Buenaventura v Hinson

[1994] QCA 215

IN THE COURT OF APPEAL	[1994] QCA 215
SUPREME COURT OF QUEENSLAND	Appeal No. 218 of 1993
Brisbane
Before	Fitzgerald P. Pincus J.A. Davies J.A.
BETWEEN:
THERESITA BUENAVENTURA

(Plaintiff) Respondent

AND:

DOUGLAS CARLYLE HINSON

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/06/1994

This is an appeal by the defendant in a District Court action against a declaration that he holds a house property at Robina on the Gold Coast, or the proceeds of any sale thereof, in trust for himself and the plaintiff in the proportions of two-thirds to him and one-third to the plaintiff. Although in her pleading the plaintiff also claimed a beneficial interest in a house property at Mortdale, New South Wales, or the proceeds of sale thereof, that claim was not pursued. The learned trial judge made the declaration sought because he concluded that there was a common intention by the parties that both should have a proprietary interest in the house and that, in reliance on that common intention, the plaintiff acted to her detriment.

That is the way in which the case was argued both below and in this Court. See Grant v. Edwards [1986] 1 Ch.. 638; Green v. Green (1989) 17 N.S.W.L.R. 343. In her pleading the plaintiff also alleged that, during the periods of cohabitation referred to below, her income was used to pay all household and living expenses incurred by the parties, and that she provided the majority of the services associated with their day to day living and the upkeep of the two house properties. However neither allegation was proved and neither was pursued in argument.

The plaintiff and the defendant lived in a de facto relationship of husband and wife for two periods. The first of these was from about December 1980 to about July 1987 except for a period of about three months in 1986 when the plaintiff left the defendant but returned to him at his request. During this period they resided together in the Mortdale house which was owned by the defendant. The second period was from about February 1989 until about March 1990 during which they lived in the house the subject of the declaration. It was the plaintiff who terminated the relationship at the end of each of these periods.

The parties met in Manila where the plaintiff was working in the Peninsula Hotel. She was then aged 20 and the defendant was aged 45. During the course of further contact between them, including by telephone and letters, marriage was discussed and the defendant financed the plaintiff's trip to Australia. The parties then commenced to live together at Mortdale and the learned trial judge found that, although cultural and age differences, and perhaps other factors, put strains on the relationship, it might fairly be described as a stable one for approximately seven and a half years whilst they resided in that house.

During the period in which the parties resided at Mortdale both the plaintiff and the defendant were in full time employment. The defendant alone paid for the upkeep of the house which he had purchased with his own funds. The plaintiff used her income substantially for her own purposes. What she did not spend for those purposes she accumulated as savings.

There is little doubt that, during the time between the two periods of cohabitation to which we have referred, the defendant was keen to renew cohabitation with the plaintiff.

His move to Robina was, at least to some extent, motivated by a desire to be near the plaintiff, who was, at that time, working on the Gold Coast. This was in September 1988. By the time the defendant purchased the Robina house in that month, the parties were on civil terms and had discussed going out together again. The defendant had asked the plaintiff to look at the house before he bought it and she had looked at it, apparently only by driving past it.

The main evidence relied on by the plaintiff from which she said the court should infer the relevant intention of the defendant was a Christmas card sent by him to the plaintiff in December 1988 when the parties were on friendly terms but had not recommenced cohabitation. In that card the defendant relevantly stated: "My wish for Xmas is to have you back at our home.". Were it not for the evidence to which we are about to refer, we do not think that that statement could possibly be evidence of an intention to give the plaintiff a beneficial interest in the house which the defendant had purchased at Robina. Not surprisingly, he had, during the previous period of cohabitation, in conversation with the plaintiff, variously referred to the Mortdale house as "our home", "your home" and "my home"; each of which is an accurate way for an owner to describe his or her house to a spouse, de jure or de facto, family members or even other persons who reside in it with him or her.

However, the plaintiff also relied on an answer given by the defendant during the course of cross-examination about that card. The question and answer were as follows:

"What you were trying to do there; convince her to come back to the jointly owned home? -- Yes, I would say so, yes."

The question, of course, had two quite distinct elements; that the defendant wanted to convince the plaintiff to come back and that, if she did, the home would be jointly owned.

No attempt was made by the cross-examiner to separate those elements or by the defendant's solicitor, who represented him in the trial, to insist upon it. The learned trial judge intervened to ask the defendant if he appreciated the question and the defendant replied that he did. The learned trial judge then asked the question again, in the same terms, without separating the two elements, and again the defendant replied in the affirmative. However, affirmation of the second element of the question was inconsistent with the whole tenor of the defendant's prior evidence and was plainly rejected by him in re-examination. We do not think that he can be taken to have affirmed that element. There was, in our view therefore, no sufficient evidence of the defendant's intention as submitted and as found by the learned trial judge. Although that conclusion is sufficient to dispose of the appeal in the defendant's favour, we propose to say something of the other elements of the cause of action found by his Honour to have been proved.

In concluding that the plaintiff was entitled to a beneficial one-third interest in the Robina house, the learned trial judge must have found a common intention, expressly or by implication, that she should have a one- third interest. No express agreement was ever asserted or established. His Honour appears to have inferred the intention from a statement which the defendant made, whilst the parties were cohabiting at Mortdale, that when he had his will drawn up he would leave one third of that property to the plaintiff if they were still together when he died.

In that context he agreed with a question put to him in cross-examination at the trial that he felt that the plaintiff was entitled to a third of the property. By this we understand him to mean that he thought she deserved to receive a one-third interest in his will. We do not think that his Honour was entitled to use this evidence in aid of a conclusion that, in December 1988, the defendant intended that the plaintiff should receive an immediate beneficial interest of one-third of the Robina property if she should come to live with him. On the contrary, the statement is inconsistent with an intention to confer any immediate beneficial interest and none was, in the end, asserted in the Mortdale house.

Nor did the plaintiff ever assert that she was induced to return to live with the defendant by an understanding that she would receive a beneficial interest in the Robina property. On the contrary, when asked, in effect, what induced her to return to live with him, she said that it was a promise of marriage, a fresh start, and children if that is what she wanted. As to the last, the plaintiff had fallen pregnant during the first period of cohabitation but had aborted the pregnancy at the defendant's request; there was a further abortion, also at the defendant's request, at Robina.

As to detriment, the plaintiff said that during the second period of cohabitation she contributed $500 to the painting of the Robina house, the total cost of which was $3,500. She also said that she redecorated the house but the only particular which she gave of this was buying dried flowers for it. She did not assert any other contribution to the maintenance or upkeep of the house and, as at Mortdale, the parties shared the domestic work. None of this conduct is any more consistent with conduct in reliance on an understanding that she would have a beneficial interest in the property than with a fond relationship which undoubtedly existed for at least some part of the second period of cohabitation.

The appeal must therefore be allowed, the declaration made by the learned trial judge should be set aside and, in lieu thereof, there should be judgment for the defendant with costs here and below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 218 of 1993
Brisbane [Buenaventura v. Hinson]
BETWEEN:

THERESITA BUENAVENTURA

(Plaintiff) Respondent

AND:

DOUGLAS CARLYLE HINSON

(Defendant) Appellant

____________________________________________________________

_____

FITZGERALD P.

PINCUS J.A. DAVIES J.A.

____________________________________________________________

_____

Judgment delivered 16/06/1994

REASONS FOR JUDGMENT - THE COURT
____________________________________________________________

_____

APPEAL ALLOWED. DECLARATION MADE BY TRIAL JUDGE SET ASIDE
AND IN LIEU THEREOF, JUDGMENT ENTERED FOR THE DEFENDANT WITH
COSTS OF THE APPEAL AND BELOW.
____________________________________________________________
_____

CATCHWORDS: TRUSTS - CONSTRUCTIVE TRUST - de facto relationship - appellant purchased house during period intervening between separate periods of cohabitation - whether evidence of common intention that appellant held house on trust for himself and respondent - whether evidence to support inference of common intention that respondent receive an immediate one-third beneficial interest - detrimental reliance

Counsel:  T. North for the Appellant
P.R. Theobald for the Respondent

Solicitors: Hill & Taylor t/a for Eric Muir for the

Appellant

Bells for the Respondent

Date(s) of Hearing:  8 June 1994