We need a fair agreement to be made between Mark and Gayle. Allowing for Mark to own ¾ of house and payments. It should reference bills at ½ shares. It needs to provide for a method of selling the house at a letter [sic] time in a fair manner, allowing the other person first offer, allowing a reasonable time for getting money/loan together...

1. According to Gayle, there was no meeting in the lounge room of the Bayswater home Property. She gave evidence that she actually sourced the Property and negotiated its purchase. In her witness statement, she states that:

We both signed the contract of sale for the Burston Street Property as joint purchasers. Annexure "B" is a true copy of the contract of sale.

1. The copy of the contract of sale annexed to Gayle's witness statement, does not, however, indicate that she signed the document. In fact, the document only names Mark and/or nominee as the purchaser. The document has only been signed by Mark. There is no mention of Gayle on that document.
2. According to Mark, he paid $28,000 of the 10% deposit of $30,000 and Gayle paid $2,000. He said that she paid $2,000 into his bank account from which he then drew $30,000 to pay for the deposit. By contrast, Gayle said that she paid half of the deposit.
3. A further point of difference between the parties concerns the signing of the Transfer of Land. The Transfer of Land prepared by solicitors engaged by Mark was initially prepared on the basis of Gayle owning a one quarter share of the Property as a tenant in common. According to Mark, Gayle refused to sign the Transfer of Land on the ground that it only reflected her share in the Property as amounting to one quarter. In his witness statement, he states:

I consulted the lawyer handling these affairs at that time - David Wilkinson - with my concerns. The deposit was paid and would be forfeited if I cancelled the deal at that stage. I was caught with having paid $30,000 ($2,000 of which was contributed by the Respondent) and a commitment to purchase in my name ...

David Wilkinson advised me that although I was unable to obtain a signature from the Respondent reflecting the discussion we had concerning ownership, that in any event if a dispute was to occur at any stage in the future concerning ownership of the Property, the respective ownership entitlement to the Property would be based on the respective contributions to the Property by each party. This gave me some comfort and I continued with the purchase of the Property and registered the title of the Property and the mortgage for the Property in joint names.[1]

1. Gayle disputes the account given by Mark. She states in her witness statement:

When this transfer of land was produced to me by my brother and I told him that that was not the arrangement that had been agreed between us and that I was not prepared to purchase the property with him on that basis...

I was both surprised and disappointed at receiving this transfer of land as it had never formed part of our discussions prior to me setting about finding a property for us both. To the contrary although discussions had been on the basis of equal ownership and as joint proprietors...[2]

1. Ultimately, the parties' respective interests in the Property were registered as each being joint proprietors.
2. Finally, one further issue was raised by the parties, which although not directly relevant to the questions before me, may affect the form of final orders made in this proceeding. During the first half of 2009, the parties discussed the possibility of purchasing another property for rental investment. Gayle identified a property located on Phillip Island ('the Phillip Island Property') and asked whether Mark was interested in purchasing the property jointly with her. As matters turned out, Mark did not invest in that property. Consequently, Gayle indicated that she would acquire the Phillip Island Property on her own using the Property as security for a loan to finance that transaction. Obviously, any further encumbrance upon the Property required the consent of Mark.
3. On 1 June 2009, Mark executed a mortgage in favour of Westpac Banking Corporation in order to allow Gayle to secure a loan to purchase the Phillip Island Property. In addition, he executed a personal guarantee in the amount of $70,134 in favour of the Westpac Banking Corporation, should Gayle default on that Westpac loan.
4. The relief sought by Mark in this proceeding includes an order that Gayle cause Westpac Banking Corporation to release Mark from his obligations under the personal guarantee and a further order, the effect of which, would be to discharge the mortgage over the Property, in so far as it relates to secure the loan for the Phillip Island Property. Given that the parties have limited the scope of this proceeding, it is unnecessary for me to deal with this aspect of the relief sought at this stage in the proceeding.

1. As indicated above, the scope of this preliminary proceeding is limited to determine whether there should be any adjustment to the parties' respective interests in the Property or whether there should be an order for contribution. Mark argues that his interest in the Property should be adjusted such that his interest is 92.4% and Gayle's interest is 7.6%. On the other hand, Gayle argues that the parties' respective interests should be equal.
2. The basis upon which Mark argues that his interest in the Property should be adjusted to 92.4% is premised on what he contends is his contribution to the total cost of purchasing and maintaining the Property. In summary, he gave evidence that each of the parties' contributions up until February 2013 are:[3]

1. Mr Hay submitted that the Tribunal may make orders without having regard to the general law provided that the basis of any division is determined in a manner that best accords with the legitimate rights and interests of the parties. He argued that the express words of s 230(a) of the Act do not constrain the Tribunal by the general law.
2. He submitted that the Tribunal's power to make adjustments to a party's interest in land is made clear by s 233(1) of the Act which empowers the Tribunal to order that compensation or reimbursement be paid or made by one co-owner to another co-owner, having regard to the matters set out in s 233(2) of the Act. Section 233(2) makes reference to the payment by a co-owner of more than that co-owner's proportionate share of rates, mortgage repayments, purchase money, instalments or other outgoings in respect of that land...for which all the co-owner's are liable.
3. Although, the Act does not expressly state that the Tribunal's discretion is to be applied in accordance with the general law, I am of the opinion that to simply determine the issues based on what the Tribunal may, from time to time, consider to be just and fair without having regard to the general law is not an outcome that I consider to be just and fair. The public expect decisions of the Tribunal to be consistent, in terms of applying the law to the facts as found. To disregard the general law may lead to inconsistency in the decisions of the Tribunal which may be difficult to justify on any legal basis.
4. I am reinforced in holding this view by the comments of Kaye J in Edelsten v Burkinshaw & Ors,[4] where his Honour discussed the discretion of the court under s 229 of the Act:

However, clearly, it would be inferred from s 229 that the land should be divided on a basis which is "just and fair". The use of such a phrase in the legislation is not a licence to the court to resort to some form of instinctive justice. Rather, clearly, the basis of the division of the land must be determined in a manner which best accords with the legitimate rights and interests of each of the parties.

1. In my view, this proposition is entirely consistent with the legal assumption that legislation is presumed not to invade common law rights unless it can clearly be shown that the legislature intended to do so. In Potter v Minahan, O'Conner J stated:

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.[5]

1. In Minister for Lands and Forests v McPherson, the NSW Court of Appeal held that the presumption was applicable to principles of equity.[6]
2. The use of the word just prefacing the word fair reinforces my opinion that the section does not give the Tribunal an unqualified discretion to partition land, simply on the basis of what the Tribunal considers is fair. As highlighted by Kaye J in the extract of Edelsten above, the basis of the division of the land must be determined in a manner which best accords with the legitimate rights and interests of each of the parties.
3. In forming that view, I am mindful that Mr Hay relies on s 233(1)(a) of the Act in support of his alternative argument that Gayle should make contribution to Mark commensurate with the parties' respective contributions to the purchase price and outgoings of the Property. That subsection is not prefaced with the words just and fair. It gives the Tribunal power to order that compensation or reimbursement be made by one co-owner to another co-owner and in so doing the Tribunal must take into account the payment by a co-owner of more than that co-owner's proportionate share of rates, mortgage repayments, purchase money, instalments and other outgoings in respect of the land.
4. In my opinion, this section needs to be read in context with other sections of Part IV of the Act, such that the power should be exercised judicially, notwithstanding the requirement to take into account the matters referred to in s 233(2). Indeed, the matters referred to in s 233(2) largely reflect what the courts take into consideration when considering whether there should be equitable contribution by one co-owner to another co-owner.
5. Consequently, I approach the task at hand having regard to and being informed of the general law, rather than simply imposing some form of instinctive justice.
6. In passing, I also note that Mr Hay did not submit that s 233(c) was enlivened in this proceeding. In other words, it is not contended that there should be an adjustment of the parties' beneficial interests to take into account amounts payable by co-owners to each other, nor was there any evidence relied upon by Mr Hay to argue that any amount was payable by Gayle to Mark, which would require consideration of that subsection.[7] As I understand the submissions made by Mr Hay, his reference to s 233(2) was linked to the alternative claim for contribution. By contrast, Mr Hay relied upon s 228(a) as empowering the Tribunal to order an adjustment of the parties' interests in the Property. As indicated above, that requires the Tribunal to make an order for division only if it considers it just and fair to do so.
7. Mr Hay submitted that if regard is had to the general law, Mark's position is that it would be just and fair:
   • (a) that the Tribunal impose a constructive trust reflecting the unequal contributions made by Mark which have conferred a benefit on Gayle; or alternatively
   • (b) Mark is entitled to contribution from Gayle and further entitled to an equitable charge over the Property to secure the making of the contribution.
8. Mr Hay referred me to Baumgartner v Baumgartner, where the joint judgment of Mason CJ, Wilson and Deane JJ stated:[8]

[In Muschinski v Dodds] This Court declared that the parties held their respective legal interests upon trust to repay to each his or her respective contribution and add to the residue of them both in equal shares.

Deane J. (with whom Mason J. agreed) reached this result by applying the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which failed when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. His Honour said (17):

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

His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention "to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle" ...[9]

1. Mr Hay submitted that the parties purchased the Property as a joint venture or joint endeavour. He argued this was evident from the fact that the parties:
   • (a) contributed jointly to the purchase of the Property;
   • (b) agreed to each pay a proportion of the Home Loan repayment; and
   • (c) agreed to equally pay half the outgoings and costs associated with the Property.
2. Mr Hay submitted, correctly in my view, that apart from the deposit, the parties contributed equally to the purchase price because they were both liable to the mortgagee to repay the Home Loan. In that respect I accept that repayments of the Home Loan are not counted as contributions to the purchase price and do not affect the beneficial interest of the parties arising from their individual contribution to the purchase price. That proposition is made clear by the High Court in Calverley v Green.[10] In Murtagh v Murtagh, Hallen J summarised the principle as follows:

The general rule in relation to subsequent contributions to the repayment of a mortgage loan is that these will not alter the extent of the proportionate beneficial interests determined by contributions to the purchase or acquisition cost.[11]

1. Mr Hay submitted that the joint endeavour entered into by the parties entailed purchasing the Property, which would then provide a residence for both of them to live. However, that joint endeavour failed because the parties were not on amicable terms and the prospect of them co-habiting was no longer feasible.
2. He argued that the evidence demonstrated that Mark paid almost all of the Home Loan and outgoings himself. He submitted that this conferred a benefit on Gayle and it would be unconscionable to permit Gayle to retain that benefit. Therefore, the Tribunal should impose a constructive trust in favour of Mark commensurate with his contribution to the payment of the purchase price, Home Loan repayments and other outgoings associated with the Property.
3. Alternatively, Mr Hay submitted that where a party makes mortgage payments and does not intend the other party to have the benefit of those payments the paying party is entitled to contribution from the other party and an equitable charge to secure the making of the contribution.

1. Mr Schlicht argued that the critical question for the Tribunal to answer was what the intention of the parties was at the time when the Property was purchased.
2. Mr Schlicht conceded that a resulting trust may arise where persons have contributed to the purchase of a property in unequal proportions in circumstances where there is no relationship that gives rise to the presumption of advancement. Mr Schlicht further conceded that a constructive trust might be imposed where a joint venture has failed and it would be unconscionable for one party to continue to hold his or her share in the property where the other party has paid a greater share of the cost and maintenance of the property. However, Mr Schlicht submitted that the common intention of the parties at the time of purchase was that each would hold the Property in equal shares and that this common intention rebutted any notion of a resulting trust or constructive trust having arisen.
3. In particular, he pointed to two evidential matters to support that contention. First, he pointed to Gayle's evidence that she refused to sign the Transfer of Land which described her interest as being one quarter; and the fact that a new Transfer of Land was drawn setting out her interest as a joint tenant. Moreover, Mr Schlicht submitted that Mark's evidence that he had the financial capacity to complete the purchase the Property by himself but chose not to do so after Gayle refused to sign the first Transfer of Land, led to the conclusion that the parties intended to purchase the Property equally.
4. Second, Mr Schlicht submitted that an agreement was reached between the parties during November 2012, whereby Mark was said to have accepted a payment commensurate with a 50% interest of the net equity in the Property in consideration that he transfer his interest to Gayle. Mr Schlicht contended that this agreement reinforced the notion that the parties had always intended to hold the Property in equal shares.

1. As is the case with all enquiries concerning the ownership of property, the starting point is that beneficial ownership of real property is commensurate with legal title. In this case, the parties hold the Property as joint tenants. Mr Hay submits that joint tenants are jointly seized of the whole estate they take in land and no one of them has a distinct and separate title, interest or possession. Therefore, if neither party holds a greater legal title than the other, prima facie beneficial ownership should be divided equally.[12] However, Mr Hay contends that it would not be just and fair to divide the Property in equal shares, if one has regard to each party's relative contribution to the purchase price, repayment of the mortgage loan and payment of other expenses associated with the Property.
2. By contrast, Mr Schlicht contends that the critical question for the Tribunal is what the parties actually intended to be each other's equity in the Property at the time of purchase. As highlighted above, he submits that the evidence demonstrates that each party intended to hold an equal share in the Property.
3. I do not accept that the agreement between the parties prior to the purchase of the Property is necessarily critical in determining whether relief in the form of the imposition of a constructive trust is to be granted. This is because the remedial remedy of a constructive trust, in the sense described in Muschinski v Dodds, rests on the notion that it would be unconscionable for a co-owner to retain an equal interest in property in circumstances where the co-owner's contribution to a failed joint endeavour was unequal.[13] In Muschinski v Dodds, Deane J stated:

Like express and implied trusts, the constructive trust developed as a remedial relationship superimposed upon common-law rights by order of the Chancery Court. It differs from those other forms of trust, however, in that it arises regardless of intention ...

Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.[14]

1. Similarly, in Muschinski v Dodds, Mason J, having accepted the finding of the lower courts that the common intention of the parties was that Mr Dodds was to have an equal share of the property, nevertheless expressed the following view:

The general principle underlying the proportionate repayment of capital contributions to joint venturers on the failure of a joint venture is wide enough to support this aspect of the constructive trust.[15]

1. As indicated above, the imposition of a constructive trust, in the sense described in Muschinski v Dodds and Baumgartner v Baumgartner, presupposes that the parties entered into a joint endeavour which ultimately failed. Mr Schlicht submitted that the facts in the present case do not demonstrate that the parties entered into a joint endeavour. He further argued that even if there was a joint endeavour or venture, it cannot be said that it failed. He contended that the only joint venture was for the parties to purchase a property together and that was carried out and completed.
2. By contrast, Mr Hay relied upon Payne v Rowe[16] to establish that the facts in the present case were consistent with there being a joint venture that had failed. In Payne v Rowe, two siblings and their mother purchased a large rural property, upon which there existed a residential dwelling. Prior to purchasing the property, the parties had intended that each of the siblings would, in time, construct their own separate residences on the property, with the result that all three parties would occupy their own separate residence. However, the relationship between the parties broke down, with the result that work on only one of the siblings' residences was partially constructed with little prospect of the joint endeavour or venture ever maturing. The court held that the parties had plainly bought the property as a joint endeavour which would enable them to live on and enjoy the property for an indefinite period of time.[17] Consequently:

Each of them made contributions to the joint endeavour where it would be unconscionable to permit one or more of them to retain the benefit of contributions made by the others following the breakdown of the relationship between them. The result is that it is appropriate for the court to impose constructive trust.[18]

1. The facts in Payne v Rowe are different to what is before the Tribunal in the present case. I do not accept that the purchase of the Property can be categorised in the same way as the purchase of the land in Payne v Rowe. There is little or no evidence to support a finding that it was the intention of the parties to purchase the Property for the purpose of living together for an indefinite period of time. Indeed, the evidence demonstrates that there were periods of time where the parties did not cohabit the Property. In my view, the evidence points to a finding that the parties intended to purchase a property as an investment, albeit that each of them lived in the property from time to time, including periods where they cohabited.
2. Similarly, the facts in Muschinski v Dodds differ from the present case. In Muschinski v Dodds a man and woman who had lived together for three years decided to buy a property with a view to building a residential dwelling on the property in which they were to live. The property was conveyed to them as tenants in common. Although some improvements were made to the land, the building of the dwelling did not proceed and the parties ultimately separated. At that point, the woman had contributed $25,259.45 and the man $2,549.77 to the purchase and improvement of the property. The court declared that the parties held their respective legal interest upon trust to repay to each his or her respective contribution and as to the residue for them both in equal shares.
3. In the present case, there was no proposal to construct substantial capital improvements on the Property, as was the case in Payne v Rowe, Muschinski v Dodds and also Baumgartner v Baumgartner. What was contemplated at the time of purchase was that the Property was to be acquired as an investment, notwithstanding that the parties intended to live in the Property for a period of time prior to that investment being realised. This is highlighted by Mark's evidence which indicates that the acquisition of the Property formed part of his investment portfolio.
4. In that sense, I accept the submission made by Mr Schlicht that the joint venture was carried out and completed. The mere fact that the parties now wish to sell the Property or alternatively, buy each other out, does not lead to the conclusion that the joint venture has failed. Consequently, I do not consider that the present case falls within the principles enunciated in Muschinski v Dodds and Baumgartner v Baumgartner, such that it would be fair and just to impose a constructive trust. As highlighted in the dissenting judgment of Brennan J in Muschinski v Dodds, the fact that it may not be fair that a party holds an interest in real property that is not commensurate with that party's contribution does not, in itself, justify the imposition of a remedial constructive trust:

It would not be sufficient for Mrs Muschinski to show that it is unfair for Mr Dodds to retain the interest once the purpose is no longer pursued; she must show that it is unconscionable for him to retain it. A constructive trust does not arise and cannot be imposed on the ground of mere fairness. It may be fair - I do not say it is - that Mr Dodds should give back what he was given while he was cohabiting with Mrs Muschinski, but no trust can be impressed upon on Mr Dodds' interest in favour of Mrs Muschinski on that ground.

There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of the property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare. ... The flexible remedy of the constructive trust is not so formless as to place proprietary rights in the discretionary disposition of the court acting according to vague notions of what is fair.[19]

1. Therefore, I do not find that the facts in the present case justify the imposition of a constructive trust arising out of a failed endeavour.
2. However, the question whether a constructive trust ought to be imposed is not conclusively answered by reason of this finding. In Jeffrey-Potts v Garel,[20] the plaintiff sought relief in the form of a constructive trust based on two alternative grounds:
   • (a) a constructive trust arising out of a failed endeavour, in the sense described in Muschinski v Dodds and Baumgartner v Baumgartner; and
   • (b) a constructive trust based upon a common intention that the property be owned by both parties.
3. In Jeffrey-Potts v Garel,[21] Forrest J, citing Lloyd's Bank plc v Rosset,[22] explained how such a trust might be imposed (footnotes omitted):

In Lloyd's Bank plc v Rosset, Lord Briggs (with whom Lords Griffith, Ackner, Oliver and Jauncy agreed) said as follows of the evidence needed to establish a constructive trust based on mutual intention:

The first and fundamental question which must always be resolved is whether, independent of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that this property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between their partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or a proprietary estoppel.

1. In the present case, Mark gave evidence of an agreement reached between he and Gayle prior to purchasing the Property, the effect of which was that he was to pay 75% of the Home Loan and Gayle was to pay 25%, with each party then having a beneficial interest in the Property commensurate with those percentages. Gayle denied that any such agreement was discussed.
2. During cross-examination, Gayle was asked about the payment of the Home Loan. She stated that: we agreed to make equal contributions to the property - for everything. It was put to her that Mark had alleged that she did not have the capacity to pay half the Home Loan payments equally. She answered that she had never said that to him. She said that she could afford to pay the Home Loan payment through the sale of refurbished furniture and computers that she built.
3. By contrast, Mark gave evidence that:

(26) Before buying the Property but after viewing the Property for the second time, the respondent and I had a discussion in the lounge room of the Essex Court Property before submitting an offer to purchase the Property. How much the Respondent could afford to pay was discussed and the Respondent advised she could not afford to pay one half of the mortgage costs and did not want to pay one third of the mortgage costs. We eventually agreed that she would pay a quarter of the mortgage costs ... I took notes at this meeting for items concerning a lawyer and these are included in Attachment HI - Notes Lawyer (undated).

(27) The following items in detail, were agreed between myself and the Respondent:

(a) we agreed in principle to purchase a property together and that the purchase would be financed through borrowing from Westpac bank;

(c) the respondent would pay a quarter of mortgage (she said that was all she could afford);

(d) utility bills would be shared equally (power, gas, water, phone);

(29) After I paid the initial deposit for the Property but before settlement of the purchase of the Property had been completed, the Respondent and I visited a lawyer with a brief to draft wills for ourselves and we instructed him to draft a simple agreement for the Respondent to sign stating she would pay (at least) 25% of the mortgage payments for the Property. The Respondent subsequently refused to sign this agreement.

1. I accept that there were discussions between the parties prior to purchasing the Property, which focused on Mark paying 75% of the Home Loan and Gayle paying 25%. This is corroborated by a file note prepared by Mark stating:

We need a fair agreement to be made between Mark and Gayle. Allowing for Mark to own ¾ of the house and payments.

1. However, the question still remains whether those discussions culminated in a concluded agreement and more importantly, if there was agreement that Gayle was to pay 25% of the Home Loan repayments, was that also to reflect her proportionate interest in the Property?
2. It is common ground that the first Transfer of Land, prepared by the conveyancing solicitor engaged by Mark, recorded the parties as holding the Property as tenants in common in shares of 25% and 75% respectively. However, that Transfer of Land was not executed by Gayle. According to Gayle, when this Transfer of Land was presented to her, she had a heated discussion with Mark, wherein she pointed out that this had never been our agreement.[23] Ultimately, Mark agreed to have the Transfer of Land redrawn to show each party's interest as joint tenants.
3. In that respect, I note that Mark gave evidence that he was under pressure to have the Transfer of Land redrawn because settlement of the purchase was drawing close. I accept that the stress of an impending settlement being disrupted could have placed Mark under pressure to have the Transfer of Land re-drawn. However, he conceded during cross-examination that he had the financial ability to complete the purchase by himself. Moreover, the contract was only signed by him and stated that the purchaser was Mark Sherwood and/or nominee. Therefore, Gayle's signature was not required on the Transfer of Land in order to complete the purchase.
4. According to Mark, he was comforted by legal advice he received from the conveyancing lawyer that his beneficial interest would be adjusted commensurately with his contributions.[24] Regrettably, the relevant solicitor was not called to give evidence in order to corroborate his evidence. Nevertheless, that statement indicates that even if he believed that the parties had agreed to purchase the Property on a 25% - 75% basis, his position changed prior to settlement, partly because of the 'comforting' advice he received from his solicitor at the time.
5. The corroborating documents produced by Mark have not been signed by Gayle. They comprise documents that were produced by Mark or on Mark's behalf and in my view, do little to substantiate that the parties had reached final agreement. Indeed, the extract of Mark's witness statement set out above, demonstrates the uncertainty of what Mark contends was a concluded agreement. In particular, according to Mark, he asked his solicitor to draw an agreement stating she would pay (at least) 25% of the mortgage payments for the Property. I understand this to mean that the proposed agreement left it open for Gayle to pay more than 25% of the Home Loan payments, if she so elected. In those circumstances, one is left wondering whether it was intended that payments over 25% of the Home Loan would also translate into a greater beneficial interest in the Property.
6. In my view, Gayle's contradicting evidence, that she agreed to make equal contribution to the Property for everything, coupled with her refusal to sign the original Transfer of Land, is consistent with a finding that the parties simply did not reach any final agreement as to how much of the Home Loan they each were to pay or what proportion of beneficial interest they each were to hold, despite the likelihood that they may have discussed that scenario and despite Mark having possibly formed the opposite view. Although Mark may have believed that there was to be unequal contribution and unequal beneficial ownership, I do not accept that Gayle held the same view. Therefore, I do not find that there was a common intention that Gayle would contribute 25% to the Home Loan and own a 25% share of the Property. Consequently, I do not accept that the alternative basis for the imposition of a constructive trust exists in the present case.

1. Before moving to consider Mark's alternative claim for contribution, it is appropriate to isolate and consider contributions concerning the purchase price as distinct from other contributions, such as payments of the Home Loan and other expenses associated with the Property.
2. Apart from the deposit monies, the purchase price, including incidentals, was paid from the Home Loan. As both parties are equally liable under the Home Loan, their contribution to the balance of the purchase price is equal, even though Mark says that he has paid significantly more of the Home Loan used to finance that purchase. As I have already indicated, repayments of the Home Loan are not to be counted as a party's contribution to the purchase price. In Calverley v Green, Mason and Brennon JJ stated:

It is understandable but erroneous to regard the payment of mortgage instalments as payment of the purchase price of a home. The purchase price is what is paid in order to acquire the property; the mortgage instalments paid to the lender from whom the money to pay some or all of the purchase price is borrowed.[25]

1. The position is different in respect of the deposit monies. The deposit was funded independently of the Home Loan. As indicated above, the parties are at odds as to their respective contribution to that deposit. In particular, Gayle contends that she paid half of the deposit of $30,000.
2. In Gayle's witness statement, she states:
   1. From early 1999 and in addition to my regular job I built and sold computers to friends and work colleagues which provided me with additional income which at the time of the acquisition of Burston Road were paid over to the Respondent [Mr Sherwood] in cash in the sum of $13,800 between March and August 2004. The balance of the deposit of $15,000 ($1200.00) was provided by me to the Respondent [Mr Sherwood] in cash. Whilst I am unable to recall precisely when or in what amounts these monies were paid, they were paid over to my brother and he provided the cheque to the selling agent for the deposit.
3. No documentary evidence was produced to verify the payments said to have been made by Gayle totalling $15,000. Mark denied any such payment. During cross-examination, Gayle was asked where she sourced the deposit monies said to have been paid to Mark. She reiterated that she obtained cash from the sale of computers and refurbished furniture, which she then paid to Mark. She was asked whether there was any evidence verifying such sales. She was unable to provide any documentary evidence or tax returns demonstrating that source of income.
4. In my view, the evidence of Gayle on this point is deficient. Given that the Property was to form part of an investment portfolio, I find it difficult to accept that a payment of $15,000 would not have been recorded in one manner or another. The bank statements produced by Mark during the period March to August 2004 did not disclose cash receipts totalling $15,000.
5. Mark gave evidence that Gayle paid two amounts of $1,000 each into his personal bank account on 14 June 2004 as her contribution to the deposit monies. He further said that he paid an initial deposit of $1,000 to the real estate agent on 2 June 2004 and that the remainder of the deposit, amounting to $29,000, was paid on 16 June 2004. In that respect, I note that a $1,000 cheque was drawn from Mark's MAS Classic Account ('the Classic Account') and presented on 3 June 2004, which is recorded in Statement 67 from the Classic Account. I further note that a cheque number 000239 in the amount of $29,000 was drawn from the Classic Account and was presented on 17 June 2004, it also being recorded in Statement 67 from that account.
6. By contrast, Gayle states in her witness statement that at the time when the Property was acquired, $13,800 was paid over to Mark, which she says occurred between March and August 2004, with the balance of her half share of the deposit also being paid in cash. However, the bank records referred to above indicate that all deposit monies were paid to the real estate agent on 2 and 16 June 2004. Consequently, it is unlikely to be the case that the deposit paid to the real estate agent comprised Gayle's contribution of $15,000.
7. Therefore, I do not accept Gayle's evidence that $13,800 was paid to Mark in respect of the deposit. I accept Mark's evidence that only $2,000 was paid by Gayle.
8. Leaving aside stamp duty and other associated costs relating to the purchase of the Property including repayments of the Home Loan, I find that the parties have paid the following amounts in respect of the purchase of the Property:

Balance of purchase price of $270,000 (based on an equal legal interest and paid through the Home Loan)

1. As to other costs associated with the purchase, such as stamp duty, conveyancing fees and the like, no evidence was adduced as to what those costs were. In Murtagh, Hallen J reviewed a number of authorities concerning this issue and concluded:

... the debate has been resolved. It can now be stated that for the purposes of calculation, contributions to the purchase price, include incidental costs, fees and disbursements involved in the acquisition of the property ... [26]

1. In my view, the fact that incidental costs have not been included in the calculation set out above is of no consequence because those incidental costs were paid from monies drawn down from the Home Loan. As I have already found, both parties are jointly liable to repay the Home Loan.[27] Therefore, the above percentages will not change even if incidental costs are included in the calculation because those incidental costs are deemed to have been equally paid, given the parties' joint liability under the Home Loan.
2. Having regard to my findings set out above, I consider it just and fair that the legal interest in the Property be adjusted to take into account the unequal contributions to the purchase price. In Murtagh, Hallen J considered this issue further and expressed the following:

However, where two persons have contributed the purchase money in unequal shares and property is purchased in both names, there is, in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money (Trustees of the Property of Cummins (a bankrupt) v Cummins [2006] HCA 6; (2006) 227 CLR 278, at [55]).[28]

1. In the present case, the relationship between the parties does not give rise to a presumption of advancement. Moreover, there is no evidence that the parties agreed to pay the purchase price in unequal proportion. Therefore, in my view, a resulting trust arose by reason of the unequal contribution to the purchase price, such that it is fair and just to vary the legal interests of the parties to reflect that they each hold the Property as tenants in common, with Mark holding a 54.33% share and Gayle holding a 45.67% share.
2. Further, I do not consider that the unequal payment of the Home Loan and other expenses associated with the Property leads to a situation where those legal interests are altered further. In Ryan v Ryan, Ward J stated:

The relevant time for a finding of a resulting trust is the time of acquisition of the property or "so immediately after it as to constitute a part of the transaction" (Caverley v Green [1984] HCA 81; (1984) 155 CLR 242) ... White J notes in Shepherd v Doolan [2005] NSWSC 42 at [23] that where a presumption of a resulting trust arises (and is not displaced) that unless there is a later agreement to alter the equitable interest in the property acquired (or the beneficial interest arising under the resulting trust is displaced by an interest arising under a constructive trust), the interest is not changed by later contributions to the conservation or improvement of the property.[29]

1. Mr Hay submits that, in the absence of a constructive trust, Mark is entitled to contribution, secured by an equitable charge over the Property, by reason of him paying the greater share of the purchase price, Home Loan payments and other expenses associated with the Property. As highlighted by Hallen J in Murtagh, an equitable charge is often used in a case where the imposition of a constructive trust would be inappropriate.[30] His Honour further stated:

Where a resulting trust arises and the beneficial interest is held by parties as tenants in common in proportion with their contributions to the purchase price, and there is a mortgage in the names of both parties, then to the extent to which one party pays more than his, or her, share of interest and principal secured by the mortgage, an equity arises in favour of that party, and that party is entitled to an equitable charge securing a contribution from the other party or parties: Ingram v Ingram, at 102. The imposition of an equitable charge will represent the quantum of the relevant contribution.[31]

1. In Silvester v Sands EM Heenan J set out the following principles applicable to payments made after the purchase of a property:

It is therefore necessary to examine the principles which apply to claims for an account or an allowance in respect of improvements, mortgage repayments, repairs and other like expenditure on property as between beneficial co-owners. These have been examined extensively in Ryan v Dries (supra) and in Oxley v Hiscock [2004] EWHC 2473; [2004] 3 All ER 703 CA although it may be that the current English approach gives greater recognition to non-pecuniary contributions than has been accepted in this country.

In an instance where the beneficial ownership of a property is shared between two people, either husband or wife, co-habitees or others, and one leaves, with the remaining co-owner continuing or taking over mortgage repayments and the responsibility for repairs and improvements, there can be an account taken in equity between those parties. For the paying party to recover an allowance for any appreciation in the value of the capital asset because of these outgoings it is necessary to prove that the expenditure has, in fact, produced an ascertainable increase in the capital value as, for example, in the case of a renovation which has enhanced the market value of a house or, in relation to the repayments of a mortgage where the repayments have effected an ascertainable reduction in the principal previously owing under the mortgage. In the absence of proof of an increase in capital value so caused, no recovery because of unrelated appreciation in value will be possible and the parties are left to hold the property, or share the proceeds of any sale, on the basis of their established beneficial interests, usually, but not always, arising from the extent of their contributions towards the cost of its acquisition ...

Often there will be a situation where one of the co-beneficial owners vacates the premises and leaves the other in occupation who, staying on, through choice of necessity continues to meet the mortgage repayments, rates, taxes and like expenditure but, in such cases, the person claiming a contribution or an account will be chargeable with an occupation rent in respect of the period in which he or she continued to enjoy sole possession of the premises.[32]

1. The above extract from the judgment in Silvester v Sand was cited with approval by Forrest J in Rosselli v Rosselli (Executrix to the will of Remo Rosselli).[33] In my view, the approach taken by Forrest J in Rosselli, in which his Honour had regard to Part IV of the Act, is the correct approach to be adopted in the present case, in respect of contributions which were not part of the purchase price and for which Gayle has received an unintended benefit.
2. Therefore, I will consider Mark's claim for contribution on the basis that Gayle was to contribute to the cost of the Home Loan and other outgoings associated with the Property based on my finding that her beneficial interest is 45.67%.
3. Consequently, I find that it is just and fair to order that Mark is entitled to contribution from Gayle to the extent that he paid more than 54.33% (his beneficial interest in the Property) of the Home Loan payments and other outgoings.

1. Mark produced a spreadsheet detailing all payments made against the Home Loan. He gave evidence that the loan amount was $293,000, which was secured with a mortgage over the Property in favour of Westpac Banking Corporation. He said that the balance of the purchase price paid at settlement was $270,000 plus additional amounts relating to the purchase, which included adjustments, conveyancing costs and stamp duty, which were all paid out of the Home Loan. He said that the settlement of the Property resulted in a net refund of moneys in the amount of $6,998.86, which were then deposited back into the Classic Account on 27 August 2004.
2. Mark gave evidence that the Home Loan was created in both his and Gayle's name and that amounts drawn from the Classic Account were paid into the Home Loan account by direct debit.
3. Details of all payments drawn from the Classic Account and paid into the Home Loan account from 26 August 2004 until 15 July 2013 have been provided by Mark. Copies of the bank statements verifying those transactions have also been provided. The total amount paid into the Home Loan account from the Classic Account is $203,497.
4. According to Mark, he has reviewed the Home Loan account and believes that as of July 2013, Gayle made the following direct payments into that account:[34]

1. Mark also gave evidence that his review of the Home Loan account revealed that Gayle also made withdrawals from the Home Loan account as follows:[35]

1. During cross-examination, Gayle conceded that she withdrew approximately $10,000 from the Home Loan account. Further, she did not dispute Marks's evidence that up until July 2013, she had paid $14,337.50 into that account.
2. Consequently, I find that Gayle has paid a net sum of $4,367.50 directly into the Home Loan account, taking into consideration the amount she has also withdrawn from that account.
3. However, Gayle contends that the payments made into the Home Loan account represent only a portion of the total monies that she has contributed in reduction of the Home Loan. In her witness statement, she states:
   1. After we moved into Burston Road, I began earning money in addition to my regular job by the purchase renovation and sale of furniture which had always been a hobby of mine. That venture was successful and the profits from the sales were remitted to the Applicant for my share of the Burston Road Property in cash.
   2. The arrangement that we had was that I would look after the house generally and in particular, would do all the cleaning and cooking and pay for food. I paid for utilities, pool expenses, maintenance, cleaner, furniture and some clothing for the applicant. I estimate that I contributed approximately $400-500 per week on this basis.
4. Gayle further states that:
   1. I regularly provided funds in cash to the Respondent (Mr Sherwood) who would apply these funds to the preservation and improvement of the Burston Road Property including but not limited to the payment of the Mortgage... I have now had the opportunity to review the accounts and statements provided by the Applicant and have been able to identify some $100,000.00 of cash deposits into his account which indicate his regular receipt of cash.
5. During cross-examination, Gayle was asked whether she had any records of the sales of furniture which she claimed were made. She answered that she had no records of sale because the sales arose as a result of her picking up hard rubbish which she refurbished and then resold on eBay.
6. In his witness statement, Mark sets out a table of all deposits made into his Classic Account. According to Mr Sherwood, all monies received in respect of rent from other properties, wages and other income together with any payments made by Gayle that were deposited into his Classic Account are recorded in that table. He states that during the period 13 January 2003 to 20 May 2013, Gayle deposited $13,310 into the Classic Account. Bank statements were produced to verify those deposits.
7. Mark's statement is at odds with evidence given by Gayle that she made cash deposits of $100,000 into Mark's personal account.
8. During cross-examination, Mark was asked about the number of transactions recorded in his Classic Account statements, which were not recorded as payments from Gayle. Those transactions were:

1. In relation to the $3,000 deposit, Mark said that this amount represented salary paid from Infotech Australia Pty Ltd ('ITA'), a company in which he is sole director and shareholder. In that respect, Mark gave evidence that he would, usually on a monthly basis, draw a cheque on the ITA bank account in favour of himself or transfer funds electronically to pay himself a salary from ITA.
2. The entry in the Classic Account bank statement does not indicate that the deposit was made by way of a cheque, nor does it indicate that the deposit was a transfer from another account. Nevertheless, bank statements produced for a cheque account held by ITA reveal that $3,000 was drawn from that account on 9 June 2004 (cheque number 033050). Therefore, I find it probable that the $3,000 deposited represents salary from ITA and not a deposit made by Gayle, as suggested by Mr Schlicht.
3. In relation to the other amounts totalling $1,400, Mark conceded during cross-examination that those payments may have been additional payments made by Gayle. However, that concession was only made as a result of Mr Schlicht erroneously suggesting that the payments were received in 2004, when in fact they were received in 2005. Had those deposits been received in 2004, there may have been force in the argument that the deposits could not have been rent, as alleged by Mark, because the relevant property was first tenanted in 2005. However, as the relevant property was tenanted at a time when the deposits were made, I find that it is more than likely that the deposits constitute rent receipts and not contributions from Gayle.
4. In addition to the above amounts, Mark concedes that a further $13,310 was deposited into his Classic Account by Gayle during the period 23 April until 20 May 2013. The first payment of $300 was made on 23 April 2003. The next payment was made on 14 June 2004 and relates to Gayle's contribution to the deposit monies for the purchase of the Property. It is not clear to me what relevance is to be attributed to the payment made on 23 April 2003 as it was made more than 12 months prior to the purchase of the Property and well before the parties had even contemplated purchasing the Property. In those circumstances, I do not regard that payment as a contribution to cost of Home Loan or other expenses associated with the Property.
5. Apart from the above amounts, the only evidence of Gayle having paid Mark $100,000 is a general statement made by her in her witness statement that she had reviewed the accounts and statements provided by Mr Sherwood and has been able to identify some $100,000.00 of cash deposits into his account which indicate his regular receipt of cash.
6. No documents have been produced by Gayle to verify payments amounting to $100,000, nor did she give any evidence to indicate what entries in the bank records produced by Mark reflect payments made by her. In those circumstances, I consider there is insufficient evidence to find, on the balance of probabilities, that Gayle paid $100,000 to Mark over the relevant period. Consequently, I find that the amount paid by Gayle to Mark over the relevant period is $11,010,[36] made up as follows:

1. Mark contends that the $11,010 paid into his Classic Account was treated by him as a repayment of a loan in the amount of $16,364.24 given to Gayle. In his witness statement, he sets out a number of transactions spanning over the period February 1998 until May 2005, in which he records lending amounts to Gayle totalling $16,364.24. He states:

... the moneys so paid were to be treated as a loan by me to the respondent and this was agreed between the respondent and me.[37]

1. Clearly, the contention that payments made by Gayle into the Classic Account were made in order to discharge a loan are at odds with Gayle's evidence that those payments constituted contribution to the cost of repaying the Home Loan. No document was produced verifying the loan agreement, nor was any evidence given as to its terms. Moreover, the transactions spanning over that eight year period in many cases relate to minor expenditure. For example, Mark recounts that on 5 October 1999, $200 was given to Gayle for her living expenses. Another example is that on 18 August 1998, $105 was given to Gayle for a replacement battery for her vehicle. In my view, it is unlikely that these amounts were ever intended to constitute the constituent parts of a loan amounting to $16,364.24. Without any details as to the terms of such a loan agreement or evidence of any consideration given; and in light of the fact that the parties had during that period of time lived together harmoniously, I am of the view that the amounts represent gifts, rather than an arm's length transaction. Therefore, I do not find that the payments made by Gayle into the Classic Account constitute repayment of a loan. I find it more than likely that these amounts represent her contribution to payment of the Home Loan.
2. Consequently, I find that Gayle has contributed a net total of $15,377.50 to the Home Loan account, made up as follows:

1. Mark gave evidence that $203,497 has been deposited from the Classic Account into the Home Loan account. That evidence was not challenged and was verified by bank statements. I accept that evidence. However, Mark gave evidence that after settlement of the Property, there was a surplus of $6,998.86 of the loan amount (after payment of the purchase price and associated costs), which was deposited into his Classic Account. There is no evidence that this amount was paid into the Home Loan account and Mark concedes that he is required to account for this amount. Given that this amount was not paid into the Home Loan Account in reduction of the Home Loan but rather, retained in Mark's personal account, the amount is akin to withdrawing funds from the Home Loan account. Therefore I find the net amount paid into the Home Loan account from the Classic Account as at 29 July 2013 is $196,498.14, of which Gayle has contributed $11,010 and Mark has contributed $185,488.14. I further find that in addition to those amounts, Gayle has paid a net amount of $4,367.50 directly into the Home Loan account.[38]
2. Consequently, the parties' contributions to the payment of the Home Loan are:

Proportion of each party's contribution based on their beneficial interest.

1. Accordingly, I find that it is just and fair that Mark is entitled to contribution from Gayle of $76,357.50, representing payment of the Home Loan made by Mark over and above his commensurate beneficial interest in the Property.

1. In my view, expenditure relating to usage of utilities and to a lesser extent, maintenance of the Property, is difficult to bring into account when assessing the contributions of each co-owner. Utility usage expenditure is contingent upon use and difficulties arise where one co-owner may have benefited more by the use of the utility than the other co-owner. In such a case questions arise as to whether the co-owner who has benefited more should pay a higher proportion of the utility usage charge when amounts are brought into account.
2. In the present case, those difficulties are highlighted by a number of factors raised by the evidence. In particular, it is common ground that co-habitation was not consistent over the period that the parties have co-owned the Property. There were times when Gayle lived elsewhere. Similarly, more recently Mark has vacated the Property. However, during the period that each party lived elsewhere, belongings were left at the Property and parts of the residence were kept vacant for the absent co-owner. Further, Gayle alleges that Mark's use of the Property as a place of business has increased the load of utility use, an allegation denied by Mark. In his witness statement, he states:

(74) The Respondent claimed that I had the heating up too high in winter, so she refused to pay the gas bills.

1. The extract from Mark's witness statement illustrates the difficulty in taking utility usage charges into consideration when assessing each co-owner's relative contribution.
2. In my view, the evidence in this case justifies a finding that utility usage costs should lie where they fall. To artificially determine that those usage costs either should have been paid on an equal footing or that they are to be taken into account in assessing each party's equity in the Property is problematic. Accordingly, I do not consider it just and fair to take those payments into consideration. Therefore, gas, electricity, telephone, internet and water usage are matters which I consider should not be taken into account in the present case. Consequently, I will proceed on the basis of that finding.

1. According to Mark, the aggregate amount of council rates levied from the time of purchase until 16 April 2013 is $8,881.14. The rates applicable to 2004 were paid as part of the adjustment settlement sum at the time of purchase and therefore were paid from the Home Loan Account.
2. Mark states that he paid $3,670.26 during the period May 2007 until May 2011 in respect of council rates. He further states that his review of the documentation relating to council rates indicates that Gayle has most likely paid $4,492.34 towards council rates during the applicable period, making a total of $8,162.60 paid. Therefore, I assume that the difference of $718.54 remains unpaid.
3. Mark's evidence is not challenged and is in part verified by bank statements showing the payments he has made. Therefore, applying the proportionate percentages of 54.33% in the case of Mark and 45.67% in the case of Gayle, Mark should have paid $4,434.74 and Gayle $3,727.86. Consequently, $764.48 has been over paid by Gayle**.** Accordingly, I find that it is just and fair that this amount is debited from any award for contribution made in favour of Mark.

1. Mark gave evidence that he has paid $5,051.15 towards water rates and charges. Details of each payment are set out in a table included in his witness statement dated 19 August 2013. He further states:

(72) My review of the documentation relating to water rates and charges that have been charged in relation to the property indicates that the Respondent has made the following payments in respect of water rates and charges charged in relation to the Property from 27 August 2004 to 9 January 2013 (refer Attachment EE)

1. There is no specific evidence from Gayle as to what amount she paid in respect of water rates and charges. As indicated above, her evidence is general in nature and she goes no further than to say that she paid rates from time to time, although is unable to say when, to whom or what amount.
2. Given the lack of evidence on the part of Gayle, I accept the evidence of Mark as to the amount paid by the parties in respect of water rates and charges.
3. However, as I indicated above, I do not consider that it would be just and fair in the present case to take into consideration water usage, as opposed to service charges, which are fixed and apply irrespective of usage. Regrettably, not all of the water utility notices produced by Mark are complete and some do not have information differentiating between usage and service charges. Nevertheless, an examination of the complete notices reveals that the service charges, on average, represent 61 % of the total charge. My calculations are as follows:[39]

1. Therefore, doing the best I can with the evidence before me, I find that the percentage of service charges attributable to water utility notices paid by Mark is $3,081.20, representing 60.1% of his total expenditure. Similarly, based on the evidence of Mark, I find that the amount expended by Gayle is $229.27, again using 60.1% as the percentage attributable to service charges. I find that those charges should have been paid according to the percentage of each parties' beneficial interest, with Gayle contributing $1,511.89 of the aggregate paid amount of $3,310.47. Therefore, I find that it is just and fair that Mark is entitled to contribution from Gayle of $1,282.62, representing payment of water rates and charges made by Mark over and above his commensurate beneficial interest in the Property.

1. For the reasons set out above, I consider that expenses incurred in respect of gas, electricity, telephone and internet should lie where they fall and not be taken into account.

1. According to Mark, he has spent $1,154.02 in respect of insurance cover for the property. He further states that he was advised by Gayle that she paid an amount of $928.47 for insurances attached to the Property, making a total outlay of $2,082.49. Therefore, I find that Mark's proportionate contribution to the payment of insurance should have been $1,131.42. Consequently, Mark has paid $22.60 more than his proportionate share. Therefore, I find that it is just and fair that Mark is entitled to contribution from Gayle of $15.52, representing payment of insurance made by Mark over and above his commensurate beneficial interest in the Property.

1. According to Mark, the amount expended by each party in respect of gardening is comparable. According to Mark, Gayle has indicated to him that she has spent $5,535 on gardening expenses, although no direct evidence is given by her in that respect. Nevertheless, Mark concedes that documentation provided to him verifies that Gayle spent $2,970 on gardening expenses. Mark gave evidence that he spent $5,727 on gardening. Therefore, the aggregate amount spent on gardening is $8,505. Therefore, I find that Mark's proportionate contribution to the payment of gardening maintenance should have been $4,620.77. Consequently, Mark has paid $1,106.23 more than his proportionate share. Therefore, I find that it is just and fair that Mark is entitled to contribution from Gayle of $1,106.23, representing payment of gardening maintenance made by Mark over and above his commensurate beneficial interest in the Property.

1. Mark gave evidence that he has spent $14,692.32 in maintaining the Property. In that respect, he prepared a table which set out in detail all of the expenditure making up that amount. A number of invoices or receipts were also produced and annexed to his witness statement. According to Mark, Gayle has spent $8,048.25 in maintaining the property, which includes the purchase of two dishwashers.
2. Looking at the table prepared by Mark, it is difficult to differentiate between everyday expenses associated with living in the Property and capital expenditure or even expenditure related to repairs and maintenance. In particular, many of the items listed are screws, bolts, nuts, globes, plugs and the like. There is no evidence tying these types of items to any particular work carried out at the Property. In addition, some of the items seem to relate to work tools, rather than expenditure specifically related to the Property. For example, the items include pots, spray gun, garden tools, and a chainsaw. As I have already indicated, it is impossible to discern from the evidence whether the expenditure relates to living expenses, maintenance expenses or expenses of a capital nature. For that reason, I do not consider that it would be fair and just to take into consideration the items listed under Repairs and Maintenance. The parties' respective contributions under this head will lie as they fall.

1. Having regard to my findings set out above, I find that the parties' respective interests in the Property should be adjusted such that each holds the Property as tenants in common in the following proportions:
   • (a) Mark as to 54.33 %; and
   • (b) Gayle as to 45.67%
2. In addition, based on the amounts paid by both parties towards the Home Loan and other outgoings and expenses associated with the Property, I find that Mark is entitled to contribution from Gayle to the extent that he paid more than an amount commensurate with his beneficial interest in the Property. Consequently, I find that Mark is entitled to contribution from Gayle in the amount of $78,004.47, made up as follows:

1. Having regard to the fact that the parties had requested that the matter be returned following my determination of the issues before me, I will list the proceeding for a further directions hearing, at which time the parties are to make submissions as to the final form of orders to be made.

[1] Reply Witness Statement of Mark Sherwood dated 27 August 2013 at pages 14-15.

[2] Reply Witness Statement of Gayle Sherwood dated 21 August 2013 at pages 4-5.

[3] Witness statement of Mark Sherwood dated 19 August 2013 at page 64.

[4] [2011] VSC 362 at [27].

[5] [1908] HCA 63; (1908) 7 CLR 277 at 304.

[6] (1991) 22 NSWLR 687.

[7] Apart from an amount relating to a loan said to have been given to Gayle.

[8] Quoting Deane J in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583.

[9] [1987] HCA 59; (1987) 164 CLR 137 at 147-148.

[10] [1984] HCA 81; (1984) 155 CLR 242.

[11] [2013] NSWSC 926.

[12] See also judgment of Mason and Brennan JJ in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 258.

[13] In the sense described in Muschinski v Dodds and Baumgartner v Baumgartner,

[14] Muschinski v Dodds [1985] HCA 78; (1985) 62 ALR 429 at 450-1.

[15] Muschinski v Dodds [1985] HCA 78; (1985) 62 ALR 429 at 439 per Mason J.

[16] [2012] NSWSC 685.

[17] Payne v Rowe [2012] NSWSC 685 at [93].

[19] Muschinski v Dodds [1985] HCA 78; (1985) 62 ALR 429 at 446. See also judgment of Deane J at 452.

[20] [2012] VSC 237.

[21] [2012] VSC 237 at [280].

[22] [1990] UKHL 14; [1991] 1 AC 107 at 132-133.

[23] Witness statement of Gayle Sherwood at paragraph 19.

[24] See paragraph 17 above, setting out Mark's evidence on this issue.

[25] [1984] HCA 81; (1984) 155 CLR 242 at 257.

[26] Murtagh v Murtagh [2013] NSWSC 926.

[27] The fact that the parties may have agreed between them to repay the Home Loan with unequal contributions does not alter the fact that each remain jointly and severally liable to the mortgagee.

[28] Murtagh v Murtagh [2013] NSWSC 926 at [70].

[29] [2012] NSWSC 636.

[30] Murtagh v Murtagh [2013] NSWSC 926 at [94].

[32] [2004] WASC 266 at [139-141].

[33] [2007] VSC 414.

[34] Witness statement of Mr Sherwood dated 19 August 2013 at page 40.

[36] This amount excludes the $2,000 paid towards the deposit.

[37] Witness statement of Mark Sherwood dated 19 August 2013 at paragraph 104.

[39] Some of the water utility notices were not complete and did not contain information differentiating between water usage and service charges. Accordingly, those incomplete notices have been ignored in the calculation of service charges.