Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak - [2014] NSWSC 1044

Supreme Court

New South Wales

Medium Neutral Citation: Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044
Hearing dates: 4,5,6 March 2014, 25 March 2014 and 28 March 2014
Decision date: 04 August 2014
Jurisdiction: Equity Division
Before: Robb J
Decision:
(1)Declare that the first defendant holds the property located at 8 Yeend Street Merrylands, in the State of New South Wales, being the property in folio identifier Lot 2 in Deposited Plan 240829 (the "Property") on a constructive trust as to half of the beneficial interest in the Property such that that interest in the Property will vest in the plaintiff upon the death of the first defendant.
(2)Declare that the plaintiff's interest in the Property in accordance with par (1) is subject to a charge in favour of the first defendant to secure the amount of $25,000, which the plaintiff is liable to contribute towards the mortgage to which the Property is subject.
(3)Order under s 20 of the Property (Relationships) Act 1984 (NSW) that the interests of the plaintiff and the first defendant in the Property (including as declared in pars (1) and (2)) be adjusted with the result that:
(a)The plaintiff is from the date of these orders entitled to half of the beneficial interest in the Property;
(b)The first defendant is from the date of these orders entitled to half of the beneficial interest in the Property.
(c)The plaintiff's interest in the Property is to be subject to an obligation to pay $25,000 towards repayment of the debt that is at present owed by the first defendant on the security of a mortgage over the Property.
(d)The first defendant's interest in the Property is to be subject to an obligation to pay the balance of the debt that is at present owed by the first defendant on the security of a mortgage over the Property
(4)Order for the return of exhibits as set out in par 201.

Catchwords: EQUITY - trusts - constructive trust - common intention trust - promise to leave house in will - s 20 Property (Relationships) Act 1984 - adjustment of interests in property
Legislation Cited: Property (Relationships) Act 1984 (NSW) ss 18, 20, 22
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Austin v Hornby [2011] NSWSC 1059
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Baker v Towle (2008) 39 Fam LR 323
Dable v Peisley [2009] NSWSC 772
Ducker v Smith [2011] NSWCA 2012
Green v Green (1989) 17 NSWLR 343
Ireland v Pratley [2013] NSWCA 445
Murgic v Murgic [2011] NSWSC 971
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
Saliba v Tarma [2009] NSWSC 581
Shepherd v Doolan [2005] NSWSC 42
Watson v Foxman (1999-2000) 49 NSWLR 315
Category: Principal judgment
Parties: Aytul Ak-Tankiz (plaintiff); Ferat Ak (first defendant) and Ramazan Ak (second defendant)
Representation: Counsel: N M Carney (plaintiff)
E H Baskerville (defendants)
Solicitors: John Karacan (plaintiff)
James Hassetts (defendants)

File Number(s): 2012/126261

Judgment

Introduction

The plaintiff, Ms Aytul Ak-Tankiz, is the daughter of the first defendant, Mr Ferhat Ak. The second defendant, Mr Ramzan Ak, is the brother of the plaintiff and the son of the first defendant. To distinguish between the two defendants, I will call the first Mr Ak, and the second, without any disrespect, Ramazan.

When Ms Ak-Tankiz's original statement of claim was filed on 20 April 2012, Mr Ak was the only defendant. The statement of claim pleaded the constructive trust claim that is considered below.

On 22 June 2012 Ms Ak-Tankiz filed a notice of motion in which she sought leave to file an amended statement of claim to add a claim under s 20 of the Property (Relationships) Act 1984 (NSW) (the "Act"). That leave was granted on 9 August 2012, even though the application to amend was made more than two years after cessation of the domestic relationship between Ms Ak-Tankiz and Mr Ak, which is the period in which applications under s 22 are required by s 18(1) of the Act to be made. It appears that the court granted Ms Ak-Tankiz leave under s 18(2) to make her application.

Also on 22 June 2012, Mr Ak's solicitor filed a notice of motion seeking an order under UCPR r 6.24 that Mr Ak's other children, being his sons Ufuk and Ramazan, and his daughter Arife, be joined as defendants to the action. On 9 August 2012 orders were made giving leave for Ramazan to be joined as second defendant, but refusing leave to join the other children.

It appears that Mr Ramzan Ak was only joined so that he would be bound by the outcome of the proceedings. The claim made by Ms Ak-Tankiz in her pleadings is made against her father alone. Ms Ak-Tankiz made a claim against her brother in her final written submissions. I will return to that claim below.

Ms Ak-Tankiz's claim is now contained in her amended summons filed on 27 September 2012. Mr Ak filed a defence on 26 October 2012.

The claim concerns the ownership of property located at 8 Yeend Street, Merrylands, New South Wales, which is the property in folio identifier Lot 2 in Deposited Plan 240829 (the "Property" or the "Merrylands Property"). Mr Ak and his late wife Ayse, who died on 12 January 2010, are still registered jointly as proprietors of the Property.

The parties jointly retained a valuer, Mr Simon Azar, who valued the Property at $835,000 as at 25 March 2014. The parties have accepted that valuation.

Ms Ak-Tankiz's claim in relation to the Property is made on two bases. First, Ms Ak-Tankiz claims a declaration that Mr Ak holds the Property entirely on a constructive trust for her, or alternatively on constructive trust for Ms Ak-Tankiz and Mr Ak in such shares as the court sees fit. Secondly, Ms Ak-Tankiz claims an order under s 20 of the Act that Mr Ak pay to her a sum of money that is just and equitable in the circumstances. Ms Ak-Tankiz also claims an order under the Act that the Property be charged with the payment of the sum that the court orders Mr Ak to pay under s 20 of the Act. As will be seen, Ms Ak-Tankiz ultimately advanced a case under the Act that ownership of the property should be vested in her. She also seeks certain consequential relief.

Ms Ak-Tankiz and her husband, Mr Mehmet Tankiz, gave evidence in Ms Ak-Tankiz's case, as did Ms Sandra Soulos, who is not a member of the family. The evidence for Mr Ak was given by himself, and two of his children, being Ramzan and Arife.

Ms Ak-Tankiz was represented by Mr NM Carney of counsel, while Mr EH Baskerville of counsel appeared for Mr Ak.

Uncontroversial Facts

The nature of the issues between the parties will appear more clearly if the uncontroversial facts concerning the relationship between the parties and the acquisition and improvement of the Property are first set out.

Ms Ak-Tankiz, her parents and siblings, migrated to Australia from Turkey on 14 February 1970.

Ms Ak-Tankiz was 8 years old at the time, having been born on 12 April 1962. Her siblings, Ufuk, Arife and Ramazan were born on 18 December 1963, 1 February 1965 and 1 January 1967 respectively.

Mr Ak worked in various employment from soon after the family's arrival to 1974, when illness prevented him from working until 1978. He gained employment until late 1979, when he suffered an injury at work. He was on workers compensation thereafter, until he received a payout of $10,000 in 1982. After that time Mr Ak relied upon a disability pension until 2002, and thereafter he received the age pension.

Ms Ak-Tankiz left school at Auburn Girls High School in September 1977, when she was about 15 years and 9 months old, before she completed Year 10.

Between about November 1977 and September 1978 Ms Ak-Tankiz worked as a sewing machinist at Leisure Master Pty Ltd. During that time she acquired professional skills as a sewing machinist.

Ms Ak-Tankiz entered into business as a contract-sewing machinist and seamstress after she left Leisure Master Pty Ltd, and has continued in that occupation to date.

The family lived in rented accommodation at various addresses until 1979, when a property at 1 Dalley Street, Lidcombe, was purchased in the name of Mr Ak and his wife (the "Lidcombe Property"). The price was $29,000. A deposit of $4000 was paid, and $25,000 was borrowed on mortgage from St George Building Society Ltd.

The family undertook renovations of the Lidcombe Property that required about 3 to 4 years to complete.

Ms Ak-Tankiz conducted her sewing business from the family home from the beginning, and continued to do so at the various homes the family occupied, until she finally left in 2010. She did not pay any rent to her mother and father for the opportunity to use a room in the various homes for the purposes of her business.

Ms Ak-Tankiz married on 14 July 1985, and moved out of the Lidcombe Property to live with her husband at 13 Mary Street, Lidcombe. The couple separated on 13 September 1985, and Ms Ak-Tankiz returned to the Lidcombe Property. Her divorce from her husband became effective on 20 November 1986. During the period Ms Ak-Tankiz lived at 13 Mary Street, she continued to operate her business from the Lidcombe Property.

The loan from St George Building Society Ltd was repaid, and the mortgage discharged, on 22 January 1991.

Ms Ak-Tankiz purchased an allotment at Maitland for $20,000 in 1993. The property was sold for $30,000 in 1994. Ms Ak-Tankiz purchased a residential unit in a suburb of Izmir, Turkey, in 1995 for AU$50,000.

Mr Ak and his wife sold the Lidcombe Property in 1997 for a price of $259,000, and the sale was completed on about 5 November 1997.

Simultaneously, Mr Ak and his wife acquired the property the subject of these proceedings, 8 Yeend Street, Merrylands for a price of $163,000. The difference of $96,000 was paid into Ms Ak-Tankiz's bank account. The deposit of $16,300 was paid out of her bank account. Solicitors' fees of $1500 and $300 in disbursements were also paid out of Ms Ak-Tankiz's bank account.

The home on the Merrylands Property was demolished and a new house constructed under a contract between Mr Ak and his wife and a company called Wincrest Constructions Pty Ltd. Construction of the new home was completed by about February 1997.

During the construction period the family had to move out and rented accommodation at 16 Lackey Street, Granville (the "Granville Property"). They occupied those premises until the end of February 1999. An amount of $16,060 in rent was paid out of Ms Ak-Tankiz's bank account.

In addition to using the surplus in the sales proceeds from the Lidcombe Property, Mr Ak and his wife borrowed $80,000 from Westpac Banking Corporation Ltd to finance the construction of the new home on the Merrylands Property.

After Ms Ak-Tankiz and her parents moved in, after completion of the renovations, various improvements were effected to the Property.

In 2003 Ms Ak-Tankiz gave to her uncle, Mr Ak's brother, a power of attorney that authorised him to sell the Izmir unit. The unit was sold in 2004 for AU$40,000.

In about March 2004 Ms Ak-Tankiz entered into a contract to buy 68 Jean Street, Seven Hills, (the "Seven Hills Property") in her own name, but for the use of her brother, Ramazan. The contract was completed on 30 July 2004 for a price of $437,000. The purchase was funded by a mortgage over the Merrylands Property, as well has the Seven Hills Property. By an undated Transfer, the Seven Hills Property was transferred to Ramazan and his partner for a price of $450,000.

Ms Ak-Tankiz married her present husband, Mr Mehmet Tankiz, in Turkey on 22 July 2005.

Ms Ak-Tankiz and her husband lived in the Merrylands Property from about January 2006 to 16 April 2010, when they moved out permanently.

Mr Ak's wife, Ayse, died on 12 January 2010.

Mr Ak has continued to live in the Merrylands Property since Ms Ak-Tankiz and her husband moved out. Mr Ak's daughter, Arife, now lives in the property with her 3 children, as does Mr Ramazan Ak and his son.

Ms Ak-Tankiz lives with her husband in rented accommodation at 3/62 Northumberland Road, Auburn.

Synopsis of contested facts

In summary, Ms Ak-Tankiz says that Mr Ak persuaded her to leave school early in order to earn income to supplement the family's resources, because Mr Ak had become dependent upon his disability pension. Mrs Ak also had a disability pension for most of the period. Ms Ak-Tankiz says that initially, when she was paid wages, she gave her pay packet unopened to her father, who used her wages for family purposes, save for small amounts for pocket money, lunches, and travel. Later, after Ms Ak-Tankiz started her own sewing business, and opened her own bank account, she paid many of the family expenses. These included the mortgage repayments on the Lidcombe and Merrylands Properties, and in the intervening period, the rent on the Granville Property. She says that she paid for most of the renovations carried out on the Lidcombe and Merrylands Properties. She paid other expenses, such as council and water rates, and the family's electricity bills. Ms Ak-Tankiz also says that she provided substantial personal care and assistance to her mother during a long period of sickness that preceded her death.

It seems that Ms Ak-Tankiz accepts that, at least at the outset, she contributed her earnings to the family's needs at the request of, and out of respect for, her father, and out of love and affection and filial duty. However, she says that over time her siblings did not make any contributions, and in due course they each left the family home. The burden increasingly fell upon Ms Ak-Tankiz. She says that, from soon after the Lidcombe Property was purchased, both her mother and her father made promises to her, that were repeated from time to time, that Ms Ak-Tankiz would receive a greater proportion of the family home under the wills of her parents than would her siblings, in recognition of her disproportionate monetary contribution to the needs of the family. She says that she continued to devote a substantial proportion of her income, over a period of some 30 years, in reliance upon the promises made to her by her parents, to the needs of the family, and in particular her parents.

Following the death of her mother, and a period in which Ms Ak-Tankiz had lived with her second husband at the Merrylands Property, her relationship with her father broke down following her request for confirmation that she would be left half of the property in Mr Ak's will, and his response that he would leave all of his property to his four children equally.

Mr Ak flatly denies that he ever made any promise to his daughter that he would leave her a greater share of his property than his other children. He does not, as I understand his defence, deny that at least most of the mortgage and rent payments, and at least a substantial part of the cost of the renovation of the two properties that he owned with his wife, as well as various other payments, were paid with money from Ms Ak-Tankiz's bank account. Mr Ak says, however, that he also worked in Ms Ak-Tankiz's sewing business, operating the sewing machines for a period of some 22 years full time, and that he did so without pay or other financial reward. He therefore says that many of the payments of the family's financial obligations were funded from the fruits of his own labour. He also says that his, and his wife's, pension receipts were also used to fund family expenses, such as food, and various other bills. He says that Ms Ak-Tankiz was given free board, and permitted to conduct her business from the family's home without paying any rent. Mr Ak says that he also provided other services to Ms Ak-Tankiz's business, such as by using his car for the purpose of transporting materials and finished garments.

The constructive trust claim made by Ms Ak-Tankiz

Ms Ak-Tankiz has put her constructive trust claim on two different grounds; the first being what is sometimes called a "joint endeavour trust", and the second being a "common intention trust". She claims that Mr Ak holds the whole of the title to the Property on trust for her, or, in the alternative, in some other proportion, which, in light of the manner in which her case was conducted, is one half.

The first type of trust asserted by Ms Ak-Tankiz, the joint endeavour trust, is put on the principles established by the High Court in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137. I am indebted to the discussion of these principles in the judgment of Ward J (as her Honour then was) in Austin v Hornby [2011] NSWSC 1059 at [143] -145] and [152] -[159]. For the purposes of the present case, her Honour's observations in [154] and [159] are pertinent:

[154] In Little v Saunders [2004] NSWSC 655, Campbell J (as his Honour then was) said (at [41]):

However, the fundamental matter which guides equity in deciding whether there is a constructive trust in this area, is whether the property would come to be enjoyed by a party in circumstances in which it was not specifically intended or specifically provided that the other party should so enjoy it.

...

[159] In West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 Campbell J (as his Honour then was) considered what was to be established before such a constructive trust could be imposed: first, that there be both a joint relationship or endeavour, in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired (noting that the scope of the joint-venture in which the parties were engaged may be of relevance and as Deane J in Muschinski considered, may change from time to time); second, that the substratum of that joint relationship or endeavour must have been removed or the joint endeavour prematurely terminated "without attributable blame"; and, third, that there must be the requisite element of unconscionability (namely, that it would be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour).

Ward J also considered the circumstances in which a common intention constructive trust will arise at [146] -[150]. At [147] her Honour set out the following statement of principle by White J in Shepherd v Doolan [2005] NSWSC 42 at [43]:

Where a constructive trust is imposed, based upon the parties' common intention as to the ownership of property upon which the claimant has acted to his or her detriment, the inquiry is as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue. (Pettitt v Pettitt [1970] AC 777 at 804, 810 and 816-817; Gissing v Gissing [1971] AC 886 at 900, 902 and 905-909; Allen v Snyder [1977] 2 NSWLR 685 at 690, 698 and 701). (My emphasis).

Her Honour also relied upon the following statement of principle by Gleeson CJ (with whom Priestley JA agreed) in Green v Green (1989) 17 NSWLR 343 at [357].

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

As noted by Ward J at [150]:

The quantum of the claimant's beneficial interest is that which the parties agreed or intended. However, where the parties did not turn their minds to the particular form of the title that they intended to have the court can impose a constructive trust which best gives effect to the intentions of the parties (White J noting Green v Green and Parianos v Melluish (Trustee) ( [2003] FCA 190; (2003) 30 Fam LR 524 in this regard).

It is possible that the facts of a particular case may justify the imposition of a constructive trust on both of these grounds, but in other cases it may appear that one is more apt than the other. That was the case in Austin v Hornby. In the present case it is necessary to consider Ms Ak-Tankiz's pleadings, and the material aspects of her evidence, to determine whether her claim is in reality put on one basis rather than the other.

That Ms Ak-Tankiz is claiming an entitlement to the property under a joint endeavour trust clearly appears from par 50 of her amended statement of claim, where she pleads:

In the premises of the paragraphs 1-49, above:

(a) The plaintiff in the period 1979-March 2010 expended substantial funds in pursuit of the Joint Endeavour;

(b) the Joint Endeavour has failed without attributable blame; and

(c) It would be unconscionable for the defendant to be permitted to hold the legal title to the Property to the exclusion of any interest of the plaintiff; and

(d) The defendant holds the Property on constructive trust for the plaintiff, or alternatively for himself and the plaintiff.

The Joint Endeavour referred to in par 50 is defined in par 19 in the following terms:

From the time the plaintiff left school and commenced work (or alternatively from the time the defendant ceased work in 1979) until January 2010, it was the Plaintiff, the defendant and Mrs Ak's common intention and/or understanding that ("the Joint Endeavour"):

(a) the defendant, Mrs Ak and, for such time as was appropriate, their children, would live together in a residential house; and

(b) the plaintiff, but not the defendant or Mrs Ak, would be the income earner providing financial support for the Ak family; and

(c) the plaintiff's earnings would be used to provide financial support for the Ak family, including by making mortgage repayments and paying for necessary household expenditure and improvements to the residential house.

Ms Ak-Tankiz pleaded in par 22:

Shortly after the purchase of the Lidcombe Property, the defendant said to the plaintiff words to the effect that, because she was making mortgage repayments and paying for the renovations to the Lidcombe Property, that commenced soon after purchase, after he and Mrs Ak died, she would have a half share of their residential home ("the Promise").

It will be convenient to use the expression, "the Promise", as pleaded by Ms Ak-Tankiz, to describe the statements of Mr Ak, and his wife, as to their intended testamentary disposition of their residential property from time to time.

Paragraph 24 contains allegations that Mr Ak repeated the substance of the Promise to the plaintiff from time to time, that Mr Ak did not qualify or retract the Promise in any way, and that he was aware that Ms Ak-Tankiz believed the Promise, and allowed her earnings to be spent in the manner alleged in reliance on the Promise and its repetitions and in furtherance of the Joint Endeavour. Ms Ak-Tankiz makes allegations in pars 27 and 37 that she expended moneys on the properties occupied by the family "in furtherance of the Joint Endeavour and in reliance on the Promise".

Ms Ak-Tankiz alleges in pars 47 and 48 that, after the death of her mother, she asked Mr Ak whether he was going to make a will with a provision leaving 50% of the Merrylands Property to the plaintiff and the remainder to his other children, and Mr Ak responded that he would not give her anything.

So far as Ms Ak-Tankiz's common intention trust claim is concerned, it appears that she claims that Mr Ak first made a promise to her shortly after the Lidcombe Property was acquired. She does not claim that her entitlement to the benefit of a constructive trust existed when the property was purchased, but relies upon the making and repeating of the Promise on numerous occasions after that time. In Shepherd v Doolan White J at [45] considered the circumstances in which changes may occur to the proprietary interests of the parties after the property was acquired, in the following terms:

However, if there are to be changes to the proprietary interests of the parties after the property was acquired, the changes must occur according to the same principles as those upon which a constructive trust may arise for the first time. (Pettitt v Pettitt at 816). Where the parties make continuing but different contributions to the maintenance and improvement of the property, I do not accept that the beneficial interests which arose on acquisition of the property are changed merely because the parties later make disproportionate contributions of that kind. If the parties agreed or intended that they should vary their beneficial interest in the property, and one party acted to his detriment, then their beneficial interests could change during the course of the relationship. It may be possible to infer such an agreement or intention from what the parties did as well as what they said. The parties' later conduct may also provide a basis for inferring their intentions at the time the property was acquired. It might also be inferred that the parties intended at the time the property was acquired that their respective beneficial shares would be left to be determined at a future date, e.g. when the property is sold, based on their contributions at that time. (Gissing v Gissing at 909 per Lord Diplock; Burns v Burns per Fox LJ at 327).

Thus, a common intention constructive trust may spring up after the acquisition of the property, if the evidence establishes that a relevant common intention was formed at some later time. The nature of the common intention may also change from time to time, but change will not be established merely from proof of proportionate changes in the contributions made by the parties.

A feature of the common intention alleged by Ms Ak-Tankiz in the present case is that she was not promised an immediate beneficial interest in any of the properties; rather, she was promised that she would receive via her parents' wills a greater share of the family property owned at the time of their deaths than her siblings. In Saliba v Tarma [2009] NSWSC 581 Nicholas J was concerned with a case where a deceased person during her life had stated her intention, in the presence of the plaintiffs, to leave half her property to them, and then made a will that included a provision to that effect, made the plaintiffs' son the executor, and gave the son a copy of the will. The plaintiffs thereafter provided considerable continuing care for the deceased, partly out of friendship, but also out of a sense of obligation or duty towards her in return for the inheritance that they had been promised. Nicholas J found that the statements made by the deceased prior to making her will, and the terms of the provision contained in the will, were direct evidence of an express common intention that the plaintiffs would be given a half share of the property.

After the death of the deceased it was discovered that the deceased had made a new will under which the plaintiffs only received small legacies, and the balance of her estate was left to certain relatives. Nicholas J found that the plaintiffs had established that they were entitled to a beneficial interest in half of the deceased's estate by way of a constructive trust, based upon the common intention of the plaintiffs and the deceased, on the principles considered in Green v Green ([48], [49]).

Nicholas J also found for the plaintiffs on the basis of an equitable estoppel claim ([52]-[55]). In Dable v Peisley [2009] NSWSC 772 at [24] Ward J (as her Honour then was) distinguished Saliba v Tarmo, in so far as Nicholas J had found a case based upon equitable estoppel established, on the ground that the plaintiffs had not established that they relied upon the assurances that they alleged had been made to them. Her Honour did not express any doubt about Nicholas J's reasoning in respect of the constructive trust claim, which is an issue that did not arise before Ward J.

In the present, case the promises that Ms Ak-Tankiz alleges were made to her by her parents apparently related to the particular house owned by her parents at the time each of the Promises was made. The same was the case in Saliba v Tarmo where the promise also related to the deceased's house. However, in the present case the constructive trust issue has not arisen because the promise was not implemented in Mr Ak's will, but because he has during his lifetime refused to make a will in conformity with his alleged promises.

It will be necessary to consider the evidence, and make appropriate findings of fact, before Ms Ak-Tankiz's entitlement to the constructive trust relief that she has claimed can be determined. I will defer any consideration of Ms Ak-Tankiz's claim under the Act until I have dealt with the constructive trust issue.

Credibility of witnesses

On a number of crucial issues there is a chasm between the evidence given by Ms Ak-Tankiz, and the evidence given by and on behalf of Mr Ak, concerning the facts that are material to Ms Ak-Tankiz's claim. On these issues there is little scope for any common ground between the witnesses, and the court is forced to decide which party's evidence should be accepted, and which should not. It will be convenient to address this issue now, although a consequence of this approach will be that matters of fact relevant to credibility must be considered before the facts are investigated.

The principal evidentiary conflicts that require resolution are whether or not Mr Ak made the Promises alleged by Ms Ak-Tankiz, and whether or not Mr Ak worked in Ms Ak-Tankiz's sewing business in the substantial way that he alleges. There are other less significant conflicts in the evidence given by the various witnesses, many of which do not require resolution, and will be mentioned below in relation to the issues raised by the parties that have not required resolution.

Ms Ak-Tankiz gave her evidence in English. I found that the manner in which she gave her evidence, and responded to questions in cross-examination, generally was satisfactory. Perhaps, with due respect, because of the context in which her parents apparently only spoke Turkish, and her limited formal education, Ms Ak-Tankiz's command of English was not as adept as a natural English speaker. However, she was able to understand and express herself in a satisfactory manner, and I formed the impression that she gave her evidence from genuine memory, and tried to do so truthfully.

Ms Ak-Tankiz's evidence remained substantially intact at the end of her cross-examination. The only significant exception concerned the evidence that she gave in chief that her sister, Arife, was paid directly by Ms Ak-Tankiz's clients by cheque during the initial period that Arife worked in the sewing business between 1980 and 1986, rather than by Ms Ak-Tankiz out of moneys received from her clients. As it is relevant to an understanding of this issue, I should record at this point that Ms Ak-Tankiz recorded the financial details of her sewing business in a red Collins 7 money column book (Exhibit A). It will be convenient to call this book the "red book". She was advised by an accountant to record these financial details for income tax purposes. The red book covers the period from July 1982 to February 2014 (with some years missing because of the removal of the relevant pages). During her cross-examination, however, Ms Ak-Tankiz resiled from this evidence, when she noted that for the years 1982 to 1984 the red book contained a column headed "wages", which Ms Ak-Tankiz acknowledged related to an expense item that consisted of payments to Arife, which must have been payments made by Ms Ak-Tankiz herself. She identified a pencil entry, apparently in her own handwriting on page 28 of the red book, which said "Arife pay $9083.75". In the context of the cross examination it seems that Ms Ak-Tankiz first understood, from her perusal of the red book, that she had not paid wages to Arife herself, because Arife was not identified by name in the red book. However, during the course of looking at the red book in the witness box, she noticed the reference to "wages", and realised that the only recipient of the wages could have been Arife. She therefore voluntarily changed her evidence.

Later, Ms Ak-Tankiz freely accepted that Schedule D to her affidavit, which contained a list of her annual income from the sewing business, for the years for which the source of the information was the red book, must be wrong, because the amounts given as her income did not make allowance for the payment of wages to Arife. Ms Ak-Tankiz said that her error related to the period when her principal client was the firm known as Dolly Dolly, and not the later period when she mainly worked for Julius Paipai. She also said that the error in her income did not extend to the years the subject of Schedule E to her affidavit, where the income was taken from her income tax returns.

I consider this error on Ms Ak-Tankiz's part to be a product of the passing of time, and the relatively rudimentary way in which the red book was compiled. It has not caused me to form any significant doubt about the honesty of Ms Ak-Tankiz's evidence, or its general reliability.

Mr Ak does not understand or speak English with sufficient competence to give his evidence in that language. His evidence was given through a Turkish interpreter. As would be expected given the time that Mr Ak has lived in Australia, he has some command of the language. Occasionally he gave a response in English to a question asked of him in cross-examination, before his interpreter could fully interpret the question. The responses tended to confirm the impression that Mr Ak's command of English is limited.

It can be difficult to form a reliable opinion as to the demeanour of a witness, or the credibility of the evidence given by a witness, where the witness's responses may be coloured by a culture other than the historically predominant Anglo-Celtic culture, and where the cross-examination must take place through an interpreter. In Mr Ak's case I formed the view that it would be inappropriate, and perhaps unreliable, for me to form any view based upon his demeanour. I have limited my determination of the weight that I can place on his evidence to a consideration of the objective meaning of his responses to questions in cross-examination, and the probabilities that may be deduced from the objective circumstances.

Mr Ak gave some evidence in cross-examination that significantly undermined his credibility.

He was asked questions about his application to RAMS Home Loans on 13 April 2004, for a loan of $170,000 (T 175 - 178). The application became Exhibit C. Mr Ak agreed that he signed the application. It contained a statement that Mr Ak had been self-employed in his current role as a "sole trader" for 10 years and nine months, and his current gross income was $55,000 per annum. Mr Ak admitted that this information was false.

Mr Ak also admitted that his evidence in par 21 of his affidavit, that he bought an industrial sewing machine for his daughter out of his compensation payment was false (T 183.35). He stated in crossexamination that he in fact bought the machine at a later time.

Mr Ak also agreed (T 187.40) that he accepted an early settlement of his workers compensation claim because he had been caught doing physical work by an insurance photographer. His capacity to perform the work was inconsistent with the basis of his compensation claim.

In pars 39 and 52 of his defence Mr Ak first denied allegations made by Ms Ak-Tankiz, in pars 27(a) and 37(a) of her further amended statement of claim, that she made the mortgage payments in relation to the Lidcombe and Merrylands Properties, but went on to allege that the payments were made out of Ms Ak-Tankiz's bank account, and then added that some of the money in that account was attributable to unpaid work done by Mr Ak. In cross-examination, however, Mr Ak denied outright that Ms Ak-Tankiz had made the mortgage payments (T 188.15). Later it was put to Mr Ak that he allowed his daughter to pay the entirety of the property mortgages and that he contributed nothing. Mr Ak responded by saying (T 198.5): "Okay, my pension payment was only enough to meet the cost of food and household expenses."

Mr Ak claimed in cross-examination (T 202.30) that he contributed to the payment of the mortgage on the Lidcombe Property out of money received from factory and carpentry work, but he did not give evidence of undertaking that work in his affidavit, when it was plainly relevant that he do so.

Mr Ak also claimed that for 22 years he worked full time as a machinist in Ms Ak-Tankiz's sewing business without any pay. I will address this issue fully below in the context of considering the contributions made by Mr Ak to the acquisition and improvement of the family's homes, and the sustenance of the family over the period up to when Ms Ak-Tankiz left the family home permanently in 2010. It should be recorded here, however, that I have rejected Mr Ak's claim. The making of the claim in the circumstances severely undermined the credibility of the balance of the evidence given by Mr Ak.

Mr Ak's children, Arife and Ramazan, both gave their evidence in English. Both of these witnesses have been living with Mr Ak at the Merrylands Property for some time with their children. Arife is in receipt of a carers' pension for the care that she gives to Mr Ak. Both witnesses absolutely supported the claim made by Mr Ak that he worked in Ms Ak-Tankiz's sewing business full time, at least for the substantial periods that each witness was living in the family home, or able to visit the home frequently. The witnesses were not in a position to corroborate Mr Ak's claim that he worked for no pay, and they did not do so. Both witnesses were crossexamined, but the forensic reality was that this crucial aspect of the evidence depended upon the word of Ms Ak-Tankiz, against the word of her father and siblings. Mr Carney did not have the advantage of any objective grounds for controverting the evidence given by the witnesses. While the plain purpose of the witnesses' evidence was to corroborate Mr Ak's claim by providing eyewitness support, in my judgment the purpose failed. The essential reason why it failed was that Mr Ak's evidence was so extreme, and inherently incredible, and inconsistent with the probabilities derived from the objective circumstances, that rather than corroborate Mr Ak's evidence, the witnesses instead simply bound themselves to Mr Ak's fatally flawed position.

Arife claimed in her affidavit (par 10) that, for the whole of the period that she helped Ms Ak-Tankiz at the Lidcombe Property, she never received any salary or pay from her, nor did she receive any cash or cheques of any kind from any other person (save for occasional payments of small amounts of pocket money). In cross-examination Arife initially denied that she had ever received any pay or salary from her sister (T 276.27 - 277.7). However, when she was questioned about the contents of the red book, she appeared readily to agree that she received substantial sums from Ms Ak-Tankiz in the years 1982 to 1984, and 1992 to 1996 (T 277.22 - 278.25). Her final position was that she had been paid for the years 1992 to 1996, but not for the period 1980 to 1986 (T 278.33).

In my judgment Arife and Ramazan consciously decided to take their father's part in this family dispute, following the collapse of the personal relationship between Mr Ak and his daughter, Ms Ak-Tankiz. Both witnesses remain part of Mr Ak's intimate family, and live in his home, and care for him. I have concluded that filial loyalty has overwhelmed the obligation of Arife and Ramazan and to tell the objective truth.

Did the Joint Endeavour exist?

In my judgment a Joint Endeavour generally in the form of that pleaded by Ms Ak-Tankiz did develop early after she left school, and continued to subsist until Ms Ak-Tankiz left the Property in 2010, after the collapse of her relationship with her father.

The evidence of what actually happened during this period is highly consistent with the development of an understanding, at least as between Ms Ak-Tankiz and her parents, that the family could not comfortably survive on the disability pensions of the parents, and that Ms Ak-Tankiz would have to devote a substantial proportion of her income to providing and maintaining a home for the family, and assisting with family expenses. In part this arrangement developed because Mr Ak exerted his authority as the father in a patriarchal family setting, but it was also fostered by discussions between Mr Ak and Ms Ak-Tankiz from time to time as to the need for her to contribute from her income to satisfying the needs of the family.

It is important to note, however, that a feature of the Joint Endeavour that Ms Ak-Tankiz pleads in par 19(a) of her amended statement of claim is that the arrangement was that the parents and their children would live together in a residential house for such time as was appropriate. The Joint Endeavour that Ms Ak-Tankiz alleges was not one that was expected by its parties to endure indefinitely. Ms Ak-Tankiz did not allege that the Joint Endeavour gave rise to an expectation by her that she could live in the family home indefinitely. As I understand it, the reference to the duration of cohabitation being "appropriate" involves an acceptance that, in the ordinary course, a time would come when the children would grow up and leave the home of their own volition, in order to make their own way in life. Ms Ak-Tankiz herself, when she first married in 1985, moved out of the house to live with her husband. Had that marriage survived, Ms Ak-Tankiz may never have returned to live with her parents. The point of these observations is that the terms of the Joint Endeavour, as pleaded, properly reflect the reality that in the ordinary course children will leave the family home when they grow up.

It will be necessary to return to this issue, when the validity of Ms Ak-Tankiz's constructive trust claim is considered. The issue is of particular relevance to the joint endeavour trust claim that Ms Ak-Tankiz has made. The existence of a trust of that kind depends upon the substratum of the joint endeavour being removed, without the attributable blame of the parties, in a way that has the consequence that it would be unconscionable for one of the parties to retain the whole of the benefit of the joint endeavour. In the light of the precise form of the Joint Endeavour alleged by Ms Ak-Tankiz, it may not be unconscionable for the parents to retain ownership of the family home when their children, at appropriate times, leave home.

Were Promises made, and if so what form did they take?

In her affidavit in chief sworn on 23 April 2013 Ms Ak-Tankiz says in par 39 that, after the purchase of the Lidcombe Property in 1979, when she started making mortgage payments, Mr Ak said: "Look Aytul, I am going to leave the house to you in my will. You have been making the mortgage repayments and also paying for the renovations". She says that her father then said: "I trust you, you're a responsible person. You can keep half the house and apportion the balance between Arife, Ramazan and Ufuk". Ms Ak-Tankiz said that she agreed with this arrangement. If this arrangement had been implemented, Ms Ak-Tankiz would have been given the whole of the house in Mr Ak's will, but only on the basis that she would divide half between her siblings.

Ms Ak-Tankiz also gives evidence, in par 46, that in about 1986, at the time Ramazan left home, Mr Ak said: "I promise you that when we pass away you can have half the house". That statement, if made, was made when the family was still living in the Lidcombe Property.

The only evidence that Ms Ak-Tankiz gave of a promise made by her father, when the parties were living in the Merrylands Property, is found in pars 131 and 169. First, Ms Ak-Tankiz says, that in about August 2003, when the parties were in Turkey, her father said in relation to the proceeds of sale of the home unit that Ms Ak-Tankiz owned in Turkey: "Aytul, we can use the money on the Merrylands property. I promised you I will be leaving the house to you. You are going to live in that house". Ms Ak-Tankiz claims (par 133) that she executed a power of attorney that authorised her uncle, Mr Ak's brother, to sell the home unit acting in reliance upon Mr Ak's promise.

Secondly, she says that in 2004, in the context of her reminding her father that he and her mother had not made wills, Mr Ak said: "I am giving you half the house Aytul. I will tell Ramazan to organise a meeting with [Mr Ak's solicitor] to make my will". Ms Ak-Tankiz gave evidence that she observed steps taken for Mr Ak's will to be prepared, but she did not read the instructions that her father wrote out in Turkish concerning the contents of his will. There is no direct evidence as to whether any will was executed at the time by Mr Ak, and the will, if executed, is not in evidence.

Mr Ak acknowledged in his affidavit that Mrs Ak "could even write her own will in 2004" in the context of his trying to establish that his wife remained reasonably physically competent to that date. Mr Ak did not put the will into evidence, or explain its whereabouts. He did tender a will that his wife executed on 15 May 2009, in which she left her estate to Mr Ak, or if he predeceased her, to her four children in equal shares.

Ms Ak-Tankiz pleads, in par 24 of her amended statement of claim, that Mr Ak repeated the substance of the Promise to her from time to time (thereby implying that promises were made to her with some regularity), but she only gave evidence of promises being made on 4 occasions, only 2 of which were made after the purchase of the Merrylands Property. Those promises were made, so it is alleged, in 2003 and 2004, some 6 or 7 or so years after the property was acquired.

The evidence gives rise to a question about whether, even if the promises were made as alleged, they were made with sufficient seriousness, or regularity, and expressly or by implication in relation to the Merrylands Property, to provide the basis for a finding that Mr Ak holds the Merrylands Property on a constructive trust for Ms Ak-Tankiz. I also bear in mind the importance of the warning given by McLelland CJ in Equity, in a different context, in Watson v Foxman (1999-2000) 49 NSWLR 315 at 318-390, of the need for the court to be reasonably satisfied by the evidence before making findings as to the terms of conversations, particularly when they have occurred in the distant past, when objective corroboration is not available.

I have concluded, on the balance of probabilities, that Mr Ak did from time to time, in a serious manner that was intended by him to be acted upon by Ms Ak-Tankiz, assure her that he would make a special provision in his will that she would receive half of the family home after his death.

I make that finding partly on the basis that I accept Ms Ak-Tankiz's evidence to that effect, and I reject Mr Ak's denial.

Ms Ak-Tankiz's claim in the present case does not rest upon a single conversation, but is based upon a number of statements made by her father over the 30-year period that Ms Ak-Tankiz contributed from her income to the family's welfare. I therefore conclude that the problem raised by McLelland CJ in Equity is less acute in the present case, than if the claim was based on a single conversation.

The probabilities are in my view consistent with the conclusion that Ms Ak-Tankiz persisted, over a period as long as 30 years, in paying most of her income for the benefit of her family, and particularly her father and mother in relation to the ownership of the family home, in the belief that she would get some return for her labours and her contributions in the form of a greater share in the family home than her siblings upon the death of her parents. No doubt, particularly at the beginning, the unusually generous contributions that Ms Ak-Tankiz made could be explained by love and affection and filial duty, but as time went on, and her siblings did not substantially contribute, it is highly doubtful that any daughter would continue with contributions at the level made by Ms Ak-Tankiz, without a belief that she would enjoy a special return at least in some measure commensurate with her contributions.

I find that, although the Promises that Mr Ak made from time to time were expressed in relation to the particular home in which the family was living at that time, the meaning conveyed and intended by the Promises was that Ms Ak-Tankiz would be left a greater interest in the family home owned by her parents at the time of their deaths. The form in which the Promises were made did not specifically address the possibility that the parents may sell the family home, and not replace it by a new property owned by them. I find that it was a very significant matter to the parents that they continue to own their own home, and that is reflected in their long struggle, since the time that the Lidcombe Property was first purchased, to ensure that they had the security of home ownership. Mr Ak never intended to sell the family home, but rather intended that he and his wife would live in the home, or a replacement home owned by them, until their deaths. That is the explanation why neither Mr Ak nor Ms Ak-Tankiz turned their minds to the possibility that the family home would be sold, and not replaced, in the context of the making of the Promises.

It is reasonably clear that, at least in respect of any promises made by Mr Ak, Ms Ak-Tankiz only pleaded that he promised that she would receive half of the house in his will. The evidence given by Ms Ak-Tankiz is also on balance consistent with her receiving a half interest in the Property. Only the statement attributed to Mr Ak in 2003 suggests that Ms Ak-Tankiz might receive the whole of the Property.

Ms Ak-Tankiz also gave evidence, without objection, about promises made to her by her mother. She said (par 47) that in 1986, when Mr Ak made the promise to her referred to above, Mrs Ak said: "I promise that I will leave the house to you when I pass away". She also said (par 93) that in 1990 her mother said: "I am giving this house to you as I promised when I die". Finally, Ms Ak-Tankiz said (par 172) that, at the time her parents gave instructions for the preparation of their wills, she read the written instruction prepared by her mother and saw that it included: "... I give to my daughter Aytul my share of my house".

The significance of the evidence of the statements attributed to Mrs Ak is that, in her final oral and written submissions, Ms Ak-Tankiz claimed that, as well as the evidence justifying a finding that Mr Ak held the Merrylands Property on a constructive trust for her as to half, it went further and justified a finding that Ms Ak-Tankiz was beneficially entitled to the whole of the property. The submission was put on an equivocal basis. It was said in oral submissions (at T 294): "Your honour could look at it in two different ways without the plaintiff having to nail her colours to the mast". She also submitted in writing (par 16): "It could also be construed that she would receive whatever share the parents had when they passed away, that is she would receive the whole interest upon the passing of both her parents".

I reject Ms Ak-Tankiz's claim that, assuming Mr Ak holds the Merrylands Property on a constructive trust for her, the trust is as to the entirety of the interest in the property, because Promises were made to her by both of her parents in relation to their respective half shares in the Property. That claim is inconsistent with Ms Ak-Tankiz's pleading. It is inconsistent with the Promises made by Mr Ak as stated in Ms Ak-Tankiz's evidence. The Merrylands Property was acquired by Mr Ak and his wife as joint tenants. Upon her death Mr Ak became entitled to the whole of the property by survivorship. Not only does Ms Ak-Tankiz's amended statement of claim not plead any entitlement based upon any promise allegedly made by Mrs Ak, but it does not deal with how the making of any such promise may have affected the joint tenancy. It does not allege a basis for Mr Ak, as the survivor, being liable for any promises made by his wife. It does not make any claim against the estate of Mrs Ak. Mr Carney's "ultimate submission" that his client is entitled to the whole of the property on this basis must be rejected.

Contributions to the Joint Endeavour by Ms Ak-Tankiz

Ms Ak-Tankiz's case is that, from very shortly after the purchase of the Lidcombe Property, when Mr Ak became dependent upon a disability pension, she paid almost the entirety of the mortgage payments on both the Lidcombe and Merrylands Properties, the rent on the Granville Property, most of the costs of renovating and repairing both properties, as well as other family expenses, such as electricity bills and car repayments, and occasional family holidays such as trips to Turkey.

An important forensic aspect of the dispute arises out of the way that Ms Ak-Tankiz pleads the contributions that she made, and Mr Ak responds in his defence. In her amended statement of claim Ms Ak-Tankiz pleads that she paid all of the mortgage payments, local council rates and charges, electricity and telephone bills, and other expenses for the Lidcombe Property (par 27); she paid the deposit of $16,500 for the purchase of the Merrylands Property (par 29); she paid the legal fees and disbursements on that purchase (par 30); she paid all of the rent for the occupation of the Granville Property (par 35); and she paid the mortgage, local council rates and charges, electricity and telephone bills, the car loan, and other renovation and repair expenses in relation to the Merrylands Property (par 37). Mr Ak responds in his defence in substantially the same way in relation to each of these allegations. He denies the allegations as made, and then says that the payments were made out of Ms ATankiz's bank account "which included unpaid wages of [Mr Ak]" (see pars 39, 41, 43, 50 and 52). The responses are not precisely the same in each case, but in substance Mr Ak acknowledges that the relevant payments were in fact made by Ms Ak-Tankiz out of her account, but claims that the money in the account should in part be attributed to unpaid work done by him. He also alleges (particularly par 52 of his defence) that Ms Ak-Tankiz was able to make the payments because she was not required to pay board or rent for the use of the part of the family home from which she conducted her business as a seamstress.

Ms Ak-Tankiz provided considerable documentary evidence to prove directly that she made the payments alleged, and in order to quantify the amount of the contributions that she made. It will be necessary to consider that evidence below.

However, for the reasons that have just been explained Mr Ak did not put in issue that Ms Ak-Tankiz paid substantially all of the payments that she claims to have made out of her bank account, which contained the proceeds of the operation of her business as a seamstress.

Ms Ak-Tankiz tendered evidence directed to proving in precise money terms the value of the contributions that she made to the family, and the amount of income that she earned from her sewing business. In particular, she sought to quantify her income in the periods 1979 to 1986 and 1987 to 2010; the amount of the mortgage payments she made in relation to the Merrylands Property, the amount of the rental payments made while the family was living at Granville; the amount of the electricity bills she paid in respect of the three properties; renovation and improvement expenses for the Lidcombe and Merrylands Properties; and various other specific payments. Ms Ak-Tankiz gave evidence that she made all of the mortgage payments for the Lidcombe Property, but she appears not to have attempted to quantify those payments by direct evidence.

It will be convenient to deal first with the evidence of Ms Ak-Tankiz's income. She included a list of her annual income for the period 1979 to 1986 in Schedule D to her affidavit, and a list for the period 1987 to 2010 in Schedule E. Ms Ak-Tankiz's income is substantially proved by information in the red book, which is a business record, and by copies of her annual tax assessments, which were included as an addendum to Schedule E.

It is not clear, however, to what use Ms Ak-Tankiz seeks to put the evidence of her annual income over the period. Mr Carney did not base any specific submissions on the amount of her income. It is not clear whether the evidence was intended to prove that her income was sufficient to make the contributions that she claims to have made, or whether her purpose was to show that her contributions formed a substantial proportion of her income. In order to make either of these submissions good, the evidence of the total amount of the contributions would have to be clear and precise. Unfortunately, it was not.

Ms Ak-Tankiz sought to prove the amount of her mortgage and rent payments by including Schedule O (Granville rent) and Schedules Q and Z (Merrylands mortgage payments to Westpac Banking Corporation and RAMS Home Loans respectively). Schedule O contains a list of dates, cheque numbers and amounts, with a total of $16,060. Schedule Q contains a page with a list of years from 1997 to 2004. The Court Book contains a tab marked "SCHE Q". Behind that tab is a series of Westpac Banking Corporation statements for Ms Ak-Tankiz's account for a period from November 1997 to December 2004. The bank statements from the period November 1997 to January 2004 contain references to the payment of cheques in the sum of $440 at regular intervals. The statements bear the hand written reference "rent" against these payments. It therefore appears that these documents were intended to support the claim for the amount of the rent paid by Ms Ak-Tankiz, so that the tab reference is partly misdescribed. Mr Ak admitted in cross-examination that Ms Ak-Tankiz paid the rent for the Granville Property (T 206.22). The balance of the bank statements in "SCHE Q" are apparently intended to establish the amount of the mortgage payments made by Ms Ak-Tankiz to Westpac in relation to the Merrylands Property. Unfortunately, there is no indication on the bank statements at all that particular payments related to the mortgage. It would be entirely a matter of guesswork to attempt to identify mortgage payments. The affidavit does not even include a list of the payments that Ms Ak-Tankiz claims were mortgage payments made to Westpac. Schedule Z is described as "List of Westpac bank statements indicating direct debit mortgage repayments made". Schedule Z itself is nothing more than a list of statement numbers 186 to 234. The schedule does not contain any information about dates or amounts paid to RAMS. Unlike the position in relation to Schedule Q, the Court Book contains no copies of Westpac bank statements for the period covered by Schedule Z. There is no evidence to prove the making of direct debit mortgage payments to RAMS. The evidence entirely fails to prove the amount of the mortgage payments in precise terms.

Mr Baskerville reasonably objected to Ms Ak-Tankiz's attempt to prove the amount of her various contributions by simply swearing that she had made the payments and then annexing a schedule that contained a list of purported payments (in the absence of any documentary proof). This objection applied to other categories of payment that were only supported by lists.

It is often advantageous for the purpose of simplifying the presentation of the evidence in support of a case that requires proof of numerous specific payments that a party will include in its evidence a list of the payments prepared in a convenient form. However, unless there are relatively few payments that have been made relatively recently, evidence that simply takes the form: "On date X I paid $Y" is likely either to be inadmissible or unpersuasive. A list of a large number of payments made over a considerable period, or a long time in the past, is likely to be inadmissible, and will usually be unpersuasive. The party with the burden of proving the payments should include in the tender documentary evidence where that is available, or prove that it is not available, and then carefully give the best evidence possible for the amount and time of the payments. An alternative course may be to provide the opposing party with the supporting documentary evidence before the commencement of the hearing, so that the opposing party has a proper opportunity to verify the information contained in the list.

That did not occur in the present case, and throughout the hearing there was some dissension about whether Ms Ak-Tankiz should be permitted to tender lists. I gave Mr Carney an opportunity to revise the lists upon which Ms Ak-Tankiz wished to rely, and to provide Mr Baskerville with supporting documentation so that, to the extent possible, agreed lists could be put into evidence, and genuine areas of dispute identified. That exercise miscarried and was not completed by the end of submissions. It continued by email between the solicitors for the parties and my associate after the hearing. There is no point in my attempting to describe the results of those communications in any detail. The communications only increased the amount of disputation between the parties, and I frankly cannot decipher the effect of the communications, or the additional schedules that were attached.

I should note at this point that, after the completion of submissions, Ms AkTankiz's solicitor forwarded to my associate a replacement Schedule 5, which was claimed to establish the amount of mortgage payments made by Ms Ak-Tankiz for the period November 1988 to February 1991 by reference to information contained in the red book. Unfortunately, a review of the red book shows that all of the payments listed in Schedule 5 were placed in a column headed "Others". Nothing in the red book by itself assists in establishing that the entries related to mortgage payments. In his written submissions Mr Carney submitted that it could be deduced from the information in his Schedule 5, and evidence given by Ms Ak-Tankiz as to the amount of the mortgage payments that she made in respect of the Lidcombe Property, that Ms Ak-Tankiz made all of the payments. As Schedule 5 does not have the evidentiary effect claimed by Mr Carney, his submission should be rejected.

For the record I have had a copy of the communications and attachments that were received after the conclusion of the hearing made, and I have caused that copy to be marked for identification MFI 4 in chambers, and placed on the file.

I propose to proceed to determine the issues in the case upon the basis of the evidence that was tendered at the hearing. That course will in my view permit a just and proper determination of the issues.

The first reason is, as noted above, Ms Ak-Tankiz pleaded that she made mortgage and other payments in relation to the various properties. In each case Mr Ak's response was in substantially the same form. In the one sentence he denied the allegation but then specifically alleged that the funds to make the relevant payments came from the bank account held in Ms Ak-Tankiz's name, but which, he alleged, included unpaid wages for Mr Ak's work operating the sewing machines. I interpret Mr Ak's pleading as containing admissions that the relevant payments were made out of Ms Ak-Tankiz's bank account. That circumstance does not assist Ms Ak-Tankiz to prove the amount of the payments that she made, except in the cases where she pleaded the amount in her amended statement of claim. However, proof of the total amount of some of the payments may not ultimately be necessary for the purpose of determining Ms Ak-Tankiz's entitlement to relief.

As I have noted above in the context of considering the credibility of Mr Ak's evidence, it is my view that in cross-examination he conceded that Ms Ak-Tankiz made all of the mortgage payments, or at least almost all of those payments.

Schedule A to Ms Ak-Tankiz's affidavit purports to prove the amount of the electricity bills that she paid in relation to the Lidcombe Property between 28 September 1988 and 25 August 1997. The schedule itself only contains a list of dates and amounts. The Court Book, however, contains a tab called "SCHEDULE A", which includes electricity bills addressed to Mr Ak at the Lidcombe Property, but only for the period 12 August 1994 to 16 August 1997. Schedule O-1 concerns electricity payments made while the family was living in rented accommodation at Granville. It is also a list of dates and payments. The Court Book contains electricity accounts addressed to Mr Ak for the period 17 November 1997 to 27 November 1998. Schedule R deals with electricity payments concerning the Merrylands Property for the period 24 August 1999 to 11 February 2009. The Court Book contains electricity accounts addressed to Mr Ak for that period up to 2 May 2003, but thereafter there is a gap and only one electricity account for a date in August 2009.

At least in relation to the electricity accounts for the Lidcombe and Merrylands Properties, Ms Ak-Tankiz pleaded that she had paid those payments in her amended statement of claim, and as discussed above, I take Mr Ak to have admitted that the payments were made out of her bank account (T 234.30). The evidence proves that Ms Ak-Tankiz made substantial payments for the family's electricity use, but does not permit those payments to be fully quantified.

Mr Ak was cross-examined in detail about the payments that Ms Ak-Tankiz made for the improvement and upkeep of the Merrylands Property, and the support of the family while they lived in that property (T 228-237). He substantially agreed that Ms Ak-Tankiz made the payments that she claims to have made; was sometimes non-committal or did not know; and only occasionally disagreed. He agreed that his daughter paid $3000 for shutters, that she paid $3100 to "Charlie" for concreting the front yard, she paid $1650 for the front fence, she paid $1375.99 for Colourbond Fencing, she paid $3100 for sandstone for the front yard, she paid $3940 for the balcony and $6000 for concreting the back yard, she paid $1000 for an awning and also made payments to Blakes Pest Control, for a microwave oven, for window blinds, as well as $2250 for a water heater. Mr Ak admitted that Ms Ak-Tankiz paid most of the water rates. He denied, or did not know, that Ms Ak-Tankiz paid $855 for a hot water system, $3300 for roof tiles, $496 for house paint, $552 for timber supplies, and $1050 for plumbing work. A number of other relatively minor payments were in issue between the parties. Mr Ak did not agree that Ms Ak-Tankiz had made most of the repayments on his car, and a number of insurance payments. I gained the impression during Mr Ak's cross-examination, that he was somewhat casual in his approach to the detailed questions put to him as to whether or not Ms Ak-Tankiz had made all of these payments. I prefer Ms Ak-Tankiz's evidence on the issue of whether or not she made these additional payments.

It is sufficient in these circumstances for me to say that the evidence justifies the conclusion, and I so find, that Ms Ak-Tankiz paid out of her bank account substantially all of the mortgage and rental payments in respect of the three properties, as well is most of the costs of renovation, the rates, and the electricity bills. I also find that she made substantial payments in respect of Mr Ak's car, and from time to time made significant contributions to the cost of the family's regular holidays in Turkey. The evidence does not permit a precise calculation of the total payments made by Ms Ak-Tankiz in relation to each of these items of expenditure, although the conclusion is justified in most cases that almost all of the payments were made by Ms Ak-Tankiz.

Contributions to the Joint Endeavour by Mr Ak

Mr Ak gave evidence in par 22 of his affidavit in response, sworn on 24 July 2013, that for a period of 22 years between 1982 and 2004 he worked as a sewing machinist in Ms Ak-Tankiz's business, operated from the family home, for about 40 hours per week for 40 weeks per year. Mr Ak claims to have worked a total of approximately 35,200 hours, without receiving any pay from Ms Ak-Tankiz. He says that, on days when he worked, he would commence sewing from approximately 4:30 AM to about 9 AM. He would then go out to visit friends at a Turkish cafe, do some family shopping, and return home after about noon each day. At about 4 PM he would recommence sewing and continue until about 9 PM. He sometimes worked at night, and, if there was a heavy workload, also on weekends.

Mr Ak thus acknowledges that the payments that Ms Ak-Tankiz says that she made were in fact made out of her bank account, but he also says that a substantial, though unquantified, proportion of those moneys should be attributed to unpaid work done by Mr Ak.

The forensic issue in this case was not whether Ms Ak-Tankiz made the payments that she says she made, but whether a substantial proportion of those payments should be attributed to unpaid work done by Mr Ak on her behalf.

Ms Ak-Tankiz denies outright that her father did the work for her that he claims to have done, and denies that he had the skill to carry out that work.

Mr Ak's children, Arife and Ramazan, gave sworn evidence that corroborates Mr Ak's evidence, at least in relation to the relatively substantial periods that each of those witnesses either lived in the family home, or regularly visited the family home.

It will be necessary to resolve this stark conflict in the evidence. However, it should be noted that, even if Mr Ak's version of events is accepted, Mr Ak does not contest that the sewing business was Ms Ak-Tankiz's business, that it was her reputation that brought in the work, and that she worked hours that were at least as long as those that Mr Ak claims that he worked. Consequently, even if Mr Ak's version of events is accepted, in the absence of specific evidence to quantify the relative proportion of the hours put in by each of the parties, and the differential value which may need to be attributed to the skills of the parties, the natural conclusion to reach is that Ms Ak-Tankiz was responsible by her personal efforts for earning at least half of the income that was paid into her account, to enable the various payments to be made in relation to the acquisition and running of the family home, and the sustenance of the family.

I do not accept Mr Ak's claim that he provided over 30,000 hours of free labour to Ms Ak-Tankiz over a 22 year period in working the sewing machines to assist Ms Ak-Tankiz to fulfil her contracts with her fashion industry clients. Mr Ak's claim is so exaggerated that it is not feasible to make any reliable finding as to the amount of assistance that Mr Ak did in fact provide to his daughter, if any. It may be that he did do limited amounts of work of a relatively unskilled nature in relation to the operation of the sewing machines, and I accept that he from time to time may have used his car to deliver finished product to Ms Ak-Tankiz's clients, and to collect material that Ms Ak-Tankiz had agreed to turn into garments in accordance with her contracts. Mr Ak's contribution to the sewing business would in that respect have had some value. The time that Ms Ak-Tankiz could have devoted to sewing would have been more limited if she had been required to transport materials and finished garments, or alternatively she would have had to incur significant costs in obtaining alternative, commercial courier services. In her evidence Ms Ak-Tankiz denies that her father made substantial contributions to the needs of the business by acting as a courier. She says that for most of the period her principal client was Julius Paipai, and that that client always delivered materials and collected finished garments himself. The problem is that the manner in which Mr Ak conducted his defence, and the manner in which he wholly exaggerated his contribution, makes it impossible to attribute any specific value to that contribution.

I will now address my reasons for rejecting Mr Ak's claim concerning the amount of free labour that he provided to his daughter. It is appropriate to begin by considering the processes involved in contract garment manufacturing, and the level of skill required.

The evidence establishes that Ms Ak-Tankiz used two types of sewing machine in her business. The first was used for the purpose of straight stitching. Straight stitching is the process whereby the individual components of the garment are sewn together along their seams to form the finished garment. The second was used to perform a process called overlocking, which means the running of the sides of pieces of fabric through a machine to finish off the seams so that they will not fray.

Ms Sandra Soulos, who has been a client of Ms Ak-Tankiz's since 2008, gave evidence in Ms Ak-Tankiz's case. Ms Soulos was an independent and credible witness, and I accept her evidence. She has been a fashion designer for over 30 years, and over that period has not only designed fashion garments, but supervised the process whereby patterns are produced and processes developed for the sequential production of highquality fashion garments from the process of cutting material and sewing the material into the finished product. Ms Soulos has had substantial experience with the services provided by Ms Ak-Tankiz.

Ms Soulos explained the processes of straight stitching and overlocking. She said that straight stitching involves the sewing of the seams of the individual pieces of material from which the garment is made up together. It is skilled work because often the fabric has to be eased together, and the machinist needs to know how to get the tension of the fabric right. If the process is not done properly, the garment will not look good. It is a relatively time-consuming process, although a machinist with experience can perform the process much more quickly than somebody without experience. Ms Soulos said that many, many years of training on lots of different machines would be expected before an operator would become a skilled seamstress. That is necessary because they have to know their machines, and they have to have been doing it for quite a few years to understand how different fabrics react. Chiffon is totally different to wool or cotton, and the skilled machinist has to understand how to feed all those different fabrics through the same machine to get the material sitting flat. On the other hand, the process of overlocking is less complex and can usually be done in a couple of minutes per garment. It is a standard procedure to feed the seams of the garment through the overlocking machine to ensure that the seams do not fray.

Ms Ak-Tankiz's evidence was that she learnt to become a skilled sewing machinist in the period that she worked at Leisure Master Pty Ltd in the period November 1977 to September 1978. In January 1987 she completed a two-year course in dress cutting and pattern drafting at Stott's College, which she passed with distinction. The course assisted her to gain access to high-end work in the industry. Ms Soulos said that Ms AkTankiz possessed a high level of proficiency and quality in workmanship, with an ability to follow and create a garment from a sketch and specifications.

Ms Ak-Tankiz explained in her evidence how she taught her sister, Arife, to become a competent sewing machinist. She said that Arife became competent in straight stitching after about two years. Arife agreed in crossexamination that her sister taught her the techniques of sewing over a period of years as she was growing up.

The evidence of Ms Soulos and Ms Ak-Tankiz establishes that the occupation of producing high quality fashion garments using straight stitching sewing machines is highly skilled, and needs experience and aptitude that requires years of practice to achieve. That conclusion is consistent with what the lay person would expect when contemplating the process of turning individual pieces of material into high-quality garments through a repetitive and efficient process using industrial sewing machines.

The direct significance of this evidence is that Mr Ak did not explain at all, let alone in any detailed way, how he acquired the high level of skill necessary to enable him to carry out the sewing work that he claimed to have done over the 22 year period. He said in his affidavit (par 21): "It did not take me long to learn how to do it with the (sic) Arife I used to do straight sewing and the overlocking which was the bulk of the work". He said in re-examination: "so as it went along I learnt it" (T 251). Mr Ak appears by this evidence to say that he simply picked up the skill of straight stitching as he went along, without any particular supervision or explanation.

In his evidence in chief Mr Ak appears to say that operating the overlocking machine was the bulk of the work that he did. There are in evidence two photographs of Mr Ak sitting at a sewing machine at different times (Exhibits 1 and 2). In each case Mr Ak is depicted as holding material close to the machine. Ms Soulos gave evidence, which I accept, that in each case the machine was an overlocker. She said that, based upon the relationship between the material and the machine, the machine was not actually being used at the time the photograph was taken. She said that an overlocker has an automatic cutting function which can be dangerous to the operator, and that it would not have been safe for Mr Ak to operate the machine in the manner in which Mr Ak was depicted in the two photographs.

Mr Ak relied upon the photographs to corroborate his claim that he operated both the straight stitching and the overlocking machines in the course of Ms Ak-Tankiz's business over the 22 year period. The photographs are only capable of supporting a finding that he operated the overlocker. The effect of Ms Soulos' evidence, which I accept, is that the overlocking process is relatively straightforward and not time-consuming. In relation to any given garment, the straight stiching process would require almost all of the time in producing a finished product, while the overlocking process would only require a relatively short time. The point of Ms Soulos's evidence was that there would be no need for anyone to operate the overlocker on anything like a 40-hour week basis. The existence of the photographs does make it possible that Mr Ak did from time to time assist Ms Ak-Tankiz by performing the relatively straightforward overlocking process, but even if that happened, it would not have required considerable time to be devoted to the exercise.

Ms Ak-Tankiz recorded the financial details of her sewing business in the red book. As I have noted above, the red book covers the period from July 1982 to February 2014 (with some years missing because of the removal of the relevant pages). Arife worked in the sewing business for two periods between 1982 and 1987, and 1992 and 1996. Ms Ak-Tankiz recorded the wages due to Arife for each of the years ended June 1992 to June 1996. There is no reference at all in the red book to any work done by Mr Ak, or any entitlement to wages on his part.

No explanation was offered by Mr Ak as to why he worked for nothing, or why he worked for nothing while Arife was entitled to wages.

The principal reason why I do not accept Mr Ak's claim, however, is that I consider it to be inherently entirely incredible. While I readily accept that a father might often give a considerable part of his time for the benefit of his children without reward, I think it is extremely improbable that a man in Mr Ak's position would work for the period of time that he claims to have worked without receiving any payment at all. In coming to this view I have taken into account that Mr Ak had an incentive to protect his pension by limiting the amount of additional income that he earned. Whatever allowance might be made for the effect of paternal goodwill to his daughter, and the desirability for Mr Ak to preserve his pension, I cannot accept that any man with even an exceptional amount of patience and persistence would have the tenacity to work 40 or more hours per week for 40 weeks a year for 22 years straight in a taxing, highly skilled occupation without any payment at all.

When asked in cross examination: "In your affidavit you say you work 40 weeks a year, 22 years at 35,200 hours, that is false isn't it? Mr Ak replied: "I don't know, maybe it could add up that way" (T 184.32). To my observation Mr Ak's response was evasive, and it appeared that he did not wish to grapple with the extreme nature of the claim that he had made.

It is therefore not necessary to decide whether the very substantial financial contributions that Ms Ak-Tankiz made to support Mr Ak and his family are relevant to establishing the domestic relationship. The expression "domestic support" is capable of a wide meaning, and in my view encompasses the making of the various types of payment made by Ms Ak-Tankiz over the years, given the necessity for there to be a close personal relationship as the basis for the making of the payments. It would seem to follow from the fact that s 20 of the Act requires the court to take into account the financial and non-financial contributions made by the parties to the domestic relationship that the meaning of "domestic support" should capture both forms of contribution.

I respectfully adopt the following statement of principle as to the appropriate way to determine a claim under s 20 of the Act, which is taken from the decision of Sackar J in Murgic v Murgic [2011] NSW SC 971:

[32] In Howlett v Neilson , Hodgson J A identified a three stage process which may generally be followed in assessing the respective interests under that section.

[33] In Baker v Towle , Basten JA with whose reasons and conclusions Beazley JA and Matthews AJA agreed and made the following comments:

[42] These proceedings were brought under s 20(1) of the Act, which has three operative effects. The first is to grant a right to a party to a domestic relationship to seek an order adjusting property interests of the parties to the relationship; the second is to empower the court to make such an order "as to it seems just and equitable" and the third is to identify the factors to which the court must have regard in determining the application. Whether those factors are the only factors to which the court can properly have regard was not in dispute in the present case: see Evans v Marmont (1997) 42 NSWLR 70 at 79-80 ; 21 Fam LR 760 at 767-9 (Gleeson CJ and McLelland CJ in Eq); compare Manns v Kennedy (2007) 37 Fam LR 487 ; [2007] NSWCA 217 at [112]-[125] (Campbell JA, Santow JA and Bryson AJA agreeing).

[43] it has been said in a number of cases that the application of s 20 involves three steps, which were identified in Howlett v Neilsen (2005) 33 Fam LR 402 ; [2005] NSWCA 149 (Howlett) (Hodgson JA, Ipp and McColl JJA agreeing) in the following terms (at [25]):

(1) identification and valuation of the property of the parties;

(2) identification and valuation of the respective contributions of the parties, of the types referred to in s 20;

(3) determination of what if any order is just and equitable having regard to these contributions.

[34] As Basten JA pointed out at [45] in many cases a step will need to be taken in order to arrive at a valuation of the property of the parties which is to be the subject of the process. As he points out justice and equity will usually require an assessment be made of the existing interests of the parties in the property owned by each or both in order to determine whether there is an adjustment which should be properly made. This will particularly be so no matter what sort of property is being considered but perhaps more important where real estate is the subject of the consideration.

[At [35] Sackar J considered the time at which the property owned by the parties should be valued].

[36] When one is looking at the valuation of the respective contributions of the parties to the relationship what is not required is "a narrow or purely mathematical process". See Howlett at [29] and Baker at [47].

[37] Section 20 of course importantly requires that the adjustment be done on a just and equitable basis but having regard to the financial and non financial contributions made directly or indirectly by the parties and importantly the contributions made in the capacity of homemaker by either of the parties to the relationship to the welfare of the other party. (Section 20(1)(b)).

[38] In terms of what is involved in the evaluation process in order to arrive at a just and equitable outcome Campbell JA in Manns v Kennedy at [62]-[67] helpfully collected and reviewed the relevant authorities:

[62] McLelland J said in Davey v Lee (1990) 13Fam LR 688 at 689 ; (1990) DFC 95-084 at 76, 146, that under section 20 "the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind". That statement was approved in this Court in Ross v Elderfield[2006] NSWCA 102 at [35] and in Kardos v Sarbutt[2006] NSWCA 11 at [36]; [2006] NSWCA 11 ; (2006) 34 Fam LR 550 at 561 ; (2006) DFC 95-332 at 78,542.

[63] The Full Court of the Family Court of Australia (Fogarty, Murray and Baker JJ) in Ferraro v Ferraro (1993) FLC 92-335 at 79,578 approved the statement in In the Marriage of Harris (1991) 15 Fam LR 26 at 31 ; [1991] FLC 92,254 at 78,705 concerning section 79 Family Law Act 1975 that the task it calls for "is not akin to an accounting exercise". The same applies to section 20.

[64] However, the "holistic value judgment" is the final step in the process of arriving at an order, namely deciding what adjustment of property seems just and equitable having regard to the contributions identified in paragraphs (a) and (b). Carrying out the task that section 20 sets requires, before that final step is carried out, an identification and (so far as possible) valuation of the contributions that are being taken into account and an identification and (so far as possible) valuation of the property concerning which it is open to the court to make an adjustment: Howlett v Neilson[2005] NSWCA 149 at [25]; [2005] NSWCA 149 ; (2005) 33 Fam LR 402 at 407; Saric v Steward[2006] NSWCA 260 at [61]; (2007) DFC 95,401 at 78,713; Chanter v Catts[2005] NSWCA 411 at [22]; [2005] NSWCA 411 ; (2005) 64 NSWLR 360 at 366.

[65] Further, even in carrying out that final step, "there is no warrant for ignoring the rigour that mathematics can provide": Ross v Elderfield (at [49] per Handley JA (with whom McColl JA and Hislop agreed)). As Hodgson JA said in Howlett v Neilson (at [39]; 411):

... while I do not think that these matters can be determined on such mathematical calculations are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision-making.

[66] I note that in Kardos v Sarbutt (at [29]; 558; 78,539), Brereton J gave an account of the process involved in the exercise of the jurisdiction under section 20 Property (Relationships) Act in which the third step was to decide "what order is required sufficiently to recognise and compensate the applicant's contributions". That formulation of the third step in the process was also adopted by Ipp JA (with whom Giles and McColl JJA agreed) in Bilous v Mudaliar[2006] NSWCA 38 at [24]; [2006] NSWCA 38 ; (2006) 65 NSWLR 615 at 620.

[67] It was submitted on this appeal that there may be a difference of substance in the way in which the third step is formulated in Kardos and Bilous, and the formulation used in the cases I have referred to in para [64] above, namely "determination of what if any order is just and equitable having regard to these contributions." I do not think there is any difference in substance between the two formulations. McColl JA agreed with both versions of the formulation, in Bilous and Howlett respectively. The emphasis in the judgment of Ipp JA in Bilous on the fundamental importance of the statutory text of section 20 is inconsistent with any rejection or qualification of the need to determine what, if any order is just and equitable having regard to the contributions. Since both Bilous and Kardos, McColl JA (with whom Handley and Santow JJA agreed) has stated the third step using the "just and equitable having regard to these contributions" formulation in Saric v Steward (at [61]).

[39] Basten JA further commented in Baker v Towle , that in his view that the court in Howlett accepted that the diligent application of both parties to the differentiated roles within a domestic relationship may well lead to the conclusion that interests in property should be divided equally. That result, His Honour remarked, may be achieved without valuing respective contributions in monetary terms although the outcome will be the allocation of interests in property which no doubt could be valued if necessary. [50]

The decisions of the Court of Appeal in Ducker v Smith [2011] NSWCA 2012 and Ireland v Pratley [2013] NSWCA 445 are consistent with the statement of principles set out by Sackar J.

The only property the subject of Ms Ak-Tankiz's application is the Merrylands Property.

The parties accept that the value of the Property as at 25 March 2014 was $835,000. That is likely to remain the value of the Property at present.

The Property is subject to a mortgage that secures a debt of $106,123.11 as at 31 January 2014. The equity in the property is therefore approximately $730,000.

I have determined that Mr Ak holds the Property on a constructive trust with the effect that at the time of his death Ms Ak-Tankiz will be entitled to half of the beneficial ownership of the Property, subject to a charge that reduces her entitlement by $25,000.

Mr Ak is 77 years of age. The time when Ms Ak-Tankiz will be entitled to enjoy the her interest in the Property cannot be predicted, but Mr Ak's age gives some indication that the time will not be a substantial number of years after the present.

The evidence does not permit a determination of the proportions by which Ms Ak-Tankiz's financial contribution to the acquisition of the Property bears to Mr Ak's financial contribution. That is in part because the evidence does not establish in any precise way the total amounts contributed by Ms Ak-Tankiz, or the total amount of the expenditure by both parties that has been required in order to purchase or rent the various properties that the family has occupied. The uncertainty also arises because many of the forms of expenditure, particularly on Mr Ak's part, have not been quantified, and would in any event be difficult to quantify.

Nonetheless, the evidence permits a finding confidently to be made that Ms Ak-Tankiz's contributions have, in total, substantially exceeded half of all of the necessary contributions, and may well have exceeded, say, 75%, although any attempt to assess the upper boundary of the proportionate contribution by Ms Ak-Tankiz is a speculative exercise.

The step of determining what, if any, order is just and equitable, having regard to the respective contributions, which involves a holistic value judgment, should have regard to the fact that it follows from Ms Ak-Tankiz's constructive trust case that she made her contributions, even though disproportionate, on the basis of an understanding that she would ultimately be entitled to half of the beneficial interest in the Property. That understanding is not decisive, and it does not exclude the statutory power given to the court by s 20 of the Act to adjust the interest of the parties in the Property, but it is a significant factor that should be taken into account and given weight in the exercise of the court's discretion.

All things being equal, it would usually be considered to be just and equitable for the parties to receive interests in the property in accordance with their agreement, unless there was good reason for the court to conclude that the circumstances in which the agreement was made undermine the conclusion that the outcome that reflects the agreement is just and equitable, or alternatively some development that was not anticipated by the parties justifies a different outcome.

In the present case the parties at all times proceeded on the expectation that the relationship within the family would continue to be on good terms, and even if Ms Ak-Tankiz re-married, she would continue to enjoy some benefit from her parents' ownership of the Merrylands Property (in the same manner as Arife and Ramazan are presently enjoying), and that she would continue to benefit from being able to conduct her sewing business from a room in the Property on a rent-free basis, as she had done in that property, or the earlier properties, for some 30 years. As has been noted, Ms Ak-Tankiz operated her business from the family home throughout the course of her first marriage.

The relationship between Ms Ak-Tankiz and her father broke down because she insisted upon him honouring the Promises that he and his wife made over the years. The evidence supports a conclusion that, in addition, Mr Ak was not on particularly good terms with Ms Ak-Tankiz's new husband, Mr Tankiz.

Ms Ak-Tankiz did not put a case that the court should ignore her expectation that she would receive a half interest in the Property in return for her contributions, on the ground that she was in some way overborne by her father. It is true that she gave evidence that she made various payments because Mr Ak required her to do so, particularly immediately after she left school, and in relation to such matters as the conveyancing costs of the acquisition of the Property, and the legal costs for her parents' wills in 2004. She did not claim, however, that the terms of the Promises should be ignored, and that the court should make an order that she receive a substantially higher proportion of the Property than she would receive from the fulfilment of her parents' Promises.

Although I have concluded that the circumstances do not make it just and equitable for Ms Ak-Tankiz to be ordered to be given a greater share of the ownership of the Property than the half share that she expected to receive, it will be just and equitable to adjust the timing of her receipt of that interest. The effect of the breakdown in the family relationship is that Ms Ak-Tankiz is now entirely deprived of any enjoyment flowing from the ownership of the Property by Mr Ak, and she is obliged to find the money to pay the rent for the home unit in which she now lives with her husband.

The appropriate order to be made under s 20 of the Act is that Ms Ak-Tankiz receive now half of the beneficial ownership of the Merrylands Property, less the amount of $25,000, which should be the subject of a charge on Ms Ak-Tankiz's interest in the property. The effect of Ms Ak-Tankiz's application under the Act has therefore been to accelerate her entitlement to the one half interest in the Merrylands Property that Mr Ak promised she would receive under his will.

As I have noted above, the parties agreed that the Merrylands Property has a value of $835,000. The Property is subject to a mortgage of about $105,000 (rounded down). On the orders that I propose to make Ms Ak-Tankiz will be entitled to $417,500, less her contribution to the mortgage of $25,000, which gives $392,500. Mr Ak will be entitled to $417,500, less the balance of the mortgage of $80,000, which gives $337,500. Of cause, in each case, the amount will be reduced by the cost of selling the Property, if that is necessary, as is likely. It is just and equitable to leave Mr Ak responsible for the $80,000, as he permitted Ramazan to borrow money for his own purposes on the security of the Property. It may be that Mr Ak is entitled to recover that sum from Ramazan, but whether or not he chooses to do so is a matter for Mr Ak. In relation to the position of Arife and Ramazan, I have noted above that the former owns an unencumbered house in Adelaide, and the latter earns a relatively substantial salary. I should also record that the orders will have the effect that Ms Ak-Tankiz will enjoy a share in the ownership of the Property that is proportionately substantially less than her contributions to the costs of acquiring and improving the Property, but this result is in accordance with the outcome that she expected and acted upon over the whole of the relevant period.

Unresolved issues

There were a number of issues in contest between the parties that I have decided need not, and should not, be resolved. I will briefly consider these issues to avoid the appearance that they have unjustifiably been ignored.

The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations.

Ms Ak-Tankiz contended that both she and her sister, Arife, were obliged to leave school early by the insistence of Mr Ak in order to earn an income to support the family, after Mr Ak was injured and ultimately obliged to rely upon a disability pension. Mr Ak claimed that Ms Ak-Tankiz left school of her own volition, and that it was she who insisted that Arife leave school early in order to learn how to operate sewing machines in order to assist Ms Ak-Tankiz in her sewing business. Arife supported Mr Ak's version of events. Ms Ak-Tankiz left school in September 1977, and Arife did so at the beginning of 1980.

There was a contest about whether Ms Ak-Tankiz paid Arife for her services in the sewing business in the initial period in which Arife assisted her between 1980 and 1986. Arife claimed that she was not paid for the work, but it was as Ak-Tankiz's case that she was paid separately and directly by her client, Julius Paypay, although she said that the pay was "quite low".

Ms Ak-Tankiz gave evidence that, after the mortgage over the Lidcombe Property had been repaid, which occurred in about 1992, she purchased land in her own name in Maitland in 1993 for $20,000. She said that her parents insisted that a residence should be purchased in Turkey for the family, so she reluctantly sold the Maitland property for about $30,000 in 1994. After repayment of the mortgage Ms Ak-Tankiz had a surplus of about $15,000. Using the surplus from the sale, her savings and a further loan of $16,000 from Westpac Banking Corporation, she purchased a residential unit in 1995 in a popular suburb in Izmir, Turkey, for a price of AU$50,000 in her own name. In about August 2003, when Ms Ak-Tankiz was in Turkey with her parents on a holiday, she gave her uncle, Mr Ak's brother, a power of attorney that authorised him to sell the Izmir unit. Ms Ak-Tankiz's case is that her father repeated his promise that he would leave the family home to her before she executed the power of attorney, and that she gave the power of attorney in reliance upon his promise. According to Ms Ak-Tankiz, in early 2004 Mr Ak informed her that the residential unit had been sold for $40,000. Later, in June 2004, when Ms Ak-Tankiz was again in Turkey with her father and Ramazan, she was persuaded to lend US$7000 to her uncle for medical expenses and treatment, and that she was only repaid US$3000. Of the $50,000 purchase price, Ms Ak-Tankiz says that she only recovered about $34,000, which she claims that she used to fund a number of the renovations and improvements to the Merrylands Property that have been considered above. In essence, Ms Ak-Tankiz claims that she only authorised her uncle to sell the residential unit, and made the loan to him on the insistence of Mr Ak. He, on the other hand, claims that each of these steps was voluntarily taken by Ms Ak-Tankiz.

The issue of whether Mr Ak repeated the Promise to his daughter at the time she gave her power of attorney to her uncle, and whether she did so in reliance upon that Promise, is relevant, and has been considered above. If the sale of the property generated a receipt of $34,000 by Ms Ak-Tankiz, that fact is only relevant in so far as it allowed her to fund a number of the renovations and improvements to the Merrylands Property, which has also been considered above. Otherwise, the circumstances in which Ms Ak-Tankiz bought and sold the Maitland property, purchased the Izmir residential unit, authorised her uncle to sell it, and the amount she received from the sale price, the loan made to her uncle and the amount repaid by him, are not material.

There was considerable evidence about the circumstances in which the property at 68 Jean Street, Seven Hills, was purchased on about 30 July 2004 in the name of Ms Ak-Tankiz for $437,000. Ms Ak-Tankiz claims that her brother, Ramazan, asked her to buy the property in her name, because at the time he was bankrupt. According to Ms Ak-Tankiz, the purpose of the purchase was ultimately to acquire neighbouring properties to permit the development of residential home units. The purchase of the Seven Hills Property was financed by a mortgage that Mr Ak and his wife gave over the Merrylands Property, as well as over the Seven Hills Property itself. Ms Ak-Tankiz accepts that Ramazan paid the mortgage payments that were attributable to the purchase of the Seven Hills Property. The development proposal fell through because the neighbouring properties were sold to other purchasers. By an undated Transfer, which, Ms Ak-Tankiz claims, her solicitor first showed her in about 2010, the Seven Hills Property was transferred to Ramazan and his partner for $450,000. Ms Ak-Tankiz claims that she was persuaded to purchase the property by her father, and also that she did not execute the Transfer. Mr Ak and Ramazan relevantly denied these claims.

The fact that the Merrylands Property was further mortgaged to fund the purchase of the Seven Hills property, and the possibility that some part of the current mortgage on the property may be attributable to that borrowing, are relevant issues in the proceedings, and have been considered above. Otherwise, it is not necessary to resolve the contested claims concerning this issue, particularly in relation to whether Ramazan, or some other person on his behalf, was responsible for forging Ms Ak-Tankiz's signature on the Transfer. By comparison between the signature on the Transfer that purports to be that of Ms Ak-Tankiz, and her admitted signature on the RAMS mortgage over the Seven Hills Property, as well as on her affidavits, there is a reasonable argument that the signature on the Transfer is not the genuine signature of Ms Ak-Tankiz. However, in the absence of a need to do so, it would not be appropriate to make findings on the issue of forgery, given the limited state of the evidence. Furthermore, no issue of forgery was pleaded so it does not arise on the pleadings.

Ms Ak-Tankiz gave evidence about the circumstances in which Mr Ak and his wife gave instructions to their solicitor in about April 2004 to prepare wills, which Ms Ak-Tankiz understood implemented her parents' promise to leave her part of the Merrylands Property. She says that she paid the solicitor's fee at the request of Mr Ak. In his evidence Mr Ak denied making any promise to his daughter that he would leave her half the house, and said that he never made a will with that effect. He said that he was not aware of any will made by his wife that contained such a bequest. As I have found that Mr Ak did make the Promises as alleged by Ms Ak-Tankiz, it is not necessary to resolve what occurred in relation to the preparation by Mr Ak and his wife of wills in 2004.

There was also an issue as to what happened at a meeting that took place at a McDonald's restaurant between Ms Ak-Tankiz and Arife and Ramazan concerning the need for Ms Ak-Tankiz to commence proceedings to establish an entitlement to an interest in the Merrylands Property, to prevent Mr Ak selling the property and moving back to Turkey on the suggestion of his brother. The fact is Ms Ak-Tankiz did commence the present proceedings, and the reason why she did so is immaterial. There is therefore no need to resolve the differences in the oral evidence given by the attendees at the meeting as to what occurred.

Claim against Ramazan Ak

As I have noted, the amended statement of claim does not contain any claim against Mr Ramazan Ak. Notwithstanding this, Ms Ak-Tankiz sought to make a claim against him that was not raised until her final submissions (plaintiff's written submissions pars 38-41). The claim was for $90,000 plus interest. The basis of the claim was that Mr Ak, as one of the registered proprietors of the Merrylands Property, permitted the property to be mortgaged to RAMS as third-party security for an advance by RAMS that included $107,000 to permit the purchase of the property at Seven Hills (initially in the name of Ms Ak-Tankiz, but for the benefit of Ramazan, and ultimately transferred into the names of Ramazan and his partner). It is not necessary to relate the detail of the transactions concerning the amount borrowed for Ramazan's benefit. Ms Ak-Tankiz submitted these matters were relevant because "his borrowings had the effect of diminishing the net value of the property when the mortgage is taken into account".

Not only was this claim not pleaded by Ms Ak-Tankiz, but it was not foreshadowed until final submission is, and accordingly was not contested during the hearing. On that basis the claim must be rejected.

Conclusion and orders

I will make the declaration that Mr Ak holds the Merrylands Property partly on trust for Ms Ak-Tankiz that I have foreshadowed above, but I will then vary the interests of Ms Ak-Tankiz and Mr Ak by making an order under s 20 of the Act so that Ms Ak-Tankiz will be entitled now to a beneficial interest in the Merrylands Property that is the same as the interest that Mr Ak promised that she would receive under his will.

As the making of these orders will clearly cause significant practical disturbance to Mr Ak's living arrangements, and as consequential orders will need to be made to implement the primary orders (which will involve a consideration of timing issues), I will give the parties an opportunity to consider these reasons for judgment, the orders that I have made, and the consequential orders that should be made to give effect to those orders. I will make appropriate directions, and relist the matter at some convenient time to the parties, to deal with the final orders that should be made. I will also hear the parties as to costs, although in principle this is a case in which an order should be made that Mr Ak a Ms Ak-Tankiz's costs of the proceedings.

The orders that I now make are:

(1) Declare that the first defendant holds the property located at 8 Yeend Street Merrylands, in the State of New South Wales, being the property in folio identifier Lot 2 in Deposited Plan 240829 (the "Property") on a constructive trust as to half of the beneficial interest in the Property such that that interest in the Property will vest in the plaintiff upon the death of the first defendant.

(2) Declare that the plaintiff's interest in the Property in accordance with par (1) is subject to a charge in favour of the first defendant to secure the amount of $25,000, which the plaintiff is liable to contribute towards the mortgage to which the Property is subject.

(3) Order under s 20 of the Property (Relationships) Act 1984 (NSW) that the interests of the plaintiff and the first defendant in the Property (including as declared in pars (1) and (2)) be adjusted with the result that:

(a) The plaintiff is from the date of these orders entitled to half of the beneficial interest in the Property;

(b) The first defendant is from the date of these orders entitled to half of the beneficial interest in the Property.

(c) The plaintiff's interest in the Property is to be subject to an obligation to pay $25,000 towards repayment of the debt that is at present owed by the first defendant on the security of a mortgage over the Property.

(d) The first defendant's interest in the Property is to be subject to an obligation to pay the balance of the debt that is at present owed by the first defendant on the security of a mortgage over the Property.

I will also make the following order concerning the return of exhibits and subpoenaed materials:

(4) Order pursuant to UCPR r 31.16A and r 33.10, and Practice Note No S C Gen 18 par 26:

(a) that the exhibits be returned forthwith to the parties who tendered the exhibits to be held by them in compliance with Practice Note No S C Gen 18 par 28;

(b) that the parties return any exhibits that were produced to the Court by any person in answer to a subpoena or notice to produce to the person who produced the document forthwith upon the expiry of any time for which the party to whom the exhibit is returned is required to retain the exhibit;

(c) that all material produced directly to the Court by any party in answer to any notice to produce that has not become an exhibit be returned forthwith to the party who produced the material; and

(d) that the Registry should forthwith return, or otherwise deal with in accordance with Practice Note No S C Gen 18 par 27, all material produced to the Registry in answer to any subpoena or notice to produce.

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Decision last updated: 06 August 2014

Medium Neutral Citation:	Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044
Hearing dates:	4,5,6 March 2014, 25 March 2014 and 28 March 2014
Decision date:	04 August 2014
Jurisdiction:	Equity Division
Before:	Robb J
Decision:	(1)Declare that the first defendant holds the property located at 8 Yeend Street Merrylands, in the State of New South Wales, being the property in folio identifier Lot 2 in Deposited Plan 240829 (the "Property") on a constructive trust as to half of the beneficial interest in the Property such that that interest in the Property will vest in the plaintiff upon the death of the first defendant. (2)Declare that the plaintiff's interest in the Property in accordance with par (1) is subject to a charge in favour of the first defendant to secure the amount of $25,000, which the plaintiff is liable to contribute towards the mortgage to which the Property is subject. (3)Order under s 20 of the Property (Relationships) Act 1984 (NSW) that the interests of the plaintiff and the first defendant in the Property (including as declared in pars (1) and (2)) be adjusted with the result that: (a)The plaintiff is from the date of these orders entitled to half of the beneficial interest in the Property; (b)The first defendant is from the date of these orders entitled to half of the beneficial interest in the Property. (c)The plaintiff's interest in the Property is to be subject to an obligation to pay $25,000 towards repayment of the debt that is at present owed by the first defendant on the security of a mortgage over the Property. (d)The first defendant's interest in the Property is to be subject to an obligation to pay the balance of the debt that is at present owed by the first defendant on the security of a mortgage over the Property (4)Order for the return of exhibits as set out in par 201.
Catchwords:	EQUITY - trusts - constructive trust - common intention trust - promise to leave house in will - s 20 Property (Relationships) Act 1984 - adjustment of interests in property
Legislation Cited:	Property (Relationships) Act 1984 (NSW) ss 18, 20, 22 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Austin v Hornby [2011] NSWSC 1059 Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Baker v Towle (2008) 39 Fam LR 323 Dable v Peisley [2009] NSWSC 772 Ducker v Smith [2011] NSWCA 2012 Green v Green (1989) 17 NSWLR 343 Ireland v Pratley [2013] NSWCA 445 Murgic v Murgic [2011] NSWSC 971 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 Saliba v Tarma [2009] NSWSC 581 Shepherd v Doolan [2005] NSWSC 42 Watson v Foxman (1999-2000) 49 NSWLR 315
Category:	Principal judgment
Parties:	Aytul Ak-Tankiz (plaintiff); Ferat Ak (first defendant) and Ramazan Ak (second defendant)
Representation:	Counsel: N M Carney (plaintiff) E H Baskerville (defendants) Solicitors: John Karacan (plaintiff) James Hassetts (defendants)
File Number(s):	2012/126261