Bryson v Bryant

[1993] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S231 of 1992

B e t w e e n -

JOHN HENRY BRYSON

Applicant

and

JOHN BERESFORD-BRYANT and DAVID

RUBEN JARRETT

Respondents

Application for special leave

to appeal

DAWSON J
GAUDRON J

MCHUGH J

Bryson 1 21/5/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 MAY 1993, AT 2.20 PM

Copyright in the High Court of Australia

MR M.B. EVANS:  May it please Your Honour, I appear for the

applicant with MS A.A. COTTER-MOROZ. (instructed

by Corrs Chambers Westgarth)

MR D.L. DAVIES:  May it please the Court, I appear for the

respondents. (instructed by David R. Jarrett)

DAWSON J:	Mr Evans.
MR EVANS:	My first application is for an extension of time

for filing this application.

DAWSON J: Perhaps we will put that to one side for the

moment, Mr Evans.

MR EVANS:  Thank Your Honours. This application arises,

Your Honours, from a decision of the New South

Wales Court of Appeal which, by majority, upheld a

decision of Mr Justice Young in a claim brought by
the applicant who is the younger brother, the

executor and sole heir, of a woman who died in

about 1988.

The claim is for an equitable interest in what

was that woman's matrimonial home for some 50 or 60

years before that. Both that woman and her husband

are dead. A friend represents the executors of the

husband's estate. The house stood in the husband's

name and the marriage was childless. The husband

left, in his will, the property to his wife to

reside in for life and thereafter for the Red

Cross, and failing that, to the Red Cross.

The basis of the claim arises from the equity

which the applicant says his sister had in the

property at the date ~f her death which, in turn,

arises from her contributions - - -

GAUDRON J: Earlier than that or only at that stage?

MR EVANS:  In my submission, it would have arisen earlier,

but the crucial date, we say, is the date of death
or date of denial of the interest.	One of the

issues, we say, that warrants reconsideration of
this case is that the Court of Appeal did not

consider the question of when such an equity might

arise.

GAUDRON J: When do you say it might have arisen?

MR EVANS:  In this case, virtually at the date they moved

into the house. They camped on the land at first

when it was vacant and both worked in building the

house. My submission is that by that stage her

contribution in labour towards the building had

established an equity in her favour in half the

Bryson 21/5/93

land, which was only confirmed by her later

contributions.

DAWSON J:	What were the later contributions?
MR EVANS:	The time frame was, Your Honour, that they moved

on to the land in 1932, they camped there and built

the house, the transfer to the husband is dated

1935, although it was not registered until 1959.

In about 1940 her mother died and the evidence is that the estate was divided between the children, including the applicant, and that he received about

75 pounds and that the wife then spent money on

internal fittings such as doors, which had not been

included in the house when it was erected, some

floor coverings and other things to do with the

house, and that otherwise she did all the

housework.

DAWSON J:  The housework is another thing, is it not? I

mean, she would have done that wherever she was.

MR EVANS: Perhaps, Your Honour, but she maintained this

house for all that time and, on the evidence, there

is a clear distinction between the roles of home-

maker and breadwinner or money earner in this case

because, on the evidence, the husband did not do

any of the housework, he could not cook, and she

did all the washing and cleaning.

DAWSON J: But does washing and cleaning have any relevance?

MR EVANS: In my submission it does, Your Honour. This

Court in Baumgartner and in Muschinski has made

statements about non-financial contributions

towards the acquisition, improvement and
maintenance of a house·and that here, there is a

case where there is a clear position of provision of home-maker services over a long period of time which have assisted in maintaining the house; also

maintaining the husband while he earns the money to

pay the outgoings charged on the house. So that on his death the Red Cross received a

house that was in a fit state to be sold and which had not been sold up by the local council for non- payment of rates and the like, and that she

contributed to that situation through her labours

over the years.

GAUDRON J: Could I ask you this: had the building been

completed when the transfer was dated, was

executed, presumably -

MR EVANS: That we do not know, Your Honour.

Bryson 21/5/93

GAUDRON J: That is one of the difficulties about this case,

is it not? There is a lot we do not know.

MR EVANS: There are some things we do not know,

Your Honour.

GAUDRON J: But you say the building commenced in 1932?

MR EVANS:	Yes, Your Honour.
GAUDRON J:	The transfer was dated 1935?
MR EVANS:	That is right, and they moved in as soon as it

was at lock-up stage, so the inference, I would

suggest, from that is that it was built before the

transfer was signed.

GAUDRON J: That causes some problems, does it not, in terms

of an equity arising earlier than 1935?

MR EVANS: That might be offset, Your Honour, by the fact

that the transfer is not registered until 1959, so

we do not know when the money for the transfer was

actually paid. It may not have been completed

until some time later and through her work, she

assisted him in earning the money to·pay it. We do

know he was unemployed up to 1935 when he secured a

job with the Electricity Commission and that the

money paid for the transfer was 70 pounds and that

the money that she inherited which, on the

evidence, it appears she invested in the house, was

about 75 pounds.

GAUDRON J:  We have no basis for knowing from what funds the material for the building was provided?

MR EVANS:  No, Your Honour. The only evidence is that she

was working for Faye's Shoe Stores at the time or
up to the time of her marriage and that she ceased

working some time thereafter.

GAUDRON J: When did she marry? Do we know that?
MR EVANS:	1927. At that time the husband had an electrical goods shop which seems to have closed in about 1930 and that he was unemployed then until 1935.
DAWSON J:	Where do you say the Court of Appeal went wrong,

the majority, that is?

MR EVANS:  The majority of the Court of Appeal came to their

decisions on two different bases, and I might say
at this point, Your Honours, that the appeal as

framed appealed against decisions against a finding

that there was no common intention between the two

giving rise to a trust. That point is not pressed

in the appeal, so it is only one on the

Bryson 4 MRE~S 21/5/93

constructive trust point, on what might be called

a Muschinski/Baumgartner ground and the unjust

enrichment ground. On the constructive - - -

GAUDRON J:  You are attempting to extend what was said by

Justice Toohey, are you, in Baumgartner?

MR EVANS:  As far as the unjust enrichment point goes, yes,

Your Honour, although it may be - - -

GAUDRON J:	As a basis for constructive trust only.
MR EVANS:	Yes, _Your Honour, but it may be at the end of the

day that unconscionable retention of benefit in the

Australian sense is considered to be synonymous

with unjust enrichment in the Canadian sense, at

least as it applies to these cases.

GAUDRON J: But that again raises a question of time, at

what time, does it not?

MR EVANS:  It does, Your Honour, but that is not necessarily

a point that goes against me. The moment of

enrichment is the moment at which, if you like, the

fruits are realized.

DAWSON J:	Who was unjustly enriched?
MR EVANS:	At this stage we would say the husband's heirs.
DAWSON J:	The Red Cross?
MR EVANS:	Yes.  They get all the benefits of the fruits of

the labours of the two and her heirs, her
designated successors, get nothing. At the date of

her death, and the husband died shortly thereafter,

she had her jewellery and that was about all,

whereas he had a house worth about $160,000 and

about $15,000 in the bank. That was the sum total

of a marriage of about 60 years.

DAWSON J:  Can unjust enrichment survive death?

MR EVANS:  Claims in the nature of resulting trusts do, and

it will be my submission that if the Court is to

give the non-financial contributions parity and

they are to be treated -

DAWSON J: But she had a right to reside in the house as

long as she was alive.

MR EVANS:	Yes, she did, Your Honour, but my submission is that the equity that she had goes further than
that. If an interest in the nature of resulting
trust by virtue of direct financial contributions
can survive death, and an equity can be said to
arise from non-financial contributions and those

Bryson 5 21/5/93

non-financial contributions are to be given due

recognition by the Court, then so the equity that
arises from those contributions should also survive

death and be capable of devise.

GAUDRON J: Then you must say, must you not, that the

husband was unjustly enriched in his lifetime?

MR EVANS:  He was, yes, and that it was unconscionable of

him -

GAUDRON J:  To outlive her?

MR EVANS:  No; ·not to take her wishes into account in the disposal of the property, Your Honour. The finding

that there is no agreement between the two and the

principle this Court handed down in Delehunt v

Carmody that where there is a co-tenancy in equity,

it must be a tenancy in common, must have the

result that if they are co-tenants and the interest

is in the nature of an interest in fee simple, it

can survive and there can only then be a joint

tenancy in equity if by agreement. And·the courts

below have found that there is no evidence of an

agreement between the two.

If I can go back to the reasoning of the

majority in the Court of Appeal, Mr Justice Sheller

decided the constructive trust point on the basis

that it was not unconscionable in the

circumstances - and this is in the application book

at page 64, Your Honours, where he says:

In my opinion there is a particular

reason why it is not inequitable or

unconscionable that the estate of Mr Moate

retain the entire interest in the subject

property of which he was the legal proprietor

and why the Court should not impose a

constructive trust. The relationship did not

collapse so that a situation arose which

neither party would have foreseen. Even if it

be assumed that the parties pooled their

resources, both financial and otherwise, for

the purposes of their joint relationship, with

the consequence that during their joint lives

each enjoyed an equitable interest in the

subject property, there seems to me to be

nothing unconscionable in one party retaining

that property on the inevitable dissolution of

that relationship when the other dies.

Particularly is this so if the relationship is

one of marriage.

GAUDRON J:  You say that is wrong?

Bryson 6 21/5/93

MR EVANS:	Yes - or it fails to, in my submission, properly analyse the equity that arises.
GAUDRON J:	Not because there was a breakdown of the

relationship, if you like, at some earlier point of

time by reason of the hospitalization of both.

That has never been put, I take it?

MR EVANS:  His Honour there says:

The relationship did not collapse so that a

situation arose which neither party would have

foreseen.

In my submission, there could be said to be elements which arose which were not foreseen, for

instance, the fact that the relationship produced

no children, so there was no natural heir to

succeed them both.	The fact that the wife did not
survive the husband.	She was a couple of years

older than him; none the less their expectation may

have been that she would survive him. Also, we do

not know whether she was aware of the terms of his

will when he made it in about 1975, for instance,

that her brother would be excluded from - - -

GAUDRON J:  I noted that. I see, the will was in 1975?

MR EVANS:	Yes, Mr Justice Kirby is in error when - she made a will late in the 80s but his will was made in the
mid-70s. So that in that sense the situation which
arose when they were both near death was one which
she had not necessarily foreseen.
Mr Justice Samuels, on the other hand - and His Honour's judgment can be found at pages 81 to
84 of the application book - on the constructive
trust point His Honour's reasons begin at line 27
on page 81 and over the page he states the principle which he applies which is the quote taken from Justice Deane's judgment in Muschinski v Dodds
at page 620. But in applying that principle I
would submit that His Honour fell into error in
that his discussion of Mrs Moate's contributions to
this house in the pages that follow makes no mention of her contribution in labour to the
building of the house, nor to her later financial contribution to its improvement on receiving her
inheritance.  He only talks about her contributions
in the form of domestic service.  I would submit,
even there, that he falls into error because he
fails to give those contributions due weight in
view of the judgments of this Court in Muschinski
and Baumgartner, but that having stated the
principle, in my submission respectfully, he
misapplies it in failing to recognize the equity
Bryson	21/5/93

that would arise and failing to give due weight to

the actual contributions that would be made.

GAUDRON J:  One of the difficulties, though, is it not, is,

given that the transfer was in 1935 and in one name

only, ought one not only look from 1935 onwards, in

the sense that the transfer in a single name at

that time does create some sort of inference.

MR EVANS: With respect, Your Honour, I would submit no.

They moved on to the land, as far as we can tell,

with the intention that that was to be their home

and that the actual mechanism of when the house was

built, when the transfer was signed, when the

transfer was registered, how the money was paid,

simply followed in train, with the intention to

make a home together. If one looks at the joint

endeavour, in the Muschinski sense, it begins when

they move on to the land and that the date of the

transfer is less than material in that context.

The dissenting judgment in the Court of Appeal

was that of Mr Justice Kirby and His Honour's

conclusions on the constructive trust point, which

he discusses at some length, can be found at

pages 32 to 33 of the application book. Having

discussed the facts and the principles arising,

particularly from Muschinski and Baumgartner,

His Honour said:

Young J (and the majority in this Court)

do not find it unconscionable that Mr Moate

(and his heirs) should retain the whole of the

property after Mrs Moate's death despite the

foregoing. I do. The way in which Mr and

Mrs Moate severally provided by their wills is irrelevant. The point of principle must be tested by the possibility that they had had

children or other family to whom they sought

to leave their respective interests.	Love and
affection are all very well.	By inference,

they existed in this relationship for a very

have often been used as a cloak to hide the	long time. But, in the past, such emotions
proper claims of women upon the assets of men or of the weak of either sex upon the property of the strong.

It is unconscionable that Mr Moate's

estate should take the entirety of the value

of the matrimonial home to be disposed of

exclusively according to his wishes and with

complete disregard for her wishes as expressed

in her will providing benefits to her brother.

If she had an interest in the matrimonial

home, both for financial contribution and

domestic services therein (as I believe she

Bryson 8 21/5/93

did) it was an interest which would be

protected by a constructive trust, declared by

the Court. Subject to what follows, that

trust would survive her death and inure to the

benefit of her heirs, as provided by her will.

His Honour then goes on to discuss the unjust

enrichment point. The issue which I submit falls

principally to be considered in this appeal is the

degree of recognition afforded to non-financial

contributions, particularly those in the role of

home-maker, under the principles laid down by this

Court in Muschinski and Baumgartner. That is a

matter of some debate. In his judgment,

Mr Justice Kirby refers to a wide range of

commentators on the subject and, if I could take

Your Honours to the foot of page 27 of the

application book, he refers to an article by

Rebecca Bailey-Harris on domestic "Property

Disputes" in which, particularly the last sentence

of that quote on page 28, she says:

for the new doctrine to reach its full

potential, it must be applied by courts to

claims arising from fact-situations where

homemaker/parent contributions stand alone and

this has not been done in the reported

decisions to date.

So that in that sense it is my submission that the principles stated in Muschinski v Dodds and

Baumgartner have not yet been fully worked out,

particularly as they apply to non-financial

contributions, and that this case provides a

suitable vehicle for the consideration of those

issues, largely because the circumstances and the

facts are fairly clear in that there is a

distinction between the roles of home-maker and

breadwinner; It is a long relationship, and this is

a situation where there is no statutory

amelioration. The heir in question does not fall

under the umbrella of the Family Provision Act.

The relationship survived until death, so there is

no application under the Family Law Act.

GAUDRON J: There could have been, could there not?

MR EVANS:  If she had made an application before she died?

GAUDRON J: Yes.

MR EVANS:  She lodged a caveat before she died and, in my

submission, that gives notice of a claim. My

submission on the case as a whole would be that it

be looked at at first on the hypothesis that she

brings it herself now while alive and that then we

consider whether her death changes anything.

Bryson 9 21/5/93

McHUGH J:  The difficulty I have with the President's

judgment is that at no stage does he indicate how

the wife's contributions by way of housework
contributed in any way to the acquisition, the
maintenance or the improvement of the property.

Now, is there any evidence of that because,

otherwise, it just seems to me to come to a case

where somebody says, "Well, I've lived with you for

a long time and I provided services for you and,

therefore, I want to be entitled to share in your

property." That is pushing the law a long way.

MR EVANS:  I am not suggesting that the law be pushed that

far. The contributions in this case, in my

submission, are significant. The contribution to

the building of the house is significant when one

considers the discomfort and difficulties of

camping on a block of land to build it; keeping the

site clean and washed, looking after the man

building it with only one cold water tap; the

evidence is that she assisted in the building work.

She did as much as she could do and did her fair

share of the work and therefore ought to·

participate. And it is the improvement to the

land, the house on the land, that really puts the
value there. Thereafter, she puts the money in for

the improvements - - -

McHUGH J:	Not to the house, to some fittings.
MR EVANS:	Doors and things like that, Your Honour, which

are, I would submit, fixtures in this case, and

floor coverings which I would also submit are

fixtures. And she cleans the house for the rest of

her life which, in my submission, assists with its

maintenance. By providing the supporting role of

home-maker to his role of breadwinner, she helps

pay the outgoings on the house. There was never a

mortgage on the title but there were statutory

outgoings which he had to meet, and other expenses

no doubt involved in maintaining a house as a

residence over a period of 50 or 60 years.

In my submission, those are all contributions

to the improvement and the maintenance of the

house, even if they are not contributions to its

acquisition. The fact that the transfer is not

registered until 1959 opens some room for an

inference that the purchase moneys were not paid

immediately on the transfer and that, again, her

role as a home-maker may have contributed to his

ability to pay those moneys later on and,

therefore, she can be taken to have contributed to

its acquisition.

McHUGH J: That is speculation - - -

Bryson 10 21/5/93

MR EVANS: That may be, but the other submissions, with

respect, are not. It may be that the President in

his judgment concentrated more on the domestic

contributions as home-maker than was necessary.

The case, in my submission, had strong grounds on

what might be called a traditional basis, in her

labour in helping build the house and then putting

what money she had into it later. It is also the

fact, and I would also submit here that there is

perhaps -

GAUDRON J:  I know you say that, but you did in fact - did

you claim a resulting trust?

MR EVANS: 

We did, yes, and that is not pressed on the

appeal. There is, in my submission, a widow's mite
argument here. This woman put everything she ever

had into this house.

McHUGH J: 

I have no trouble, just speaking for myself, that

the contributions of a wife by way of housework

into a relationship ought to count as much as his

earnings, irrespective of how high they are. But my problem in this case is nevertheless to relate those contributions to the acquisition or

improvement or maintenance of the property. I

really see no distinction between this case on the

whole and a case where they lived in a rented

house, he just happened to have some other property

and she was claiming a half interest in it. I can

understand your claim if you were making some claim

in respect of what she did provide in terms of the

early work in respect of the matter, for some

portion of the value of it, although there would be

some difficulties about that, but you want a half

interest.

MR EVANS:	Yes.
McHUGH J:	On that view, the equitable interest had been

acquired long before both died?

MR EVANS:  Yes, Your Honour. There is discussion in some of

the authorities, also	some of the articles on these
issues, that there be	a nexus between the
contributions and the	property in which the
interest is claimed.

McHUGH J: There has to be.

MR EVANS:	In my submission, the distinction between the suggestion Your Honour made of them living in
rented property and him owning something else is
that this is the house that she performed the work
on. This is the house she cleaned. This is the
house that she maintained to enable him to earn the
money as breadwinner to pay any costs of

Bryson 11 21/5/93

maintenance, of any statutory charges on the place.

This is the place that she helped build. In my

submission, her contributions had a direct nexus

with this particular property.

McHUGH J:  I have a problem with that question about

housework helping to pay the charges and so on.	It
might be said that the housework was in return for
her being provided for.	I do not use that in any

pejorative sense. At back of these cases is an

attempt to right what is regarded as an injustice,

but what is the injustice here, when the parties

themselves have not sought to deal with it. In

fact, they have dealt with it on the basis that the

property was in his name; even as late as 1959 it

was not put in both parties' names.

MR EVANS:  That is so, Your Honour. She did make a claim

towards the end of her life and it may have been

her assumption that she would be provided for and

the house would be hers and hence the reason for no

claim being otherwise pressed during her lifetime.

GAUDRON J: That is part of the problem, though, is it not?

At what point do you say unconscionable retention,

if no claim is in fact made - - -

MR EVANS:  In my submission, the unconscionability arises on

denial of the claim or perhaps earlier.

GAUDRON J:  Who did that? Why denies the claim?

MR EVANS:	It could have arisen earlier when he made a will effectively denying any recognition of interest in
the property.

McHUGH J: For all we know, she might have been perfectly

content at that stage for him to dispose of the

property.

MR EVANS:  We do not know whether she knew about the will or the terms of the will.

McHUGH J: No, I know. It is only very late in the day that

she makes a will leaving it to her brother. Even

if you were born yesterday, it would not be hard to

work out how the will came to be made.

MR EVANS:  There are subsidiary issues to the major issue I

have raised, Your Honours, which take us along some

of the lines that have been raised by the
questions. There is the issue of the nature of the

equity that arises on the Muschinski and

Baumgartner points, and in particular whether it

survives, and the time at which it arises and,

indeed, whether it accumulates over time or whether

it arises at a given moment. If it is to be

Bryson 12 21/5/93

treated as being the equivalent of the equity that
arises on traditional resulting trust principles,

then in my submission that would also mean that it

should be recognized as devisable because there are

authorities to say that those interests survive the

death of the person contributing to the purchase

price.

On the point of the joint endeavour or joint

purpose, the judgment of Mr Justice Samuels at

pages 81 to 82 of the application book suggest that

there should be some commercial flavour to this,

when he looks at the Canadian cases like Pettkus v

Becker and talks about couples that have run a farm

together but that is, with respect, inconsistent

with the view expressed by Mr Justice Deane in

Muschinski where His Honour, at the foot of

page 621 says:

As has been seen however, the

relationship between the parties in the

present case was not merely a commercial one.

It was a mixture of the commercial·and the

personal. The personal relationship provided

the context and explains the content of the
planned commercial venture. If the personal
relationship had survived for years after the
collapse of the commercial venture and the

property had been unmistakenly devoted to

serve solely as a mutual home, any assessment

of what would and would not constitute

unconscionable conduct would obviously be

greatly influenced by the special

considerations applicable to a case where a

husband and wife or persons living in a "de

facto" situation contribute, financially and
in a variety of other ways, over a lengthy

period to the establishment of a joint home.

In the forefront of those special

considerations there commonly lies a need to

take account of a practical equation between

direct contributions in money or labour and	indirect contributions in other forms such as
support, home-making and family care.

In my submission, His Honour was in error in

appearing to suggest that there has to be some

commercial flavour about the joint endeavour

between the parties to excite these principles.

The joint endeavour can simply be the provision of

a home for themselves which, for the bulk of the
population, is the major and dominating investment

of their lives.

DAWSON J:  I think you have adumbrated the questions which

arise and you say they are questions of importance.

Bryson	13	21/5/93
MR EVANS:	Yes, I do.	On the question of unjust enrichment

there is a question that, in my submission, remains
to be considered, particularly following

Justice Toohey's comments in Baumgartner of the precise nature of the relationship between the doctrine of unconscionable retention of benefit

recognized here and the doctrine of unjust

enrichment as it is applied in these cases in

Canada. There have also been decisions - to some

extent, this decision, and also a decision of the

New South Wales Court of Appeal in Green v

Green where, in my respectful submission, the principles from Muschinski and Baumgartner have not

been applied as they were intended. In the Court

of Appeal in Green v Green the Chief Justice

referred to, and appeared to apply, the English

decisions of Grant v Edwards and Maharaj v Chand in

the Privy Council which talk about common intention

and people acting to their detriment on the basis
of that which, with respect, drifts away from

Muschinski and Baumgartner, and English authorities would have to be regarded circumspectly in this

area of the law because there have not been any
decisions of that sort there yet. And to look for

what the commentators describe as the phantoms of

intention, in a constructive trust case, is, in my

respectful submission, misconceived.

There are policy considerations, too, which

warrant consideration of this matter by the High

Court and, in particular, the recognition to be

afforded by the law to what might be called a value

or worth of women's work. That was a matter to

which Your Honour referred in Van Gervan v Fenton,

although in a different context, but if the

principles laid down by this Court in Muschinski

and Baumgartner are to be applied effectively by

courts below, then this question of what
recognition is to be afforded to non-financial

contributions deserves consideration.

McHUGH J:

One of your difficulties seems to me to be that

the time frame that we are dealing with - now, if a

set of facts similar to this had come into

existence five or six years ago - by that I mean

that a couple had gotten married and you had this

sort of factual situation and they both died, that is one thing; but people of this generation have a very different attitude towards property rights and

their relationship to each other, in relation to

matrimonial assets. I must say I would feel

reasonably confident, unless there was some strong

evidence to the contrary, that certainly well into

the late 70s she would have regarded everything

that she did as being some sort of a gift that she

very happily bestowed on him. It was never

intended to acquire any interest in the property.

Bryson 14 21/5/93

MR EVANS:  With respect, Your Honour, she may well have

regarded that the house was as much hers as it was

his and been offended by the suggestion otherwise.

DAWSON J:  And do we measure justice or unjust enrichment in

1930's terms or in 1990's terms?

MR EVANS:  The point at which the claimed interest is denied

is now, when the claim by the brother was denied

after her death.

GAUDRON J: Is that right, because I think there are really

quite different considerations if you say you

measure it after death.	You seem to slide between
the two.	You assert an interest that survived

death which must, on the constructive trust basis,

be referable to something unconscionable and then

you say, but the unconscionability is after death.

MR EVANS:  The unconscionable act is the denial of the

interest.

GAUDRON J: That is why I asked you earlier how d0 you reach

that position in the absence of something which

enables you to see a demand being made?

MR EVANS:  Her demand is made by her during her life by the

lodgment of the caveat.

GAUDRON J: At a time when her husband had Alzheimer's

disease?

MR EVANS: 

Yes, he could not respond - - -

GAUDRON J: 

And it was not pursued in this sense; she did

not, neither she nor her legal representatives then
took action in equity for a declaration or - - -

MR EVANS: 

She was then in a nursing home herself.

GAUDRON J: 

Nor did she seek such relief as she might have

got or such remedy as she might have obtained under

the Family Law Act by way of readjustment of

property interests?

MR EVANS:  No, she did not.

GAUDRON J: But you concede, do you, that you must show

something unconscionable before death?

MR EVANS: 

No, I do not, Your Honour.

GAUDRON J: 

You do not?

MR EVANS: 

In my submission, the unconscionability is the

denial by the husband's executors of the claim by
her heir.

Bryson 15 21/5/93

GAUDRON J:  So the equitable interest you assert is one in

the brother, not in the wife?

DAWSON J:  You do; you said so. You said that the unjust

enrichment is that of the Red Cross at the expense

of the brother.

MR EVANS: 

He stands in a position - wears the two hats, of

course, as her legal personal representative and as
her heir, but the unconscionable conduct is the
denial of the interest in his favour which, I would

submit, in her lifetime - - -

GAUDRON J: But you see, I do not think you can do that,

Mr Evans, because her brother's only interest is

one that comes by way of succession under the will and for there to be any interest, which is denied, it must be an interest which pre-dated her death,

otherwise it qoes not pass to him.

MR EVANS:  But that interest arises by virtue of her

contributions. It is an equity to which she is

entitled.

GAUDRON J: Yes, but it is one that arises by virtue of

unconscionability.

MR EVANS:  No, with respect, Your Honour, it is an equity

that arises by virtue of her contributions, and it

is unconscionable to deny it.

GAUDRON J:  So what you, in effect, put is a resulting trust

during her lifetime by reason of her contributions,

financial and otherwise?

MR EVANS:  Some people describe the resulting trust as only

arising from direct financial contributions to the

purchase and that anything else, contributions of

any other sort giving rise to a trust give rise to

a constructive trust.

GAUDRON J: If there is a resulting trust during her

lifetime, you do not need to go to

unconscionability thereafter; it survives.

MR EVANS:  No, that would mean, Your Honour, that the Court

would have to take the view that the contributions
which are recognized in what might be called a

Muschinski sense give rise to a resulting trust, just as much as direct contributions to the purchase price do. In my submission, the label given to the trust should not matter that much.

indirect contributions are now to be given the sa.,;e

recognition that direct financial contributions

traditionally have been given, then the nature of

the interest arising ought to be the same and the

fact that the direct financial contributions were

Bryson 16 21/5/93

and still are called a resulting trust and the fact

that the others give rise to a constructive trust

should not change the result.

GAUDRON J: But are you not then really right in the

heartland of intention?

MR EVANS:  With respect no, Your Honour. The resulting

trust arises from contributions to the purchase

price and gives rise to a presumed intention that

those contributions are made with the intent that

they secure a beneficial interest.	The
constructive trust arises -

GAUDRON J: Between husband and wife?

MR EVANS:	It can arise, and that certainly has been the case as recognized in Canada, although on the
unjust enrichment basis. But over a long period of
time, where the house has been the sole object of
her work, I would submit that she is entitled,
indeed, her legal personal representative is also entitled to press a claim for an equity in that
house, and it is not an equity that somehow
magically disappears with her death.

GAUDRON J: But that is not an unjust enrichment claim as

such, is it, or an unconscionable conduct claim?

MR EVANS:  I submit it is unconscionable to deny the claim,

in view of her contributions over time, and that by

the same token it could be said that his estate and
his executors are unjustly enriched at her expense

and the expense of her estate and her heirs.

The language used by the courts below, I would

also submit, fails to properly accord recognition

to contributions in the form of a homemaker.

DAWSON J:	We do not need to worry about the language they used. If they failed to accord recognition, that
is it.
MR EVANS:	And those references are Mr Justice Sheller at

page 64 of the application book, Mr Justice Samuels

at page 79 and the primary judge at page 2. Those

are my submissions, Your Honours.

DAWSON J: Thank you, Mr Evans. Mr Davies.

MR DAVIES:  Your Honours, all my friend has said only

highlights the main reason why special leave should
not be granted, and that is that really this is a

question of the facts of this case, based on the

established principles in Muschinski and

Baumgartner. It is clear from the majority judgments in the Court of Appeal that those

Bryson 17 21/5/93

principles were accorded the authority that they

have and that on the facts of this case - - -

GAUDRON J: It is not clear from that of Mr Justice Sheller,

is it, because he said there was no collapse of

the relationship so they do not apply.

MR DAVIES: That is precisely what Mr Justice Deane says in

Muschinski, Your Honour. In fact he says it eight

times in the course of that judgment, that there

has to be some unforeseen or premature collapse of

the relationship. That seems to be the very basis

of the unconscionable nature of whatever the act is

which gives rise to this constructive trust. This

application was made to the court, first, within
those principles and simply did not satisfy the

court, both at first instance and in the Court of

Appeal, because the evidence was so scarce about

precisely what the wife is supposed to have done,

particularly as Mr Justice McHugh said, her

contribution towards the acquisition of the

property because that is what the decisions, both

in this country in Calverley v Green talk about at

the relevant time is at the acquisition, and also

in Canada and New Zealand as well.

GAUDRON J: Is there not a real question in viewing

acquisition merely as the act of purchase or the

completion of purchase? Is that not one of the

difficulties in this area, particularly when we

know that very rarely, if at all, is there a sort

of body of money which pays out the entire

purchase price in one go, that is traceable just

to one person.

MR DAVIES:  Your Honour, that would be perfectly correct in

a majority of cases. The evidence is fairly silent

here, but tends to suggest that the purchase price

was paid. There was certainly never a mortgage

registered on the title and there is no evidence

that there was any form of a mortgage at all.	In
that situation, we have to look to the acquisition.	If it had been the case that the property had been
being paid off throughout the period of time, it might have been relevant to look to the fact that
Mrs Moate was at home looking after the house to
free up Mr Moate to go out and earn the money to
pay for that mortgage. But it is because of the
paucity of the evidence here that both the courts below felt that they were unable to come to the
view that her contribution brought her within what
Mr Justice Deane, and then the majority judgment,
in Baumgartner said about the unconscionability.

What my friend really has to say is that

because Mrs Moate lived with her husband for

SO years and looked after him and did the things

Bryson 18 21/5/93

that in those days wives did - and the only

evidence really is, except for some of the labour

she performed very early in the piece, that her

work was looking after him, not the house. It was

cooking and mending his clothes and so on. Now,

that goes well beyond anything that was said in

Muschinski or in Baumgartner. My friend then has

to get to the position that because they lived

together for 50 years, there should be some

doctrine in this country of community property,

based on a marriage or another established

relationship. And that is what the courts in this

country and in Canada and in England have said

simply does not exist in the common law of each of

those countries.

DAWSON J: It is getting close to it though, is it not?

MR DAVIES:  It is getting close, but the judgments are very

careful in this Court, both in Baumgartner and

Muschinski, to resist that, Your Honour.

Now, if my friend says that is what this Court should recognize, a community - - -

DAWSON J:  By that I did not mean to restrict myself to the

particular doctrines that are at issue in this case

either. In other words, there are other agencies which produce that situation or very close to it.

MR DAVIES:  There are, Your Honour. A number of the Acts of

the State Parliaments might be thought to be

bringing that closer. But if that is what my

friend is asking this Court to do, in effect to

recognize that there is such a common law in this

country, although it would appear not from past

decisions of this Court, this is a pretty bad case

in which to do it because the evidence is so scarce

it would be a very unsatisfactory vehicle for

trying to establish such a principle.

So, Your Honours, we say that it really is

only a matter that turns on its own facts.

Regrettably for. Mrs Moate's heirs, it failed,

although it gives rise to interesting problems in

relation to the equity surviving and

unconscionability where both the parties to the effective relationship are dead at the time the

matter is raised. Secondly, that it is just not

the appropriate vehicle at this time, if the Court

is to move on from the principles that

Mr Justice Deane first laid out. If Your Honours

please.

DAWSON J:  Do you want to say anything by way of reply,

Mr Evans?

Bryson	19	21/5/93
MR EVANS:	Yes, just briefly.	The principle

Mr Justice Deane stated in Muschinski of an analogy

with partnership and joint venture was, if you

like, a subset of a broader principle of

constructive trust where he said they could be

found by analogy on existing principles. If the

partnership analogy is to be applied as the correct

one here, then the Court should also consider what

is to happen on the dissolution of the partnership

on the death of both partners where, when it is a

domestic marital partnership, there is no clear

joint heir to the two of them. Should the estate

of one_partner benefit and the other not?

As far as Mrs Moate's work involving looking

after her husband only, Mr Justice Deane does talk

about support when talking about non-financial

contributions in Muschinski. And, finally, the

argument I put is not an argument for a doctrine of

community property but rather an argument for the

identification of the respective individual rights

of parties in property towards which they have both

contributed and which property must be seen as the

fruits of both their labours.

DAWSON J: Thank you, Mr Evans. The Court will retire

shortly to consider this matter.

AT 3.09 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.14 PM:

DAWSON J: While we would not adopt everything that was said

in the majority judgments in the Court of Appeal,
we think that, given the paucity of evidence, this

is not a suitable case for the grant of special

leave.

Special leave is therefore refused.

MR DAVIES:	I would ask for costs.
MR EVANS:	I have nothing to say.

DAWSON J: With costs.

AT 3.15 PM THE MATTER WAS ADJOURNED SINE DIE

Bryson 20 21/5/93