Woodland v Rodriguez

• 22 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4363/03 BRENDA JANICE WOODLAND -v- MONICA ALICIA RODRIGUEZ JUDGMENT 1 MASTER: These proceedings were instituted by summons filed by the Plaintiff, Brenda Janice Woodland, on 15 August 2003. That summons did not name a defendant. 2 Subsequently, consequent upon orders made on 17 November 2003, a statement of claim was filed by the plaintiff on 16 December 2003. That pleading named as defendant Monica Rodriguez, (described therein "as Administrator of the Estate of the late Richard William Rodriguez"). 3 By that pleading the Plaintiff claims relief by way of declaration of trust in respect to a house property situate at an known as 33 Margaret Street, Fairfield Heights ("the Fairfield property"); damages for breach of fiduciary duty; and, in the alternative, an order for provision for her maintenance and advancement in life out of the estate of the late Richard William Rodriguez, pursuant to the Family Provision Act 1982. An amended statement of claim was filed on 10 November 2004, the first day of the hearing. That amended pleading makes no significant changes to the nature of the case asserted by the Plaintiff. 4 Essentially, the claim of the Plaintiff in respect to the Fairfield property is grounded upon the fact that Richard William Rodriguez (to whom I shall refer as "the Deceased"), in circumstances which I shall later recount in greater detail, effected the sale of a house property owned by the Plaintiff at 27 Richardson Street, East Lane Cove ("the Lane Cove property") and with the proceeds thereof purchased in his sole name the Fairfield property. 5 The Defendant is the administrator of the intestate estate of the Deceased, who died on 13 December 2002, Letters of Administration having been granted to her on 18 November 2003. The only asset disclosed in the inventory of property is the Fairfield property, to which a value of $350,000 was then ascribed. 6 By her defence filed on 24 March 2004 the Defendant admits certain of the allegations in the statement of claim, and expressly does not admit the balance of the allegations therein. The Defendant does not expressly deny any of the allegations in the statement of claim. By her express non-admissions, however, the Defendant puts the Plaintiff to proof of those parts of the statement of claim which are not admitted. 7 On 27 August 2004 Justice Campbell, as Duty Judge in the Equity Division, ordered that the entirety of the proceedings be heard by a Master. 8 The Plaintiff was born on 21 November 1937 and is now aged 67 years. She has been married three times, her last husband, Byron Woodland, whom she married in about 1990, having died in about 1996. Mr Woodland left to the Plaintiff the Lane Cove property, together with about $180,000, held on cash deposit. The Plaintiff throughout most of her working life had been employed in various pharmacies, the last such employment (where she had worked for twenty-five years) being at McKinlay Pharmacy at Lane Cove. She retired from that employment in 1995, and has not worked since that time. 9 In early 1999 the Plaintiff was on two occasions admitted to the Longueville Private Hospital. The second occasion, in April of that year was for surgery on her right arm, following a fall. (I note that in her affidavit evidence the Plaintiff gave as the reason for her admission to hospital surgery on her right leg, following a fall. But, it is clear from the medical records of the Longueville Private Hospital (Exhibit C) that it was a fracture of her right humerus which necessitated her admission on 14 April 1999. However, some two years earlier, in about 1997, the Plaintiff had undergone surgery for a fractured femur, requiring the insertion of a pin and a plate.) At the Longueville Private Hospital she met Richard William Rodriguez (who was known to the Plaintiff as "William"), who was employed as a cleaner at that hospital. 10 At that time the Plaintiff, apart from the consequences of the surgery to her right arm, was suffering from a number of other health problems, including diabetes, osteoporosis, hypertension, depression and, apparently (although not conceded by the Plaintiff herself), the after effects of overindulgence in alcohol. 11 The Deceased had been born in Uruguay on 13 November 1964. He married the Defendant in Uruguay on 16 January 1984. The Defendant at that time was an Australian citizen, having come to this country from Uruguay as a child with her parents in about 1973. (The Defendant had been born in Montevideo in Uruguay on 13 November 1964.) The Defendant and her family later returned to Montevideo in about 1980. The Defendant came back to Australia in late January 1984, shortly after her marriage to the Deceased. He followed her to Australia about eleven months later, in the interim having successfully applied to immigrate to this country. 12 Thereafter the Defendant and the Deceased lived together in Australia, although they went on a holiday to Uruguay in 1988. 13 In about August 1995 the Deceased and the Defendant separated by mutual consent. However, they never divorced, and, although estranged, they were still married at the time of the death of the Deceased (who was then aged thirty-eight) on 13 December 2002. It follows, therefore, the Deceased leaving no children, that upon his intestacy the entirety of the estate of the Deceased passes to the Defendant. 14 The Defendant had in April 1997 met one Daniel Stewart, with whom she entered into a de facto relationship in February of the following year. Shortly thereafter she bore a child to Mr Stewart on 23 February 1998. The Defendant and Mr. Stewart continue to live in a de facto relationship. 15 Following her surgery at the Longueville Private Hospital the Plaintiff was discharged on 22 April 1999, and soon thereafter was admitted to the Greenwich Private Hospital at Greenwich. The Deceased came to visit her there. When the Plaintiff became aware that the Deceased had nowhere to reside, she suggested that he could come and live at the Lane Cove property. The Plaintiff at that time had recently been diagnosed with diabetes, and she considered that she would need someone to look after her in her residence. According to the Plaintiff, the Deceased said to her, "I can look after you". After leaving the Greenwich Private Hospital, the Plaintiff returned home to the Lane Cove property, where she and the Deceased then resided together. The Plaintiff under cross-examination vehemently denied that there was anything in the nature of a sexual relationship between herself and the Deceased (who was twenty-seven years her junior). I completely accept that denial. 16 According to the Plaintiff, whilst she and the Deceased were residing at the Lane Cove property, the Deceased said to her, "I have not got any money", to which the Plaintiff responded "I have a bank account. You can use my bank account". The Plaintiff said that she then attended the St. George Bank at Lane Cove, and authorised the Deceased to have "signing authority" on her bank account. The evidence is not precise as to when that authority was given. 17 On 5 April 2000 the Plaintiff executed a power of attorney in favour of the Deceased. On 17 July 2000 the Plaintiff and the Deceased established an account in their joint names with the Colonial State Bank, each of them having authority to operate that account. 18 The Deceased availed himself of that authority, frequently withdrawing amounts of more than $1,000 on several occasions in the one day. (For example, on 2 August 2000 there were three separate withdrawals from the account, totalling $9,300, on 4 August a withdrawal of $2,000, on 8 August a withdrawal of $2,000, on 10 August a withdrawal of $1,000, on 11 August a withdrawal of $500, on 15 August a withdrawal of $1,000, on 17 August a withdrawal of $600, on 21 August a withdrawal of $2,000, on 28 August a withdrawal of $2,000; and on 24, 28, 29 and 31 August there were withdrawals from automatic teller machines totalling $5,000.) It was not disputed by the Defendant that the Deceased was a heroin addict. (Indeed, his death on 13 December, 2002 was the result of a drug overdose.) For about two years before they separated in 1995 the Defendant was aware that the Deceased was addicted to heroin. It is a legitimate inference from the amounts and the frequency of the withdrawals made by the Deceased from the foregoing bank accounts that those withdrawals were for the purpose of feeding the Deceased's heroin addiction. 19 The sale of the Lane Cove property was effected by the Deceased alone, in the exercise of the power of attorney granted to him by the Plaintiff. The sale price was $630,000. Of the proceeds of sale an amount of $461,943 was on 6 December 2000 paid into a joint account with the State Bank of New South Wales in the names of the Plaintiff and the Deceased. The Plaintiff herself had no involvement in the sale of the Lane Cove property. 20 The solicitors who were acting for the vendor on the sale, Cabarrus and Associates (who are also the solicitors for the Defendant in the present proceedings) received an instruction dated 4 December 2000 for the disposition of the net proceeds of sale (Exhibit F). That instruction included the payment of $102,688.71 to Colonial State Bank "in full repayment of loan a/c secured on the title by mortgage". It also provided for the balance, after payment of legal costs and expenses, to be paid into a specified account in the joint names of the Plaintiff (referred to as Brenda Janice Parsons, being her previous surname) and the Deceased with the Colonial State Bank. Presumably the foregoing amount of $461,943 was the remaining balance. The evidence does not disclose whether the mortgage on the Lane Cove property had been given by the Plaintiff herself (or her last husband) before the Deceased entered her life, or whether it had been given by the Deceased in the exercise of the power of attorney from the Plaintiff.

21 After the sale of the Lane Cove property, the Deceased and the Plaintiff resided for about six months with the Deceased's brother, Johnny Rodriguez, and his wife and children, at Carramar. 22 The Deceased then arranged to purchase the Fairfield property for $216,800. Contracts were exchanged on 6 April 2001 and the purchase was completed on 18 June 2001. The Plaintiff had no involvement in the choice of the Fairfield property or in any other matter associated with the purchase of that residence. I note, in passing, that the present value of the Fairfield property is $315,000 (that being precisely one half of the price for which the Lane Cove property was sold four years ago). 23 The totality of the purchase price and all other costs and expenses associated with the purchase of the Fairfield property had their source in the proceeds of sale of the Lane Cove property which had been paid into an account in the joint names of the Plaintiff and the Deceased. The Deceased effected the payment of the purchase price and all other associated costs and expenses by the exercise of his authority to operate the joint bank account. 24 According to the Plaintiff the Deceased, with the acquiescence of the Plaintiff, withdrew $30,000 from the Plaintiff's bank account, allegedly for the purpose of sponsoring his brother Johnny, Johnny's wife, the Deceased's mother, his sister Dianne and the Deceased's own children to come to Australia. It is somewhat unclear when that alleged withdrawal took place, although it would seem to be a legitimate inference that, if it was made for the ostensible purpose stated by the Deceased to the Plaintiff (rather than for the purpose of feeding the Deceased's heroin addiction), it would have occurred before the Plaintiff and the Deceased entered into residence with the Deceased's brother and his family at Carramar.

25 Throughout the period whilst the Deceased and the Plaintiff were residing together the Deceased acted as carer for the Plaintiff. It is suggested that he received a carer's pension for doing so. However, there is no direct evidence to support that suggestion. 26 I have received a written outline of submissions from Counsel for the respective parties, together with a chronology on behalf of the Defendant. Those documents will be retained in the Court file. 27 Essentially, it is the submission of the Plaintiff that the Fairfield property was purchased with the Plaintiff's money, being part of the proceeds of sale of the Lane Cove property, which belonged solely to the Plaintiff. In consequence, therefore, so runs the submission, the Deceased held the Fairfield property on a resulting trust for the Plaintiff, and thus the Defendant, as the administrator of the intestate estate of the Deceased, now holds the Fairfield property on such a resulting trust for the Plaintiff. 28 If the Court finds that there is such a resulting trust, then it is unnecessary for the Court to proceed further with the claim of the Plaintiff grounded upon an allegation of undue influence exercised upon her by the Deceased; or with the claim of the Plaintiff grounded upon unconscionable conduct on the part of the Deceased; or with the claim of the Plaintiff for provision for her maintenance and advancement in life pursuant to the Family Provision Act. 29 The Defendant, however, points to the fact that the funds used by the Deceased for the purchase of the Fairfield property came out of the joint account in the names of the Plaintiff and the Deceased with the Commonwealth Bank, which both the Plaintiff and the Deceased were entitled to operate. The Defendant submits that the Deceased was entitled to withdraw those funds and was under no obligation to account for them to the Plaintiff, or to hold on trust for the Plaintiff any property which he purchased with those funds. 30 The mere fact that the proceeds of sale of the Lane Cove property, being proceeds to which the Plaintiff alone was entitled, were placed in a bank account in the joint names of the Plaintiff and the Deceased, which the Deceased was enabled to operate, does not have the consequence that the Deceased was a beneficial owner of those funds or, indeed, that he was entitled to deal with those funds, being the property of the Plaintiff, in a manner inconsistent with the rights of the Plaintiff. 31 Where, as here, property is purchased in the name of one person with funds provided by another, it is presumed that the person in whose name the purchase is effected holds that property on a resulting trust for the person who provided the funds. (See Jacob's Law of Trusts in Australia, 6 ed. (1997); see, also, Napier v Public Trustee (1980) 32 ALR 153, per Aickin J (with whom Gibbs ACJ, Mason, Murphy and Wilson JJ agreed) at 158; Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060, 13 November 2002, unreported, where Campbell J helpfully collated the relevant authorities at paragraphs [128] ff.) 32 In the instant case there is no suggestion of a presumption of advancement in favour of the Deceased, which would displace the presumption of a resulting trust in favour of the Plaintiff. 33 I am entirely satisfied, firstly, that the Fairfield property was purchased with funds belonging exclusively to the Plaintiff; and, further, that, in consequence, the Deceased held that property on a resulting trust for the Plaintiff. It follows, therefore, that the Defendant, as the administrator of the intestate estate of the Deceased, holds that property on the same resulting trust for the Plaintiff. 34 My foregoing conclusions are sufficient to dispose of these proceedings. 35 It is desirable, nevertheless, that I should express my views concerning the claims by the Plaintiff for relief grounded upon alleged undue influence exercised upon her by the Deceased and upon alleged unconscionable conduct of the Deceased in respect to the property of the Plaintiff; and for relief under the Family Provision Act. 36 There was placed in evidence a considerable quantity of documentary material relating to the medical condition of the Plaintiff, including clinical records produced on subpoena by the Longueville Private Hospital, by the Royal North Shore Hospital, and by the Liverpool Hospital. It is not necessary for me to refer in detail to the contents of those records. Suffice it to say that, throughout the period whilst the Deceased was residing with her, the Plaintiff's physical condition (on account of her various medical problems) was such that she was incapable of caring for herself and that her mobility was severely limited. In addition, she suffered from mental problems indicating the onset of early dementia. However, the Plaintiff's mental condition at the present time is such that Guardianship Tribunal, in the face of opposition from the Plaintiff herself, was not prepared in March 2004 to make a financial management order in relation to the Plaintiff. 37 It was abundantly clear from the evidence, however, that whilst the Plaintiff and the Deceased were residing together the Plaintiff was in need of a carer and that she was dependent upon the Deceased for her ordinary everyday activities. 38 The Plaintiff under cross-examination asserted that she regarded herself as a very independent, strong willed person who was very knowledgeable about property which she owned and what she wanted to do with her property. She said that she was capable of making her own decisions. 39 In respect to the granting of the power of attorney to the Deceased in April 2000 the Plaintiff said that she was forced into signing that document. She said that she understood that the power of attorney would enable the Deceased to act on her behalf, and, in particular, to sign documents on her behalf. Nevertheless, the Plaintiff was adamant in her assertion that he "forced me into signing it". The Plaintiff said that she signed documents allowing the Deceased access to her bank account and (as she subsequently learned) to sell her house, "because I did not have anyone else to look after me and feared that if I did not sign the documents he would stop looking after me and might hurt me". 40 When cross-examined concerning the authority to operate her account with the Colonial State Bank which she had given on 17 July 2000, the Plaintiff said that at one stage, "five or six years ago", she rang the Bank and asked them to close that account but that otherwise she took no steps concerning that account, giving as her reason for her failure to do anything in that regard, "because I was scared". 41 The Plaintiff's assertion that the Deceased killed her five cats, if correct, might well reflect badly upon the character and personality of the Deceased, but does not substantiate any claim that the power of attorney or the authority to operate the Plaintiff's bank account were given in consequence of undue influence exercised by the Deceased upon the Plaintiff. 42 The nature of the jurisdiction to set aside a transaction on the ground of undue influence was considered by the High Court of Australia in Johnson v Buttress (1936) 56 CLR 113. Latham CJ said, at 119, The jurisdiction of a court of equity to set aside gifts inter vivos which have been procured by undue influence is exercised where undue influence is proved as a fact, or where, undue influence being presumed from the relations existing between the parties, the presumption has not been rebutted. Dixon J (as he then was) said at 134, The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter. The source of power to practice such a domination may be found in no antecedent relation but in a particular situation, or in the deliberate contrivance of the party. If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act. But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected. When they stand in such a relation, the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well-understood act of man in a position to exercise a free judgment based on information as full as that of the donee. This burden is imposed upon one of the parties to certain well-known relations as soon as it appears that the relation existed and that he has obtained a substantial benefit from the other. 43 In the instant case, the relationship between the Plaintiff and the Deceased was not in any of the recognised categories which would cast upon the Deceased (and now upon the Defendant) the burden of rebutting a presumption that the benefits acquired by the Deceased in consequence of the authority given by the Plaintiff to operate her bank accounts and by the giving of the power of attorney were the result of undue influence exercised upon her by the Deceased. In consequence, therefore, it is for the Plaintiff to establish that undue influence was actually effected upon her by the Deceased. 44 I am not satisfied that the evidence supports the assertion of the Plaintiff that the foregoing transactions were the outcome of an actual influence by the Deceased over the mind of the Plaintiff such that they cannot be considered the Plaintiff's own free acts. It follows that the Plaintiff has not established an entitlement to relief grounded upon such an allegation of undue influence. 45 Nevertheless, I am satisfied that in circumstances where, as here, the Plaintiff was incapable of properly caring for herself - and there is no doubt that, at least physically, she was not capable of caring for herself - the conduct of the Deceased in respect to the property of the Plaintiff, in particular, his acquisition of the Fairfield property in his sole name with funds provided entirely by the Plaintiff, constitutes unconscionable conduct of the nature recognised by the High Court of Australia in Amadio v Commercial Bank of Australia Limited (1983) 151 CLR 447 (see, also, the decision of Windeyer J in Urane v Whipper [2001] NSWSC 796; (2002) ConvR 55-992). 46 The circumstances in which the Plaintiff found herself when she, largely through the kindness of her heart (although, to an extent, motivated by concern for her own physical welfare), allowed the Deceased firstly to come into her residence at Lane Cove (before she had even returned home from hospital), and then to become her carer (a position for which he was said to have been remunerated by receiving a carer's pension), and ultimately to acquire considerable financial benefit as a consequence of the Plaintiff authorising him to operate upon her bank accounts and granting him her power of attorney, falls squarely within the circumstances calling for the intervention of a court of equity which have been described in such leading authorities as Blomley v Ryan (1956) 99 CLR 362. In that case McTiernan J said, at 392, His [the Defendant's] weakness was of the kind spoken of by Lord Hardwicke [in Earl of Chesterfield v Janssen (1751) 2 Ves.Sen. 125 at 155-156; 28 ER 82 at 100] in defining the fraud characterised as taking surreptitious advantage of the weakness, ignorance or necessity of another. The essence of such weakness is that the party is unable to judge for himself. 47 In the same case Fullagar J said, at 405, The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other. 48 Likewise, Kitto J, at 415, spoke of the principle which is "a well known head of equity", and which … applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands. (See, also, Bridgewater v. Leahy (1998) 194 CLR 457 at 469-471 per Gleeson CJ and Callinan J.) 49 It is difficult to envisage a case which more appropriately than the present calls for the intervention of a court of equity, administering justice (in the role inherited from the mediaeval Chancellor) as a court of conscience acting in personam by the grant of relief to the victim (or denial of it to the perpetrator) of conduct which was considered to be unconscionable. In the instant case the Plaintiff, frail in body, and suffering mental or emotional problems, incapable of living alone, on account of her physical infirmities, in need of a carer, was a ready victim for the Deceased's persuasion (motivated by the need to feed his heroin addiction) that, firstly, the Plaintiff should authorise him to operate upon her bank account; then, that she should grant him a power of attorney; and, finally, that she should agree to the sale of the house property which she had inherited from her last husband. Even if none of those actions on the part of the Plaintiff could be impugned, the conduct of the Deceased in then, without consultation with or authority from the Plaintiff, purchasing with the Plaintiff's money a house property which he placed solely in his own name, thus depriving the Plaintiff of all legal interest therein, is unconscionable conduct of the highest order which calls for relief from a court of equity. To deny the Plaintiff that relief would be to deny the most basic and fundamental jurisdiction of such a court. 50 It follows, therefore, that even if (contrary to the conclusion which I have already expressed) the Fairfield property is not held by the Defendant on a resulting trust for the Plaintiff, the transaction by which the Fairfield property was acquired in the name of the Deceased must, at the instance of the Plaintiff, be set aside. 51 I turn now to the claim of the Plaintiff under the Family Provision Act. 52 The Plaintiff asserts that she is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Act, in that she was "a person: … (ii) with whom the deceased person was living in a domestic relationship at the time of the deceased person's death". The phrase "domestic relationship" is in section 6(1) defined to have the same meaning as that phrase has in the Property (Relationships) Act 1984. 53 Section 5(1) of that latter Act defines, for the purposes of that Act, a domestic relationship as, (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adults persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. 54 Subsection (2) of the foregoing section is as follows, For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). 55 The Plaintiff submits that she was in a close personal relationship with the Deceased, in that she and the Deceased were living together and that the Deceased provided the Plaintiff with domestic support and personal care, whilst the Plaintiff (at least while they were residing in the Lane Cove property) provided the Deceased with a residence. 56 However, it is submitted on behalf of the Defendant that, since the Deceased was being paid a carer's pension, then whatever domestic support or personal care he was providing for the Plaintiff was being provided for fee or reward. In this regard I would firstly observe that there was no direct evidence that the Deceased was, in fact, being paid a carer's pension, let alone evidence of the nature or the amount of such pension. In the absence of clear and persuasive evidence in that regard, this submission cannot succeed. 57 If, however, it be accepted that the Deceased was, in fact, being paid a carer's pension, it then becomes necessary to consider the effect of such a pension in the light of the foregoing provision of section 5(2) of the Property (Relationships) Act. I have not been taken to any authorities concerning the construction to be placed upon the preclusion contained in paragraph (a) of section 5(2) from the definition of a domestic relationship. Although the preclusion is in its terms unlimited, it would seem to me unlikely that it was the intention of the Legislature to preclude a person who would otherwise without doubt come into the category of living in a close personal relationship (for example, a niece looking after her aunt, or a stepchild looking after a stepparent, or a grandchild looking after a grandparent), merely on account of the fact that the person who was providing the other with domestic support and personal care was in receipt of some form of pension from the social security authorities, such as Centrelink. I can fully understand the preclusion in the case of, for example, a nurse or a housekeeper who is being paid directly, or even indirectly, by the person for whom the domestic support and personal care are provided. 58 However, even if the Plaintiff is precluded from coming within the category of a person with whom the Deceased was living in a close personal relationship, by virtue of the fact that the Deceased was in receipt of a carer's pension (neither the existence nor the precise nature whereof has been established by the evidence), nevertheless, it is possible that the Plaintiff also comes within paragraph (d) of the definition of "eligible person", in that she was a member of the same household as the Deceased and that she was totally or partly dependent upon the Deceased, such dependency being of a physical nature, in that the Deceased was her carer, whilst the Plaintiff was lacking in mobility and was unable to look after herself. 59 I do not overlook the requirement of section 9(1), that, if the Plaintiff be an eligible person only within paragraph (d) of the definition, she must establish that there are factors which warrant the making of the application. The overriding factor is, of course, that the Deceased by his conduct deprived the Plaintiff of her own residence. However, as I have already observed, if the Plaintiff be successful (and I have already concluded that she must be successful) in her claim grounded upon a resulting trust or in her claim to set aside the unconscionable dealings with her property on the part of the Deceased, it becomes unnecessary for me to decide the claim for provision for her maintenance and advancement in life under the Family Provision Act. 60 Were it necessary for me to do so, however, I would have no hesitation in concluding that the Plaintiff, if she be an eligible person in relation to the Deceased, had established an entitlement to the entirety of the estate of the Deceased. Any competing claim of the Defendant as the widow of the Deceased may be totally disregarded. The Defendant had entered into a committed de facto relationship long before the death of the Deceased, which relationship has now obtained for almost seven years. She had no claim upon the testamentary bounty of the Deceased. Indeed, she was totally unaware of the death of the Deceased for some three months after he had died, when she was contacted by her present solicitor and told of her husband's death. (The informant on the Deceased's Death Certificate is shown as Y. Rodriguez, identified as the Deceased's brother.) In any event, the financial and material circumstances of the Defendant and her de facto spouse are such that any competing claim of the Defendant would not deprive the Plaintiff of an order for the entirety of the estate of the Deceased. 61 I summarise, as follows, my foregoing conclusions. 62 I am satisfied that the Deceased held the Fairfield property on a resulting trust for the Plaintiff, since it was purchased with the Plaintiff's money. There is no suggestion of any presumption of advancement in favour of the Deceased. 63 But if, however (and contrary to my foregoing conclusion), the Fairfield property not be held on a resulting trust for the Plaintiff, nevertheless the Plaintiff is entitled to have set aside the transaction of the Defendant in effecting the registration of the Fairfield property in his own name alone. That transaction constitutes unconscionable conduct of a kind long recognised by courts of equity as calling for a remedy of the nature fashioned by the Chancellors and their successors to protect persons in the very position of the present Plaintiff. 64 But even if the Plaintiff were not able to establish that the unconscionable conduct of the Deceased required that the Fairfield property, purchased with moneys provided exclusively by the Plaintiff but held in a joint bank account, with the Deceased, be registered in the name of the Plaintiff alone, nevertheless the Plaintiff was entitled, at the very least, to have the property registered in the names of herself and the Deceased as joint tenants. If that had been done, then the property would have devolved upon the Plaintiff by survivorship, upon the death of the Deceased. 65 In the light of my foregoing conclusions concerning the existence of a resulting trust and concerning the unconscionable conduct on the part of the Deceased, it becomes unnecessary for me to consider the claim of the Plaintiff for an order for provision for her maintenance and advancement in life under the Family Provision Act. Nevertheless, were I to proceed to do so, then, if the Plaintiff be an eligible person (which I consider it likely that she is), I would make an order awarding to the Plaintiff the entirety of the estate of the Deceased. 66 The Plaintiff has been totally successful in her claim against the Defendant. She seeks an order that the Defendant pay her costs. 67 The Defendant, however, submits that if the Plaintiff's claim for a resulting trust or in respect to unconscionable conduct be established, then the Defendant should be indemnified in respect to liabilities against the Fairfield property (such as municipal rates). Further, that the Defendant should be indemnified in respect to the funeral expenses of the Deceased, which apparently the Defendant has now paid. (I assume that those expenses had already been incurred well before the Defendant became aware, some three months later, of the death of the Deceased.) Otherwise, so it is submitted, through no fault of her own the Defendant would find herself personally liable for such charges against the property and for the funeral expenses. In recognising that equity moulds its relief to meet the circumstances of each individual case, the Defendant submits that the Court should, if it finds for the Plaintiff upon the claims based upon a resulting trust and upon unconscionable conduct, impose terms in respect to municipal rates and funeral expenses. Further, the Defendant submits that, if the Plaintiff be successful upon her equitable claims, either the Defendant should have her costs out of the estate, or there should be no order as to costs (to the intent that each party would bear her own costs of the proceedings). 68 The Plaintiff concedes that if she be successful in relation to the resulting trust or in relation to her Family Provision Act claim she would be liable for municipal rates upon the Fairfield property. 69 However, the Plaintiff opposes the submission that the Defendant should receive from the estate the funeral expenses of the Deceased. The Plaintiff points to the fact that the funeral expenses form a personal expense of the Defendant, and that, whether or not the Deceased was the owner of or entitled to the Fairfield property, the Defendant would have been responsible for his funeral. I am in agreement with that submission. I do not see how the fact that the Deceased may have wrongfully got title to the Fairfield property can in any way affect the liability of his widow to pay for his funeral expenses. (I would observe, in passing, that the evidence regarding these funeral expenses was skimpy in the extreme. There would appear to be no reason why those who organised the funeral should not have paid for it, the Defendant at that time being totally unaware of the death of the Deceased.) 70 In respect to the costs of the proceedings, the Plaintiff pointed to the fact that it had always been open to the Defendant to allow the Plaintiff to proceed with the application which the Plaintiff had made for a grant of administration (and which the Defendant had successfully opposed and in which the Defendant had sought costs against the Plaintiff); or otherwise to have filed a submitting appearance in the present proceedings. The Defendant in the present proceeding had resisted the claim of the Plaintiff, not merely putting the Plaintiff to proof of the allegations asserted in the statement of claim, but enthusiastically opposing the relief claimed. In making that last observation I intend no criticism of the Defendant or her legal advisors. However, the course adopted by the Defendant carried the risk of a costs order against her.

71 I can see no reason why the Court should depart from the usual course of ordering the unsuccessful party to pay the costs of the successful party. 72 I make the following orders:

(1). I declare that the Defendant holds on trust for the Plaintiff the property situate at and known as 33 Margaret Street, Fairfield Heights ("the Fairfield property"). (2). I order that the Defendant on or before 17 December 2004 (or such other date as may be agreed upon by the parties or ordered by the Court) effect the transfer to the Plaintiff of the Fairfield property.

(3). I order that the Plaintiff indemnify the Defendant against any liability for municipal rates and any other such charges in respect to the Fairfield property which may have accrued since the late Richard William Rodriguez ("the Deceased") became the registered proprietor thereof. (4). I order that the Defendant pay the costs of the Plaintiff.

(6). The exhibits may be returned. **********

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