Amorosi has not established good cause to depart from the general position that interest be awarded and calculated at penalty interest rates. Accordingly, Mrs Robinson is entitled to interest at the rate of 10%, being the rate prescribed by s 2 of the Penalty Interest Rate Act, on the amount of $650,000 for the period between 25 March 2021 and the date of judgment.[146] This equates to an amount of $219,486.33.[147]

(a) subject to assuming sole responsibility for all liabilities under the Westpac loan, Ms Amorosi is entitled to appropriate relief declaring that Llama holds its interest in the second US property on trust for her, and for orders that she be substituted in place of Llama as trustee of the Llama Trust;

(b) Mrs Robinson's claims in respect of the Boundary Road property based on the alleged Narre Warren agreement and adverse possession must fail;

(c) subject to Ms Amorosi assuming sole responsibility for the mortgage over the Boundary Road property, Ms Amorosi is entitled to appropriate relief declaring that Mrs Robinson holds her interest in Boundary Road on a common intention constructive trust for the benefit of Ms Amorosi;

(d) Ms Amorosi is required to make restitution to Mrs Robinson in the amount of $650,000; and

(e) Ms Amorosi is required to pay Mrs Robinson $219,486.33 by way of interest in respect of the above restitutionary amount.

175 The Court will provide the parties with an opportunity to submit minutes of orders to give effect to these reasons for judgment and to make any submissions on costs.

[1] Being income earned by her personally or by Vanjoy Pty Ltd (Vanjoy), a company established to receive the income and royalties from her singing career.

[2] Paragraphs 207 and 208 of the Amended Statement of Claim filed on 6 April 2022. In the alternative, Ms Amorosi pleads that, pursuant to s 228 of the Property Law Act 1958, it is fair and just for the Court to order Boundary Road to be sold and for the net proceeds of sale to be given to her. In the further alternative, it is alleged that Mrs Robinson holds her interest in Boundary Road on a resulting trust for Vanjoy (as to 42%) and for Ms Amorosi (as to 58%).

[3] Paragraphs 25 and 207 of the Further Amended Defence filed 12 October 2023 (the Defence).

[4] Paragraphs 210B-210C of the Defence.

[5] This is a reference to the payment made to Llama's Westpac loan in the amount of $710,790.98 referred to in paragraph 12 above. See further [38] below.

[6] Mr Terrence McMaster was also appointed and then ceased as a director of the company on the same day.

[7] [2015] NSWSC 451, [94].

[9] [2019] NSWSC 617 ('Diransson Pty Ltd v Hassan El Dirani').

[10] [1995] NSWCA 497; [1995] 49 NSWLR 315 ('Watson v Foxman').

[11] Diransson Pty Ltd v Hassan El Dirani (n 9), [463].

[13] (2003) 214 CLR 118 [31].

[14] [2021] NSWCA 85.

[16] 3 Apples Childcare Centre Pty Ltd v MMC Pacific International Pty Ltd [2023] VSC 21, [143]-[144].

[18] Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599, [15]-[16], upholding the approach of Tamberlin J in the Federal Court of Australia, in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995) 122-3.

[19] _Gestmin SGPS SA v Credit Suisse (_UK) Ltd [2013] EWHC 3560 (Comm), [22]. See also Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, 48 [34] ('[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.').

[20] [2021] NSWSC 1456 ('Stone v Kramer').

[21] Kramer v Stone [2023] NSWCA 270 ('Kramer v Stone'). The High Court granted special leave to appeal on 11 April 2024.

[22] Ibid [277]; Stone v Kramer (n 20) [182]-[183].

[24] It was not removed as a party until an order made on 12 October 2023.

[25] [2017] VSCA 258, [171].

[26] (1893) 6 R 67 ('Browne v Dunn').

[28] Copmanhurst Shire Council v Watt [2005] NSWCA 245, [46] (Giles JA with whom the other members of the Court of Appeal agreed).

[29] He v Huang (No 2) [2017] VSCA 349, [71] and the authorities there cited.

[31] Diransson Pty Ltd v Hassan El Dirani (n 9) [471], omitting citations.

[32] The amount of the loan in respect of the purchase of the Officer property was not in evidence.

[33] See [2424] above.

[34] The only evidence about the cost of these improvements was Mr and Mrs Robinson's evidence that the concreting of the driveway cost between $17,000 - $18,000, and Mr Robinson's evidence that they spent about $5000 for a pack of timber to build a deck on the property.

[35] See [2929] above.

[36] They having been established on 21 September 2001.

[37] [2018] FCAFC 72.

[39] See [3131] above.

[40] See [3636] above.

[41] See [4545] above.

[42] Mr Robinson's email dated 23 November 2015 referred to in [4646] above.

[43] See [4747] above.

[44] [2009] VSCA 188; (2009) 259 ALR 56 ('Whittlesea City Council v Abbatangelo').

[45] [2002] VSC 206 [39] ('Bayport Industries Pty Ltd v Watson').

[46] (1979) 38 P and CRL 452 at 470-472.

[47] Bayport Industries Pty Ltd v Watson (n 4545), [40] citations omitted.

[48] Whittlesea City Council v Abbatangelo (n 4444), [6].

[49] [2023] VSCA 162 ('Gianchino').

[50] Section 14(4) states: 'When any one or more of several persons entitled to any land or rent as joint tenants or tenants in common have been in possession or receipt of the entirety or more than his or their undivided share or shares of such land or of the profits thereof or of such rent for his or their own benefit or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons or any of them but shall be deemed to be adverse possession of the land'.

[51] Gianchino (n 4949), [41].

[53] Ibid [25] approving the summary of the trial judge in relation to a case involving joint tenants.

[55] The claim of adverse possession first appeared in the Further Amended Defence filed on 12 October 2023.

[56] [2005] NSWSC 42, [31] (Shepherd v Doolan). See Ward CJ in Eq (as she then was) in Bassett v Cameron [2021] NSWSC 207, [563]; Galati v Deans & Ors [2023] NSWCA 13, [148] (Basten AJA name with whom Macfarlan JA agreed).

[57] Shepherd v Doolan (n 56), [34]-[42].

[58] [2018] VSC 413, [402] omitting citations.

[59] [2020] VSCA 336.

[61] [1985] HCA 78; (1985) 160 CLR 583.

[62] Susan Jacqueline Barkehall Thomas, 'Proprietary Estoppel and Common Intention Constructive Trusts:

Is it Time to Abandon the Distinction?' (2014) 2014(1) Singapore Journal of Legal Studies 168.

[63] See [21] and [23] above. See for example Campana v Censori [2023] VSC 502, [132] (McDonald J) ('Campana v Censori').

[64] [2023] VSCA 108; (2023) 71 VR 581, [61] (citations omitted).

[65] See [5151] above.

[66] [2010] FCAFC 133; (2010) 189 FCR 356.

[67] Ibid [50]-[52] (omitting citations, emphasis of the Full Federal Court in italics, my emphasis in bold).

[69] Paragraph 207 of the Amended Statement of Claim pleads: 'There was a common intention, on the part of Joy, Vanessa and Vanjoy, that Joy's interest in the Narre Warren Property would be held on trust for Vanessa'.

[70] Campana v Censori (n 63), [135].

[71] Giumelli v Giumelli (1999) 196 CLR 101, 113.

[72] Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120, 126 [15].

[73] [2024] HCA 7 ('Redland').

[74] Redland City Council v Kozik (2022) 11 QR 524, [43]-[44].

[77] Ibid [179] (citations omitted). And see the minority at [60], [71], [72] (citations omitted).

[80] (2007) 230 CLR 89.

[83] [2001] HCA 68; (2001) 208 CLR 516, [103] ('Roxborough').

[84] Ibid [103]; Redland (n 73), [183].

[85] Redland (n 73), [183]-[185] (citations omitted).

[87] Ibid [104]; Redland (n 73), [86].

[88] Redland (n 73), [86] (citations omitted).

[90] Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662 ('ANZ v Westpac').

[91] David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 ('David Securities'); Redland (n 73), [73]-[74] (citations omitted).

[92] Redland (n 73), [97]-[99] (citations omitted).

[94] [2005] NSWCA 83; (2005) 63 NSWLR 203 ('Fostif').

[97] Ibid, citing Roxborough (n 83), [17] (per Gleeson CJ, Gaudron J and Hayne J) and [104] (per Gummow J).

[98] See [38] above.

[100] As stated by Gageler J (as he then was) in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560, 605.

[102] [2008] HCA 27; (2008) 232 CLR 635 ('Lumbers').

[104] As explained by Tate JA (with whom Ashley JA and Neave JA agreed) in Hendersons Automotive Technologies Pty Ltd (in liq) v Flaton Management Pty Ltd [2011] VSCA 167; (2011) 32 VR 539.

[105] Lumbers (n 103), [49], [79]-[80], [86], [89].

[106] Falcke v Scottish Imperial Insurance Co [1886] UKLawRpCh 230; (1886) 34 Ch D 234, 248; cited in Lumbers (n 102), [80].

[107] See [3636] above.

[109] Woolcorp Pty Ltd v Rodger Constructions Pty Ltd [2017] VSCA 21, [132].

[110] [2021] VSCA 208 ('Stephens v Cameron').

[112] [1998] HCA 20; (1998) 192 CLR 285 ('SCI').

[114] [2011] VSCA 343; (2011) 33 VR 465, [125]-[126] ('Peet').

[115] Stephens v Cameron (n 110), [110]-[113].

[116] [2007] UKHL 34; (2008) 1 AC 561 ('Sempra').

[117] [2015] VSC 76, [225] (citations omitted).

[118] [2018] UKSC 39, [79] ('Prudential').

[121] The same approach was adopted by Curthoys J in Gray v Lavan (A Firm) [2022] WASC 417, [82].

[122] See, for example, Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1 at [125] where Kiefel CJ, Bell, Keane, Nettle and Gordon JJ referred to the line of authorities which establish that compound interest may be awarded in equity in cases where money is obtained or withheld by fraud or in breach of fiduciary duty and the award is made in lieu of an account of profits.

[123] See [153153] above.

[124] Section 60(2)(e) provides that nothing in s 60 'applies in relation to any sum on which interest might be awarded by virtue of section 58 or 69'.

[125] As stated by Tadgell JA (with whom Phillips and Callaway JJA agreed) in Braeside Bearing Pty Ltd v HJ Brignell & Associates (Boronia) (a firm) [1996] VSC 348; [1996] 1 VR 17 at 19 in relation to s 60 of the of the Supreme Court Act 1986, 'a proceeding is to be understood to mean not the subject of a justiciable dispute but the means or the vehicle by which the subject matter of a dispute is brought before the court for adjudication'.

[126] Section 58 allows interest to be awarded up to entry of judgment: Rosenberg v Fifteenth Eestin Nominees Pty Ltd (No 3) [2011] VSC 66, [27]; Seoud v Fortythird Garland Pty Ltd 57 VR 262, [95].

[127] See s 60(2)(a).

[128] [2020] VSCA 259, [41]-[42] ('Australia Kunqian').

[129] MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, 663; [1991] HCA 3.

[130] Grincelis v House [2000] HCA 42; (2000) 201 CLR 321, 328-9 [16]; [2000] HCA 42.

[131] Penalty Interest Act, s 2(2)(b); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [No 3] [2003] VSC 244, [46], [60], [67]-[70] ('Johnson Tiles').

[132] Clarke v Foodland Stores Pty Ltd [1993] VicRp 81; [1993] 2 VR 382, 396-7 ('Clarke').

[134] Johnson Tiles (n 131), [64]; Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568, 618 [107]('Hartley Poynton'); Amcor Ltd v Barnes [No 2] [2019] VSC 849, [73]-[84].

[135] See, e.g., Johnson Tiles (n 131), [75].

[136] Hartley Poynton (n 134), 617-18 [106].

[137] Australia Kunqian (n 128), [43].

[138] Ibid [42]; Clarke (n 132), 389.

[140] [2023] VSCA 157, [1267].

[143] Ibid (Ormiston JA, Buchanan JA agreeing at [113], Eames JA agreeing at [114]).

[144] [2018] VSCA 10.

[146] Over which time the rate prescribed by s 2 of the Penalty Interest Rate Act was unchanged at 10%.