Robinson v Rouse [2005] TASSC 48

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, applied.

Judgment Number: [2005] TASSC 48

1 Following the breakdown of a marriage-like relationship between the parties, the plaintiff has brought this action seeking a declaration that certain assets are held on a constructive trust for him and the defendant in equal shares, and orders for the sale of those assets and the equal division of the proceeds of sale between them. The assets in question comprise a house property of about 4.2 hectares near Sheffield, an adjacent farm property of about 43.6 hectares, the contents of the house on the house property, cattle, horses, farming plant and equipment, and money in bank accounts. The defendant is the registered proprietor of the two pieces of real estate, and has possession of the other disputed assets.

2 The house property and the farm property originally comprised a single parcel of land. It belonged to members of the Davies family. The last generation of that family consisted of a sister ("Miss Davies") and two brothers. None of them married or had any children.

3 The defendant grew up in the Sheffield area. He comes from a large family. His family got to know the Davies family during his childhood. He began to visit the Davies family, who lived on the property and operated it as a dairy farm. The defendant began spending nights in the Davies household, and going to school from the Davies property in the mornings. In 1971, when he was 11 years old, he ceased residing with his family, and took up residence in the Davies household. He milked their cows twice a day, and assisted the elderly members of the Davies family by doing farm work for them. After leaving school, he trained as a nurse. He continued to live on the Davies property. In fact he obtained permission not to live in the nurses' home of the Mersey General Hospital during his training.

4 By about 1982, as the result of her relatives having died, Miss Davies had become the sole owner of the farm. She continued working in the dairy, milking cows, until she was 73 years old, but then decided to run beef cattle instead of a dairy herd. The defendant did substantial work on the farm. While it was still a dairy farm, he milked cows, and arranged for paid workers to milk cows when he was unavailable because of his work as a nurse.

5 The parties formed a steady sexual relationship in early 1985. They regarded the defendant's 25th birthday in February 1985 as the day that their relationship commenced, and held anniversary celebrations on his birthday during the years that their relationship continued. However, they did not commence cohabitation for several years. Before meeting the defendant, the plaintiff had worked as a photographer, and had worked for some years as a partner in a restaurant business in Devonport. He sold his interest in that business in 1984 for $7,500, and bought an elderly car with some of that money. In February 1985 he was living in a caravan park at Eugenana, with little by way of assets, apart from that car. He moved from there to a caravan park at Sheffield, where he took up residence in a cheap caravan that the defendant had purchased. They made this arrangement so that they could be closer.

6 After taking up residence in Sheffield, the plaintiff felt somewhat uncomfortable there. He contemplated travelling on the mainland. He purchased an old bus, and started to make improvements to it. He discussed the future with the defendant. The defendant was reluctant to leave the Sheffield area, particularly while Miss Davies was still alive. The parties decided that the defendant should speak to Miss Davies about her intentions for the future of the property. He asked her about her intentions, and she indicated that she would leave the property to him in her will. At some stage, possibly years later, she showed him her will. By her last will, which she made in October 1993, she left her whole estate to him, and appointed him as her executor.

7 Following the defendant's conversation with Miss Davies about her intention for the future of the property, the plaintiff abandoned the idea of travelling on the mainland. From that time on, until the breakdown of their relationship, it was the intention of both parties to live together, and to operate the Davies farm together after Miss Davies' death. Although the plaintiff had had no experience of farm work, he began doing unpaid work on the farm not long after moving to Sheffield. This began with him feeding out hay to the cattle on mornings when the defendant had to start work early. He subsequently undertook many other sorts of work on the farm. He began routinely preparing meals for Miss Davies in his caravan in Sheffield, and delivering them to her.

8 The Davies farmhouse was apparently very old. According to one of the exhibits tendered at the trial, it is a weatherboard building that was constructed in the 19th century. For many years the defendant had his eye on a site on the Davies property which he considered would be an ideal place for a house. There were spectacular views of Mount Roland from that site. It became his ambition, and the plaintiff's, to build a house there. In 1993, as a result of discussions with the plaintiff, he approached Miss Davies, and offered to buy that site. She was not willing to have any money change hands. She went to see her solicitors, and arranged for her property to be subdivided and the area of about 4.2 hectares to be transferred to the defendant by way of gift. That is the property that I have referred to as "the house property". The transfer was registered in 1993.

9 The defendant purchased a second hand building comprising five single men's quarters, and had it transported to the house property. The parties renovated it for use as a temporary home at that site. According to the defendant's evidence, he paid about $6,000 for the building, about $2,000 for the installation of a kitchen in it, and between $600 and $1,000 for other associated expenses. The parties did much of the renovation work themselves. Having been lovers for over eight years, they commenced cohabitation in that building.

10 The parties then proceeded to construct a permanent residence on the house property. They built a tasteful modern three-bedroom brick veneer house. The defendant had collected the necessary timber for its construction some years previously. His father operated a sawmill. Some trees had been felled on the Davies property in 1990 to enable a dam to be built. Those logs, and other suitable timber from another part of the property, were taken to the defendant's father's sawmill, milled, and brought back to the property, where they were racked, stored and dried in a disused barn. The physical work relating to the timber was undertaken by both of the parties, and by relatives of the defendant. In 1995 the parties jointly obtained a loan of $110,000 from a bank in order to finance the construction of the house. It was commenced in late 1995 and completed in or about May 1996.

11 Miss Davies died on 12 April 1996. As a result, the defendant became the registered proprietor of the farm property. He is still its registered proprietor.

12 The defendant was the primary breadwinner throughout the years of the parties' relationship. He was employed as a nurse at all times. In 1990, as a result of the privatisation of a government hospital where he had been working, he received a redundancy payment of about $90,000. He spent that money on a new vehicle, some very expensive horses, and things for the farm, including the second hand building. He worked as a nurse in Saudi Arabia from late 1997 until November 1998, and again from mid-2000 until January or February 2001. He made a trip home for about three weeks during the first period in Saudi Arabia, in May or June of 1998. He maintained a separate bank account, but the plaintiff had access to that account while the defendant was in Saudi Arabia. The defendant made the payments in respect of the $110,000 loan. He has continued to make those payments after the separation of the parties.

13 Over the years in question, the plaintiff's primary source of income has been social security or Centrelink benefits. He worked full time for about two years as the assistant manager of a motor inn in East Devonport. The defendant gave evidence to the effect that the plaintiff had that job in 1988, but the plaintiff said he did not start it until about 1990. The dates are not significant. The position was held while the plaintiff was living in the caravan at Sheffield. There is evidence that he also did a little work at a hotel in Burnie, a little work for a football club in Devonport, and occasional work as a photographer attending weddings. From about 1994 to March 1996 he worked for about 20 hours per week in a business in Sheffield. In March 1996 it was found that he had cancer. He had to give up his employment. He underwent ten months of chemotherapy. Subsequently he resumed part time work, working for a local newspaper in Sheffield, earning about $100 to $140 per month. He did not have any other paid work during the years in question. There is some vague evidence that he had some significant Tattslotto wins.

14 Neither of the parties accumulated any savings. They each contributed financially, according to their means, to the erection and fitting out of the house, to household expenditure, and to the farming enterprise.

15 Whilst the defendant was the primary breadwinner, the plaintiff was the primary homemaker, and undertook the greater proportion of the farm work. This was a consequence of him not being in full time employment, except during the two years at the motor inn, while the defendant was always in employment, usually full time. I am satisfied that the plaintiff did more of the farm work than the defendant from about 1986 onwards. In their evidence, I think each of the parties understated the extent to which the other had worked on the properties. The plaintiff called two neighbours who corroborated, to a degree, his evidence as to how hard he worked over the years. I am satisfied that each of the parties contributed significantly, according to his availability and skills, to the conservation and improvement of the properties, and to the furtherance of the farming enterprise. I think I need not catalogue the various types of work that each party did. However I specifically note that the plaintiff worked on the renovation of the second hand building, dealt with builders during the construction of the house, initiated arrangements for the application of fertiliser to the farm, and was responsible through his work in relation to the pastures for a significant increase in its stock-carrying capacity.

16 In early 2001, shortly after the defendant's return from his second period in Saudi Arabia the plaintiff moved out of their bedroom, and began sleeping in another room. Their sexual relationship came to an end. The defendant found another partner. However the plaintiff continued to live under the same roof until some time in 2003, and continued to work on the properties as he had been doing. He said he left in February 2003, but the defendant said that the departure was in mid-2003. I need not make a finding as to precisely when the plaintiff left the house.

17 When he vacated the house, the plaintiff took with him some photographs and personal effects, a bed, and a market umbrella which had cost $500 when new. He had no other assets. The defendant's assets, by contrast, were as follows:

(a) He owned the farm property. It was valued in June 2004 at $255,000.

(b) He owned the house property. It was valued in June 2004 at $265,000. It is subject to a mortgage relating to the loan for the construction of the house. The principal sum outstanding in respect of that loan was $93,271 as at 27 December 2001; $77,570 as at 17 February 2004; and $74,917 as at 25 June 2004. I do not have evidence of the outstanding balance at the time of separation, nor at the time of the trial, but these figures give a sufficient indication of the magnitude of the equity in the house property.

(c) He had the contents of the house. They were valued in June 2004 at $3,240.

(d) He had the cattle on the farm. The best evidence I have as to their number and value comes from his 2002 income tax return. According to it, on 30 June 2002 he had 81 cattle, and they were worth a total of $8,434.

(e) He had the horses on the property. Again, the best evidence I have as to their number and value is in his 2002 tax return. According to it, he had 14 horses, worth a total of $22,200, as at 30 June 2002.

(f) He had the farming plant and equipment. The parties are agreed that it was and is worth $25,000.

(g) He had a bank account, but the evidence suggests that there was very little money in it.

18 Mr Tree SC submitted for the plaintiff that his client was entitled to an interest in the relevant assets pursuant to the doctrine of constructive trusts. He submitted that this case is indistinguishable from Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137. He relied on the following passage in the principal judgment in that case, that of Mason CJ, Wilson and Deane JJ, at 148 - 150 as indicating the approach that should be taken in relation to the plaintiff's claim:

"In the present case the parties pooled their earnings with a view to meeting all the expenses and outgoings arising from their living together as a family. The individual contributions of each party were not allocated to a particular category or particular categories of expenses and outgoings. The pool of earnings was used to pay outgoings associated with accommodation - mortgage instalments on the unit at Cabramatta and the property at Leumeah - as well as other living expenses. There was no suggestion that the respondent's contributions were paid and received by way of rent or a charge for use and occupation and for living expenses. Such a suggestion would be inconsistent with the relationship that came into existence between the appellant and the respondent, a family relationship which was for the most part until 1982 a long-term stable relationship in which marriage was under continuous contemplation. The land at Leumeah was acquired and the house on it was built in the context and for the purposes of that relationship. Together they planned the building of the house. Together they inspected it in the course of its construction. Together they moved out into it and made it their home after it was built.

In this situation it is proper to regard the arrangement for the pooling of earnings as one which was designed to ensure that their earnings would be expended for the purposes of their joint relationship and for their mutual security and benefit. To the extent which the pooled funds were the source of payment of mortgage instalments by the appellant, the pooled funds contributed not only to present accommodation expenses but also to the security of the parties' accommodation in the future. In this context it would be unreal and artificial to say that the respondent intended to make a gift to the appellant of so much of her earnings as were applied in payment or mortgage instalments. There is no evidence which would sustain a finding that the respondent intended to make a gift to the appellant in this way.

The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant's assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.

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

19 Mr Tree SC submitted that, on the facts of this case, there was no disparity of contributions that could justify an adjustment whereby the plaintiff would receive less than a half interest in any of the relevant assets. He submitted that, in the event that I concluded that his client was entitled to something less than half of all the relevant assets, this might be an appropriate case to satisfy the demands of equity and justice by means of a trust limited to the two pieces of real estate. He pointed out that Powell J had taken a somewhat similar approach in Lipman v Lipman (1989) DFC 95-068 at 75,807. However it would be contrary to principle for me to increase the plaintiff's share in a piece of real estate beyond the share warranted by his contributions so as to compensate him more conveniently for his contributions in relation to household contents, farm animals, and so forth. The proper approach, reflected in Lipman, is to determine what interest, if any, the plaintiff should receive in the real estate and then to determine whether the demands of equity and justice require the granting of relief in respect of the minor assets.

20 For the defendant, Ms Gibson submitted that the parties did not cohabit or pool resources until the renovation of the single men's quarters in 1993. She emphasised that the two pieces of real estate were received by way of gifts to her client, substantially as a result of his relationship with Miss Davies and all that he did for her over many years. She submitted that the plaintiff had received adequate recompense for the work that he did on the properties while he was living there, in that he was provided with a beautiful home, food, power, holidays, a horse for his daughter, riding lessons for his daughter paid for by the defendant, and accommodation for his children when they came to stay. However, there was no suggestion in the evidence that the plaintiff's contributions, non-financial or financial, were given and received in return for the use of the property and/or living or other expenses. And there is nothing in Baumgartner or any of the relevant authorities to suggest that contributions made in respect of the acquisition, maintenance or improvement of a property prior to the commencement of cohabitation should be disregarded.

21 The parties maintained a joint bank account from November 1997 onwards, but the defendant continued to maintain an account of his own. I do not think it can be said that these parties pooled their earnings in the same way, or to the same extent, as the parties did in Baumgartner. However the pooling of moneys into a joint account or common fund is not a prerequisite to the imposition of a constructive trust. In Hibberson v George (1989) 12 Fam LR 725, a decision of the New South Wales Court of Appeal, the parties had not pooled their earnings or in any way established a common or jointly held fund, but had kept their own finances independently of each other. McHugh JA (as he then was), with whom Hope JA agreed, said at 742:

"... as Mr Jackson QC for the respondent conceded, pooling of resources is not 'an absolute requirement in every case'. Indeed it is not necessary that there should be a physical pooling. It is probably enough that by mutual arrangement the parties have each spent moneys for the purpose of their joint relationship knowing that part of it was to be spent in financing the purchase of the home."

22 In Miller v Sutherland (1990) 14 Fam LR 416, Cohen J held that a female plaintiff was entitled to a one quarter interest in a house when there had been no pooling of funds, but a pooling of labour in renovating the property and a contribution of money for materials by her former partner.

23 In Parij v Parij [1997] SASC 6771; (1998) 72 SASR 153, the Full Court of the Supreme Court of South Australia held that the appellant was entitled to a share in certain properties on the basis of a constructive trust, despite the parties not having pooled their resources in any formal sense. At 165, Debelle J, with whose approach the other members of the court agreed, said, "A pooling of resources is not an absolute requirement in every case".

24 In Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360 at 364, Murray J, with whose reasons Hasluck J agreed, summarised the law in relation to pooling as follows:

"Therefore it seems to me that there is no doubt that the remedy of a constructive trust may be employed in various circumstances establishing unconscionability. In a case such as this where a joint relationship or endeavour of a particular kind is relied upon, if there is found to have been a 'pooling' of resources, at least in the sense of a mutual commitment of resources, both financial and otherwise, directed towards the acquisition of or otherwise related to an asset, the Court will be more inclined to hold it to be unconscionable for one party to retain the entirety of the legal and beneficial ownership of that asset. The pooling of resources of which the courts have spoken has not been confined to financial resources. The courts do not draw artificial distinctions between the situation of a plaintiff who makes a direct financial contribution to an asset, one who makes a financial contribution which enables his or her partner to expend more of that person's money upon the asset, or one who contributes time and effort directed towards an asset rather than simply towards the maintenance of the relationship itself."

25 I think it is quite clear in this case that there was a mutual commitment of resources, comprising both financial resources and labour resources, directed towards the improvement and maintenance of both the house property and the farm property. There was also a mutual commitment of labour resources directed towards the acquisition of the land during Miss Davies' lifetime, in that both parties worked upon the land with the expectation that she would leave it to the defendant in her will, and that their life together thereafter would involve living on the property together and farming it together.

26 The plaintiff's contributions in respect of the properties were substantially non-financial. However an interest in a property can be acquired by means of a constructive trust even by a party who has made no financial contributions relating to that property. In Bennett v Tairua (1992) 15 Fam LR 317, the successful respondent's contribution was described by Rowland J at 323 as "limited to the maintenance and continuance of the property and the family living within the property", as well as assistance in relation to arranging a subdivision. The Full Court of the Supreme Court of Western Australia held that she was entitled to a 30 per cent interest in the property on the basis of a constructive trust. Miller v Sutherland (supra) and Parij v Parij (supra) were also cases in which parties who had made no financial contributions were held to have interests in properties pursuant to constructive trusts. However Lloyd v Tedesco (supra) illustrates the proposition that a constructive trust will not arise in the context of a marriage-like relationship unless the parties have intentionally or deliberately entered into a joint endeavour which had, as a material purpose, the aim of adding to their material wealth for their mutual benefit. Clearly this was such a case.

27 In determining what weight should be given to the plaintiff's participation in the borrowing of the $110,000 used for the construction of the house, I think I should be guided by the High Court's decision in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242. That case concerned a resulting trust, and moneys jointly borrowed for the purpose of purchasing a property, whereas this case concerns constructive trusts, and moneys jointly borrowed for the purpose of improving a property. It would be inconsistent with Calverley v Green to take any course other than treating the parties as having contributed the borrowed money equally to the cost of improving the farm property by building the house.

28 In the light of the authorities that I have referred to, and having regard to the plaintiff's financial and non-financial contributions in respect of the two pieces of real estate, it would clearly be unconscionable for him to be denied an interest in either of those properties.

29 There was evidence at the trial to the effect that the plaintiff had a bad back condition; that this had been contributed to materially by years of work on an unsatisfactory tractor on the farm; and that his earning capacity was impaired as a result. Mr Tree SC called an orthopaedic surgeon as a witness, tendered a report from a consultant physician, and submitted that the plaintiff's back condition should be taken into account in determining his constructive trust claim. He did not support his argument by reference to any case law. I reject his submission. All of the authorities that I have referred to make it quite clear that, in this sort of case, the basis for equity granting relief by means of constructive trusts and quantifying the beneficial interests held pursuant to constructive trusts, relates to the contributions, financial and non-financial, made by parties in respect of particular properties. Other factors such as needs, means, and earning capacity are not relevant to the question whether it would be unconscionable to deny a plaintiff an interest in a property, nor in determining the quantum of a plaintiff's interest.

30 In accordance with the High Court's decision in Baumgartner, it is necessary to quantify the plaintiff's interest in each of the two pieces of real estate by beginning with the proposition that equity favours equality, and by considering whether, in relation to each property, there was a disparity between the worth of the parties' individual contributions, financial and non-financial, to such an extent that an adjustment is appropriate in order to avoid injustice. I think that the acquisition of both properties is attributable predominantly to the contributions made by the defendant to the Davies household and to the continuance of the farming enterprise from the time he went to live with the Davies family in 1971 until the transfer of the house property and the death of Miss Davies. Because of that factor, I think the plaintiff must receive less than a half share in each property.

31 In my view the plaintiff made greater contributions in respect of the house property than he did in respect of the farm property, and there should therefore be a greater adjustment in the defendant's favour in relation to the farm property. I think the plaintiff and the defendant should receive equal credit for the improvements made to the house property, first by the installation and renovation of the second hand building, and later by the erection of the house. Some indication of the difference that those improvements made to the value of that property is given by the Government valuations of that property as at 30 May 1995 and 13 January 1997. On the former date, after the erection of the second hand building, the land valuation was $36,000 and the capital valuation, reflecting fencing and any other improvements as well as the second hand building, was $45,000. On the latter date, the land valuation was $36,000, but the capital valuation, following the erection of the house, was $135,000. This tends to indicate that, after the completion of the house, over 70 per cent of the value of the property was attributable to the improvements for which the parties were jointly responsible. Having regard to the plaintiff's other contributions in relation to that property, I think he should be entitled to a 45 per cent interest in it.

32 There was evidence that the plaintiff's labour, and arrangements that he made in relation to fertiliser, were responsible for an increase in the carrying capacity of the farm property. I infer that its value was therefore increased. However I have absolutely no evidence as to how great an increase in value there was. Government valuation figures suggest that the property increased in value between 1993 and 1995, but I cannot tell to what extent any increase was attributable to inflation, improvement or any other factor. Doing the best I can on the basis of the evidence as to the extent of each party's contributions, I think the plaintiff should receive a 20 per cent interest in that property.

33 Under the Partition Act 1869, s5(1), I have the power to order the sale of the two properties, rather than their physical partition, if I think fit. I think physical partition would be inconvenient, particularly in relation to the house. No submission was made on behalf of the defendant that any course other than sale would be appropriate. I will therefore order a sale. It must of course be borne in mind that, the loan moneys having been borrowed by the parties in a situation of equality, each of them will have to bear half of the outstanding loan debt, despite having unequal shares in the properties. Neither party has made any application for any adjustment in respect of an occupation rent or payments made since their separation.

34 There is little evidence as to the contents of the house. I do not know what they consist of. I do not know how or when the parties acquired them. I infer that their tastes were somewhat different from those of the Davies family, and that the bulk of the household contents must have been acquired by them during the years that their relationship subsisted with the continuation and furtherance of their relationship in mind. On that basis, I must consider the principles discussed by the High Court in Baumgartner. I do not think the fact that the plaintiff left the household with a bed and a market umbrella would be sufficient to displace the proposition that equality is equity. If a constructive trust is imposed, I could order the sale of all the household contents acquired before the parties' separation pursuant to the Conveyancing and Law of Property Act 1884, s84L(2)(a), or make an order that will allow the plaintiff to collect chattels whose value equals half of the total pursuant to s84L(2)(b). Family lawyers sometimes adopt the "pick-a-pile" method to resolve such questions. Neither counsel submitted that I could or should order the payment of equitable compensation. I think it would be unconscionable to deny the plaintiff an interest in the household contents; that there is no reason why he should not receive a half interest in them; and that the only appropriate remedy is an order for their sale and the equal division of the proceeds. The order will have to be confined to the chattels that were in the house at the time of the parties' separation.

35 The defendant inherited Miss Davies' cattle along with the farm. There was also evidence of him having some cattle of his own. There was evidence that the herd increased in size by about one third during the years that the plaintiff was associated with the farm. He plainly made a contribution by his labour to the enlargement of the herd and the conservation of the herd. However, having regard to the fact that the herd was worth only about $8,400 at the time of separation, and having regard to the fact that the defendant made much greater contributions in respect of the herd than the plaintiff, just as he did in relation to the farm property, I am not persuaded that it would be unconscionable to deny the plaintiff an interest in the cattle.

36 There was evidence that the defendant had about three horses when the parties' relationship commenced, and about 16 horses when it ended. This is consistent with the tax return that showed him owning 14 horses, worth a total of $22,200, in June 2002. However there was evidence that the increase in the size and value of the herd was attributable in large measure to expenditure from the defendant's 1990 redundancy payment. Much of that payment may well have been attributable to his employment prior to his association with the plaintiff. The evidence suggested that he took a much more active role in relation to the horses than he did in relation to many other farming activities during the years the parties were together. Having regard to those circumstances, I am not satisfied that it would be unconscionable to deny the plaintiff an interest in the horses.

37 The evidence as to the farming plant and equipment is scanty, and is mainly to be found in the defendant's income tax depreciation schedules. As I have said, it is common ground that the plant and equipment is worth $25,000. The most valuable item appears to be a tractor that was purchased second hand for $18,570 on 27 April 2002. The defendant gave evidence that he borrowed $15,000 to pay for that tractor. By the time of its purchase, the parties' relationship had broken down, though the plaintiff was still living in the house. The defendant has been paying off the $15,000 loan, and still owes the lender $3,000. It appears from the defendant's 2002 depreciation schedule that he also purchased a ride-on lawnmower for $1,900 in February 2002, also apparently after the relationship had broken down. I am not satisfied that any more than $5,000 worth of farming plant and equipment remains from when the parties had in mind the continuation and furtherance of their relationship. The defendant's depreciation schedules give some indication of the nature, purchase price, and dates of acquisition of certain items. I do not know which of those items remained in the parties' possession at the time of separation, nor which of them the defendant still has, nor whether any of the items in dispute were inherited from Miss Davies, nor what proportion of the agreed figure of $25,000 (if any) is attributable to items inherited from Miss Davies. In the circumstances, I am not satisfied that it would be unconscionable to deny the plaintiff an interest in the farming plant and equipment.

38 The plaintiff has not established that any significant sum was held in bank accounts at any relevant time. I am not satisfied that it would be unconscionable to deny him an interest in the funds in any bank account.

1 A declaration that the defendant holds a 45 per cent share in the property known as RA520 West Kentish Road, West Kentish, as comprised in certificate of title volume 104496 folio 1 in trust for the plaintiff.

2 An order that that property be sold; that 45 per cent of the proceeds of sale, less 50 per cent of the parties' mortgage debt to National Australia Bank Ltd, be paid to the plaintiff; and that 55 per cent of the proceeds of sale, less 50 per cent of the said mortgage debt, be paid to the defendant.

3 A declaration that the defendant holds a 20 per cent share in the property known as RA499 West Kentish Road, West Kentish, as comprised in certificate of title volume 105744 folio 1, upon trust for the plaintiff.

4 An order that that property be sold; that 20 per cent of the net proceeds of sale be paid to the plaintiff; and that 80 per cent thereof be paid to the defendant.

5 A declaration that the defendant holds a 50 per cent share of the household contents at RA520 West Kentish Road, West Kentish, excluding any household contents that were not at that address when the plaintiff ceased to reside there, in trust for the plaintiff.

6 An order that the household contents so held in trust be sold and the proceeds of sale divided equally between the parties.

7 An order that both parties have liberty to apply as to the implementation of the above orders.