Burton v Prior - [2019] NSWSC 518

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Burton v Prior [2019] NSWSC 518
Hearing dates: 12, 13, 14, 15, 16 February 2018; 19 March 2018
Decision date: 08 May 2019
Jurisdiction: Equity
Before: Kunc J
Decision:
Property held on resulting trust in proportions of contributions to purchase price; Plaintiff entitled to occupation rent

Catchwords:
EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Family and domestic relationships
FAMILY LAW — Property — De facto relationship — Adjustment of property interests — Property (Relationships) Act 1984 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Family Law Act 1975 (Cth)
Limitations Act 1969 (NSW)
Property (Relationships) Act 1984 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299
Austin v Hornby [2011] NSWSC 1059
Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044
Baumgartner v Baumgartner (1987) 164 CLR 137
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242
Crown Estate Commissioners v Dorset County Council [1990] Ch 297
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fulton v Fulton [2014] NSWSC 619
Green v Green (1989) 17 NSWLR 343
Jonah v White [2011] FamCA 221; (2011) 258 FLR 236
Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964
Piras v Egan [2008] NSWCA 59
Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492
Short v Crawley (No. 30) [2007] NSWSC 1322
Steinberg v Federal Commissioner of Taxation [1975] HCA 63; (1975) 134 CLR 640
Temiha v Sadebarth (NSWCA; 13 May 1997; unreported)
Tory v Tory [2007] NSWSC 1078
Warner v Hung, In the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
William Bkassini v Sonya Sarkis [2017] NSWSC 1487
Texts Cited: Spencer, Bower and Handley, Res Judicata, 4th edn, LexisNexis 2009
Category: Principal judgment
Parties: Marea Therese Burton (Plaintiff)
John David Prior (Defendant)
Representation:
Counsel:

K J Young (Plaintiff)
A Power (Defendant)

Solicitors:
Dormer Stanhope (Plaintiff)
C J Boyd Solicitors (Defendant)

File Number(s): 2014/267512
Publication restriction: No

Judgment

Summary

The basic facts of this case are simple. Beyond those simple facts, and a measure of agreement about financial contributions, almost everything else about what was once some kind of relationship between the plaintiff, Ms Marea Burton (“Marea”) and the defendant, Mr John Prior (“John”), has been put in issue in the bitter dispute between them.
Without any disrespect, in these reasons the Court will refer to the parties and other witnesses by their given names. Ms K J Young of Counsel appeared for Marea. Ms A Power of Counsel appeared for John.
The basic facts are these. Marea and John began a relationship in the early 1990s. In mid-1994 Marea became pregnant with their child. In November 1994 John and Marea successfully bid for a block of land at Erskineville (the “Property”). The purchase price was $120,500. Of that purchase price, $40,000 was funded by a bank loan to John and Marea. The balance was paid from a loan (to whom exactly was a central issue) by John’s father, Robert Prior (“Robert”).
Marea and John’s daughter – Isabel – was born on 16 February 1995. On 22 February 1995 Marea and John became registered as proprietors of the Property as joint tenants. John made virtually all the mortgage repayments. They took out a further joint loan to build a house on the Property in which they lived with Isabel from the time the house was completed in about July 1997 and subsequently refinanced that loan for various reasons, including to meet living expenses.
Marea and John’s relationship ended when Marea and Isabel left the Property on 18 February 2010. Isabel lived with Marea until April 2011, after which she returned to live with John at the Property. In early 2015 John severed the joint tenancy between him and Marea in relation to the Property and each now holds a half share interest in the Property as tenants in common.
These are not the first proceedings to consider the parties’ relationship. In 2011 Marea filed proceedings in the Federal Circuit Court (the “FCC”) seeking property orders against John (the “FCC Proceedings”). In April 2014, Harman J held that Marea and John were not in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) (the “FLA”) at or at any date subsequent to 1 March 2009, so that the Court did not have jurisdiction to entertain any application under Part VIIAB of the FLA (the “FCC Judgment”).
Marea commenced these proceedings in 2014 after the FCC Judgment. As it was put by Ms Young, Marea’s basic claim is for an equal division of the Property with a further adjustment in her favour for occupation rent. (On 5 February 2018 I made an order to the effect that the quantum of any occupation rent be determined separately from and after the determination of all other issues in the proceedings.) To that end she seeks an order that trustees for sale of the Property be appointed under s 66G of the Conveyancing Act 1919 (NSW) (the “CA”) with the proceeds of sale being used to pay out the existing loan, and settle the finances between both parties.
John’s defence has been to deny Marea’s claims and (by cross-claim) initially to allege an agreement between him and Marea pursuant to which he alleged Marea held her share of the Property on trust for him (the “Co-Ownership Agreement”). He also says that the FCC Judgment creates certain estoppels. As I explain in paragraph [20] below, John amended his cross-claim on the last day of the hearing to allege (in reliance on the decision of the High Court in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242) (“Calverley”) that their respective equitable interests in the Property were in accordance with their contribution to the purchase price – 84.03% to John and 15.97% to Marea. The abandonment by John of his case based on the Co-Ownership Agreement means that the defences to that case raised by Marea also fall away.
Marea has responded that if the Court comes to the view that she and John hold their interests in the Property other than equally, those interests should be adjusted by reference to several different legal analyses, including under the Property (Relationships) Act 1984 (NSW) (the “PRA”). She has also raised various limitation arguments in response to John’s cross-claim.
The nature of their relationship was a matter of vigorous contest between the parties and the Court heard vastly different accounts from the two protagonists. Marea submitted that she and John were in a loving, de facto relationship from 1992 until 2010, when she voluntarily moved out of the Property. Her case was one of a happy relationship, involving family holidays, shared finances and two parents raising their daughter together.
Alternatively, John has maintained that there was no personal relationship with Marea, and that they never lived together. John said that he lived in a separate part of the Property to Marea, that he never lived with Marea prior to purchasing the Property, and the extent of the relationship after Isabel was born was what was described as “being co-owners of a property, and otherwise parents of Isabel, not romantic partners”.
A particular difficulty in assessing the parties’ claims and counter-claims is that I have concluded that neither Marea nor John is a reliable witness.
In Marea’s case the main (but not the only) reason for that conclusion is that, in what she now presents as a contrite admission, between at least 1995 and 2004 she lied to Centrelink, the Australian Taxation Office and other government agencies representing that she was a sole parent as a result of which she obtained the sole parent pension and rental assistance. She has now acknowledged illicitly benefiting in an amount of approximately $60,000 which she is in the process of repaying. Such a deliberate course of deception over at least nine years casts real doubt over Marea’s credibility.
In John’s case the main (but not the only) reasons are the inconsistencies between his evidence in the FCC Proceedings and in this Court and the generally unsatisfactory and evasive nature of his evidence in cross-examination in these proceedings.
Evidence was adduced by each party from friends and family of their observations of Marea and John. That evidence is of some, but limited value precisely because they are “outsiders” and their evidence is not always consistent. The only other “insider” is Isabel. She gave evidence which, notwithstanding a strong attack on her credit by Ms Young, the Court accepts.
The Court’s conclusions may be summarised as follows:

The funds loaned by Robert that were used to buy the Property were advanced to John alone. Marea had no liability to Robert for those amounts. She was, however, jointly liable with John for the $40,000 bank loan that had also been applied to the purchase price.

Applying the principles in Calverley, John and Marea’s equitable interest in the Property is the proportion to their contributions to the purchase price: 15.97% to Marea and 84.03% to John.

The Court will not permit reliance by Marea on any limitation defence to John’s case brought in reliance on Calverley.

The Court grants leave to Marea to bring her claim under the PRA. However, the Court is not satisfied that John and Marea were in a domestic relationship for more than a few weeks after Isabel was born. Even if the Court were satisfied they were in a domestic relationship for an extended period of time, in the exercise of its discretion the Court would not adjust their equitable interests in the Property.

Were it relevant, the FCC Judgment does not give rise to a res judicata or issue estoppel.

There is no evidence to support Marea’s case alleging an equitable estoppel.

There was no joint endeavour between John and Marea so as to warrant the imposition of a constructive trust in relation to the Property. Even if there had been, the Court would decline to do so in the exercise of its discretion.

Absent the intervening agreement of the parties, trustees for sale of the Property will be appointed.

Marea is entitled to an occupation rent in respect of the Property, but the calculation of that rent will have to take into account John’s equal right to use the Property.

Two preliminary points

Before turning to the credit of the key witnesses, it is convenient to deal with two preliminary matters.
First, each party called witnesses who were not required for cross-examination by the other party (to be distinguished from where evidence is adduced by leave – see paragraph [114] below). Each party seems to have been content for the Court to make of those witnesses “what the Court will”. I have not been assisted by this approach, notwithstanding it may be the product of forensic decisions and a desire to limit expense by not prolonging what was already a lengthy trial.
I have approached that evidence on the basis that while the absence of cross-examination enables the Court to consider that evidence with a greater degree of assurance than might otherwise have been the case, it does not mean that the Court must accept that evidence: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586–8; Temiha v Sadebarth (NSWCA; unreported; 13 May 1997). However, the non-acceptance of such evidence must be clearly explained.
Second, on the final day of the hearing – being the day on which the parties addressed their written submissions – the Court granted John leave to amend his cross-claim over the opposition of Marea. This amendment abandoned the Co-Ownership Agreement alleged by John and sought a declaration (in reliance on Calverley) that their interests in the Property were in accordance with their contribution to the purchase price – 84.03% to John and 15.97% to Marea. I will next set out the reasons for granting that leave.
Amendment is governed by s 64 of the Civil Procedure Act 2005 (NSW) (the “CPA”), s 64(2) of which provides that “subject to section 58 [which incorporates the overriding purpose and the dictates of justice set out in CPA ss 56 – 58], all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings”.
One of the most important “real questions” raised by the proceedings was the extent of the parties’ interests in the Property, and for that reason the amendment was clearly necessary in the sense required by s 64(2). The amendment therefore had to be allowed unless there was a discretionary reason not to do so. There was no such reason because the issue of a resulting trust based on the principles in Calverley had been a well-recognised “elephant in the courtroom” for the whole hearing. Most importantly, Marea’s side was well aware of it and, as I develop in the next paragraph, was unable to point to any prejudice if the amendment were allowed.
In considering whether there was any prejudice to Marea by allowing the amendment, and coming to the view that there was none, I took into account the following:

John’s original cross-claim alleged the existence of the Co-Ownership Agreement, alleged non-compliance with it and concluded, in paragraph 13, that Marea “held her interest in the [Property] in trust for John”. On 14 August 2015 Marea’s solicitors had sought particulars of the cross-claim “as to paragraph 13, please clarify the nature of the trust claimed and the basis for alleging that the same exists”. This drew the response “the trust arises on the principles set out in [Calverley]”.

Ms Young’s opening outline of submissions, when setting out “the parties’ respective positions” stated (at [20]): “Mr Prior’s ‘all or nothing” Defence seeks in effect to avoid the ordinary application of the principles of [Calverley], whereby being on a mortgage ordinarily counts as a contribution to the purchase price…”. Furthermore, those submissions include a section headed “Issue 3: Does an orthodox Calverley v Green trust (not pleaded) arise in the context of the alleged Co-Ownership Agreement?”, part of which (paragraph [116]) includes the submission that even if Calverley applied, the parties were jointly liable on the mortgage and the loan from Robert. I return to the importance of this latter assertion in paragraphs [175] and following below.

Ms Power’s opening outline of submissions contains a heading “plaintiff’s share of the Property held on trust for the defendant, in the proportions in which they contributed the purchase moneys” followed by 11 paragraphs setting out John’s case on contributions to the purchase price, extensively quoting from Calverley, denying that there could be any presumption of advancement between persons in a de facto relationship and concluding “by reason of the above, the defendant claims a trust in respect of the Property in the proportions to which the parties contributed to the purchase moneys”.

Ms Young’s final 116 page “Plaintiff’s Consolidated Submissions” which formed the basis of her submissions on the last day of the hearing again asserted (at paragraph [24]) joint liability on both the bank loan and the loan from Robert so that the parties’ contributions to the purchase price were equal and later (at paragraph [240]) expanded that point with an express reference to Calverley.

When I asked Ms Young what she would have done differently had the amendment been made earlier, she accepted that she had fully cross-examined as to whether there had been any agreement between Marea and John as to how the Property would be held, but that notwithstanding that she understood there was reliance on Calverley, she “would have focused a little bit more on the contributions to the purchase price” (T398:40-41). I do not accept there was really any room for such “a little bit more focus” because there were only two aspects to the contributions. It was common ground that Marea and John were jointly liable on the bank loan. The question of who was liable on the loan from Robert had been fully explored in the evidence, cross-examination and submissions with Marea unequivocally contending that she was jointly liable to Robert with John.

I accept that there was some basis for the confusion professed on behalf of Marea. In particular, it was not until the end of the case that John’s side appeared to understand and accept that if the agreement he alleged was not found, the effect of Calverley was that Marea would have some interest in the Property to reflect her liability under at least the original bank loan. My impression during the hearing was that each side, for its own forensic reasons, was trying to avoid having to grapple with Calverley because it gave rise to the possibility of a result neither of them wanted, being less than a 50% interest in the case of Marea and less than 100% in the case of John. Nevertheless, I was well satisfied that Ms Young had conducted her case throughout on the basis that her client’s answer to any reliance on Calverley was always that the legal and equitable interests were in any event equal because John and Marea were jointly liable both to the bank and to Robert.

Findings of fact

The following narrative sets out the Court’s basic findings of fact. For the most part they are matters that were not in dispute or at least not seriously in dispute, including matters based on contemporaneous records. Findings in relation to matters that were relevantly and seriously contested are cross-referenced to that part of the judgment where reasons for the finding are given.
Other than in relation to contributions to the purchase price, I have not included in what follows specific findings in relation to the parties’ respective financial contributions to the Property including amounts paid or agreed as paid and amounts received or agreed as received (for example, mortgage payments and rental receipts). These were agreed between the parties and set out in Ex 16D, with the parties agreeing they were liable to account to each other in the proportions they are found to hold the Property. I do, however, make reference to specific agreed amounts as are relevant in specific parts of these reasons.
For the purposes of these proceedings, both John and Marea were at all material times:

Residents of New South Wales;

As from 22 February 1995, registered proprietors of the Property as joint tenants with each other; and

As from 18 March 2015 and still, the registered proprietors of one half share in the Property as tenants in common with each other.

Although John and Marea first met during the 1980s, their relationship for the purposes of the proceedings before this Court began in the early 1990s. John was a composer and musician with his own bands. Marea was a singer.
During the early 1990s, John and Marea entered into a personal relationship with each other.
At this time, John was living in a unit under his parent’s home at Mosman (the “Mosman Property”). Marea was living in Cremorne with flatmates.
In May 1992, Marea moved from her unit in Cremorne to a double storey duplex at Cammeray (the “Cammeray Duplex”).
In September 1992, following a dispute with his existing music studio, John moved his music equipment to the ground floor of the Cammeray Duplex. As a result of moving his music equipment into storage at Marea’s residence, John paid $150 in rent per week to Marea.
From 9 July 1993, the rent John paid for the Cammeray Duplex increased from $150 to $300 per week. At this time, John and Marea were in a sexual relationship. According to the tax returns of John’s company Mammal Music Pty Limited (“Mammal”), after its incorporation Mammal continued to pay $300 a week in rent until October 1996.

The circumstances of Marea and John at the Cammeray Duplex are further dealt with in paragraphs [171] and following below.
In February 1994, Mammal was incorporated, with both John and Marea becoming directors of the company. John held 99 shares and Marea held 1 share. In a letter to Centrelink in 2001 Marea said that she only became a director “as a favour because of the existing legislation for companies at the time”.
Following incorporation, both John and Marea were authorised signatories to Mammal’s bank account and were able to withdraw money independently of one another.
In mid-1994, Marea fell pregnant with John’s child.
In October 1994, John and Marea applied for a home loan with National Australia Bank (“NAB”). The loan was for $40,000, and both parties were to be listed on the mortgage.
On 11 November 1994, Robert advanced to John the sum of $20,000 for the purpose of purchasing a new motor vehicle. This loan was expressly to John, and a letter was written by Robert to John outlining the terms and conditions of the loan:

“11 November 1994
Dear John
Today I deposited $20,000 in your National Bank account.
This loan is for 5 years and 7 months, interest free, repayable by monthly instalments of $300 into my Commonwealth Bank account 2207-XXXX. I will give you a book of deposit forms.
Yours,
Bob”

In November 1994, a Holden Commodore was purchased in the name of Mammal. The car was paid for using the money loaned by Robert to John.
On 29 November 1994, Robert provided John with an interest free loan of $10,000 for the deposit for the Property. This loan was given in the form of a cheque. The cheque was initially dishonoured and later reissued. It was deposited into the Mammal bank account.
On 30 November 1994, John and Marea successfully bid at auction to buy the Property, which was then a vacant block. The purchase price was $120,500.
On 30 November 1994, John paid the deposit for the Property of $12,050 from the Mammal account, using the loan of $10,000 provided by Robert. There is a handwritten notation on the bank record of Mammal following the loan from Robert. This handwritten notation states “loan to John Prior (Director)”. This notation was written by Marea.
On 22 December 1994, the stamp duty of $2,711.50 for the Property was paid from funds in the Mammal account. There being no suggestion otherwise, and according with the probabilities given no personal funds of Marea were applied to the purchase of the Property, the Court also accepts that John funded the subsequent payment of $2,000 in solicitors’ fees.
On 16 January 1995, John and Marea entered into a formal written loan agreement with the NAB whereby the NAB agreed to lend them $40,000 towards the purchase price of the Property.
On 9 February 1995, Robert also provided John with a bank cheque for $68,450 to be applied to the purchase of the Property. The Court finds that this loan from Robert was made only to his son John. As such, Marea was not liable to repay the loan. The reasons for this finding are set out at paragraphs [175] and following below.
On 9 February 1995, John paid the balance of the purchase price of the Property into the account of Owen Trembath and Associates, who were acting on the purchase. The receipt issued by Owen Trembath and Associates records $68,450 was “received from John Prior”, “being payment to State Rail Authority [the vendor] for purchase of” the Property. There was no record of any payment being received from Marea.
On 16 February 1995, Marea gave birth to Isabel. John was with Marea at the hospital.
On 22 February 1995, John and Marea were registered as the proprietors of the Property as joint tenants with a mortgage in favour of the NAB. In relation to purchasing the Property, the Court has found John and Marea purchased the Property for the sum of $120,500. The loan of $40,000 from the NAB, which was taken out in both John and Marea’s name, paid part of the purchase price of the Property, with the outstanding amount covered by the loan from Robert with a small balance from John through Mammal. Marea did not contribute any of her own capital to the purchase of the Property.
At the time of Isabel’s birth, an agreement was made between John and Marea to register their daughter with the surname Burton-Prior.
Despite this agreement, Marea registered Isabel with the Registrar of Births, Deaths and Marriages with the surname Burton. Furthermore, when completing Isabel’s birth certificate, Marea did not list John as Isabel’s father.
There was no discussion between the parties at the time of Isabel’s birth or at any other relevant time about what financial or other contribution each expected the other to make in relation to their living arrangements.
Marea’s 1995 tax return lists her as being a single parent and not in a de facto relationship.
John’s 1995 tax return lists Marea as his spouse, and the Cammeray Duplex as his residential address.
Shortly following Isabel’s birth, Marea started receiving single parent benefits from Centrelink. She received these benefits until 2004. Over the nine years of receiving such benefits, Marea received $61,565.27.
On 1 June 1995, John applied to South Sydney Council for development approval for the construction of a private residence on the Property. John sent in this application with a letterhead specifying the Cammeray Duplex as his address, and listed Marea’s telephone number at the Cammeray Duplex as his contact number.
In September 1995, John, Marea and Isabel all went on a holiday together to Daydream Island.
On 21 September 1995, both John and Marea applied for building approval from South Sydney Council for the Property. At this time, John listed his address as being at the Mosman Property.
On 9 December 1995, Robert gave John this note:

“9th Dec 1995
Mosman

Dear John,
This is to confirm my loans to you, to date:
11/11/94   Deposited to you NAB A/C for car         $20,000.00
29/11/94   Cheque – deposit on land              10,000.00
9/2/95      Bank cheque – for land              68,450.00
$98,450.00

This amount is to be repaid over 10 years, interest free. Repayments are to be $820 per month, commencing 1st January 1996.
I would appreciate a letter from you (or you and Marea or Mammal – depending on what your personal arrangements are) confirming the above.
My note of 11/11/94 is superseded by this.
[Robert’s Signature]”

There was disagreement as to the date the note was sent and whether the letter which it invited was ever sent. The Court finds that the note was given to John on or about the date it bears and that no confirmatory letter was sent in response. It follows that John was solely responsible to Robert for repayment of the loans. The reasons for this finding are set out in paragraph [175] and following below.
On 29 May 1996, John and Marea made an application to modify the building approval for the Property.
On 9 August 1996, a repayment of $4,000 was made in cash to Robert from the Mammal account.
On 19 August 1996, John and Marea’s modified plans for the Property were approved by South Sydney Council.
On 26 August 1996, both John and Marea entered into a contract with Fernbran Constructions, for the construction of a residence on the Property.
In May 1997, a further $240,000 was borrowed from NAB to pay the cost of building on the Property. This loan was again taken out in the names of both parties.
Construction took place between August 1996 and July 1997. A residence was built comprising a terraced house, and a studio. The studio was connected by a hallway to the house.
In or about July 1997, John, Marea and Isabel moved into the Property. Marea and Isabel moved into the residential part of the Property, while John resided in the studio. Paragraphs [153] to [159] and [238] below explain this finding.
All council rates, as well as electricity, gas and water utilities, were in both John and Marea’s names.
In October 1997 John signed and issued a rental receipt for Marea on behalf of Mammal. The receipt was issued for the period of time from 9 September 1997, until 9 October 1997, and was issued for the amount of $525.
On 20 January 1999, John and Marea decided to refinance the NAB loan with Perpetual Trustee Australia Limited (managed through Aussie Home Loans (“AHL”)). This account was in the names of both John and Marea. This loan was for $275,000. The previous NAB loan was paid out.
On 18 March 1999, a repayment of $10,000 in cash was made to Robert, from the Mammal account.
In September 1999, John, Marea and Isabel went on a holiday to Port Macquarie, where they visited Marea’s parents.
During the period from 3 February 2000 until 26 August 2003, $143,000 was drawn down from the AHL facility. This was agreed to by both parties. The money drawn down from the loan was subsequently paid to Mammal and appears to have been applied, at least in part, to living expenses.
In 2001, Marea resigned as a director of Mammal.
In August and September 2001, John and Marea went to Europe and the United States together. Isabel did not join them for this trip. At this time, John was added as an additional cardholder to Marea’s Commonwealth Bank Mastercard.
With John being added as an additional cardholder to Marea’s Commonwealth Bank Mastercard, their finances became further intertwined. John would use the credit card in Marea’s name to pay for various expenses, and would subsequently use the finances of Mammal to repay Marea.
This arrangement lasted until approximately 2007. John, through the Mammal account, would write a cheque to Marea repaying any debts, and what he thought was half of any shared costs. However, the reality of this arrangement was John would pay the entirety of Marea’s credit card bill, paying for her personal expenses out of the Mammal account.
In addition to paying for the entirety of Marea’s personal expenses, these payments also included expenses in relation to Isabel.
In October 2001, John, Marea and Isabel visited Marea’s parents in Port Macquarie.
On 21 November 2001, a repayment of $10,000 in cash was made to Robert from the Mammal account.
In July 2002, Marea and Isabel went on a holiday to Mount Hotham. A few days later, John flew in and joined them.
During the period from December 2002 until 2004, John commenced legal proceedings against the performer Iota.
In September 2004, John, Marea and Isabel went on a holiday to Thredbo together.
From 2004 part of the Property was leased out as a short term furnished rental property. All income received was deposited into the Mammal account. Mammal then used this money to pay the mortgage repayments on the Property.
Renovations in the studio area took place from 2004 to 2008. The agreed contributions for this form part of Exhibit 16D and were paid for by John.
In 2005, Marea returned to casual employment with Megamart as a transaction officer.
In 2006, Marea commenced work with the ABC as a telephonist.
On 7 March 2006, John and Marea applied for a principal increase in their AHL loan of $40,000. The loan was approved.
In December 2006, John lost his legal proceedings against Iota and was ordered to pay the costs of the other party, a sum in excess of $70,000. At this time, Marea removed John as an additional cardholder to her Commonwealth Master Card.
In December 2006, John, Marea and Isabel went on a holiday to a beach side property at Old Bar with Catherine and David Titmarsh and their children, Joel and Ella.
From December 2006 until February 2009, Raine and Horne managed the leasing of part of the Property. Rental income was paid into the Mammal bank account, which subsequently paid off mortgage repayments.
Whilst the residence part of the Property was being leased out, Marea and Isabel lived in a part of the studio with John: they were downstairs and John in a small upstairs area. While John, Marea and Isabel all shared the studio, John and Marea did not share a bedroom or a bed.
In early 2006, Marea leased an apartment in Newtown. This was done so that Isabel was in the catchment area to entitle her to attend Newtown Performing Arts High School.
In March 2007, John withdrew his permission for Marea to use Mammal’s accounts to pay her credit card bills.
On 7 November 2007, John and Marea refinanced their home loan with the ANZ and increased the principal of the loan to $350,000. The AHL loan was paid out and a new ANZ joint loan was secured by way of mortgage over the Property. This included a payment of $66,389.89 being paid into a joint ANZ Access Advantage Account in the name of both John and Marea. This money was subsequently transferred into the Mammal account. This money was then used to pay for the legal costs in the Iota proceedings.
On 18 February 2010, Marea and Isabel left the Property and moved to Canterbury. Isabel continued to live with Marea from 18 February 2010 until April 2011. Isabel then returned to live with John at the Property and continued to do so at the time of the hearing.
In 2010, Marea commenced a new relationship with a man named Matt. At the time of the hearing Marea and Matt were living together at Tennyson Point.
In 2010, a solar panel system was installed on the Property as part of the NSW Government Solar Panel Scheme.
On 28 March 2011, Marea filed an Initiating Application in the FCC seeking property orders against John.
On 25 December 2012 Robert died.
In January 2014, John terminated the leasing agent agreement with Raine and Horne and managed leasing the Property directly with tenants.
On 11 April 2014, Judge Harman handed down the decision of the FCC that John and Marea were not in a de facto relationship at or after 1 March 2009 and, therefore, that court had no jurisdiction to determine Marea’s property claim.
On 17 February 2015, John lodged a Transfer Severing Joint Tenancy in respect of the Property with NSW Land & Property Information.
On 18 March 2015, that transfer was registered such that the joint tenancy in respect of the Property was severed. Marea and John are each now the registered proprietor of a half share in the Property as tenants in common.

Legal principles as to fact finding and credit

The parties agreed that I should approach the task of fact finding in accordance with principles which I first articulated in Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964. Those principles are as follows.
First, at the forefront of the Court’s approach has been the oft cited statement of McClelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318-319:

Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as “misleading”) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction (1995) 49 NSWLR 315 at 319 rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.

Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, In the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56:

48. Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account:
●   the nature of the cause of action or defence;
●   the nature of the subject matter of the proceeding; and
●   the gravity of the matters alleged.
When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2).

Third, there is the statutory successor of the rule in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in s 140 of the EA:

140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.

Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest.
Fifth, evidence of independent witnesses, i.e. persons who have no reason to be partisan, may be decisive in resolving the conflicting evidence of interested parties.
Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness’ evidence in its entirety. This approach was expressed by O’Loughlin J in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1:

118 Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions.

…
121 A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected.

Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings:

155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.
156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].

Eighth, disbelieving a witness that “X” was the case does not mean that “not X” has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation [1975] HCA 63; (1975) 134 CLR 640 at 694 (citations omitted):

The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd [1911] HCA 34, (1911) 13 CLR 230, at p 241 ; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p 21 . It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail [1905] HCA 25, (1906) 2 CLR 684, at p 698 ; Malzy v. Eichholz (1916) 2 KB 308, at p 321 ; Ex parte Bear; Re Jones [1945] NSWStRp 50, (1945) 46 SR (NSW) 126, at p 128 ), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King [1924] HCA 9, (1924) 34 CLR 153, at p 158; Tripodi v. The Queen [1961] CHA 22, (1961) 104 CLR 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell (1961) WAR 103, at p 109 .

Ninth, the way evidence that should be treated that is not the subject of cross-examination when cross-examination was required (not the situation in this case – see paragraph [18] above) was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619:

111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5].

Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. This case has some similarities to the family dispute considered by Robb J in Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said:

187. 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.

Findings as to credit - Marea

Marea’s credit was one of the key issues in this case. Marea was extensively cross-examined, with the main issue of her credit arising from her own admission that she knowingly and consistently made misrepresentations to various government bodies to gain a financial advantage. John submitted that this and other matters to which I refer below meant that Marea’s uncorroborated evidence should not be accepted.
It was submitted for Marea that she had candidly acknowledged her lies to government authorities and was now making amends. Her evidence in these proceedings was said to be honest, rational and straightforward. She had made admissions against interest, including in relation to the letter allegedly sent to Robert (see paragraph [192] below).
For the reasons which follow I am unable to accept Marea as a reliable witness.
Marea consistently represented herself as a single parent and not in a de facto relationship with John for the purposes of obtaining Centrelink benefits and tax concessions. Marea received financial benefits from Centrelink from 1995 until 2004.
As a result of these representations, Marea received a benefit in excess of $60,000. She is currently paying this debt back to Centrelink. Whilst Marea did not receive any further payments from Centrelink from 2004, she continued to make representations to Centrelink that she was single and not in a de facto relationship until 2010. By then she was in a relationship with Matt. However, I also accept John’s submission that she had come to the realisation that if she were to have any chance of obtaining a property settlement from John, commencing those proceedings in 2011, she would have to confess and attempt to avoid the consequences of her long deception.
Marea also made similar representations to the Australian Taxation Office in various instances.
In 1995, just months after Isabel had been born, Marea lodged her tax return with the Australian Taxation Office and did not list a spouse or de facto partner.
In 2001, Marea lodged her tax return and again did not list a spouse or de facto partner.
Marea further failed to list a spouse or de facto partner in 2005, 2006, 2007, 2008, 2009 and 2010. These are all years in which Marea has told this Court that she was in a de facto relationship with John.
Additionally, in both 2005 and 2006, Marea lodged her tax return with her address listed at Darley Street, Newtown. This was despite the fact that during this time, Marea says she was living at the Property.
For the entire period Marea claims she was in a de facto relationship with John, she failed to inform the Australian Taxation Office, or Centrelink. Alternatively, Marea consistently represented herself as being single to these organisations.
Additionally, statements were also made by Marea to New South Wales TAFE and Medicare which also suggested Marea was single and not in a de facto relationship throughout the period she now says she was with John.
Following the birth of their daughter, an agreement was reached between both John and Marea that Isabel’s surname would be “Burton-Prior”. Both John and Marea have accepted the existence of this agreement. However, when registering Isabel’s surname, Marea did so as just Burton.
Furthermore, Marea declined to nominate John as the father of Isabel on Isabel’s birth certificate. This omission of leaving John off Isabel’s birth certificate as her father lasted for over 16 years.
Similarly, Marea did not list John as Isabel’s father in Isabel’s Health Record Book, and did not identify John as Isabel’s father to Isabel’s schools.
Marea also made misrepresentations about her residential address to Newtown Performing Arts High School. Marea stated she lived at Darley Street, which was incorrect. She did so for the purposes of Isabel gaining admission into the school.
This consistency of her misrepresentations was put to Marea in cross- examination (T106:6-34):

“Q. So, all of the statements to the ATO, to Centrelink, to New South Wales TAFE, to Births, Deaths and Marriages and to Medicare, they’re all completely inconsistent with your evidence in this Court as to the relationship, aren’t they?
A. Yes, they are.
Q. The situation really was, wasn’t it, that insofar as it concerned Centrelink, you didn’t really care if your statements to them were true or false, did you?
A. I did--
Q. You just wanted the Centrelink money? You didn’t care if it was true or false how you got there, you just wanted the payments?
A. I needed the payment at the time, yes.
Q. So, you accept you didn’t care if the statements were true or false as long as you got the money at the end?
A. I did have feelings of - of guilt attached with that, yes
Q. But your feelings of guilt weren’t strong enough to actually tell Centrelink in 2004 that you shouldn’t have been receiving the money?
A. I felt that I was tied - it would cause too much trouble for everyone concerned, yeah.
Q. But mostly for you give you made those representations?
A. Well, what affected me would also affect other people. So, yes, I guess.
Q. What I’m putting to you is that you acted entirely out of self‑interest, really? You were willing to do what it took to get a benefit for yourself, that’s correct, isn’t it?
A. I was willing to take the benefit, yes.”

In considering Marea’s evidence I have taken into account the submission that the only reason she continuously lied was out of fear she would be caught lying about her initial Centrelink benefits. Marea has submitted she was under financial stress at the time of Isabel’s birth, and that resulted in her making such representations to Centrelink. She has since admitted her wrongdoing and is currently paying off a debt of over $60,000 to Centrelink. I have taken account of the generally calm and responsive way she gave her evidence (especially when compared to John’s evidence in the witness box). I have also reminded myself of the propositions that the Court should be careful about making a global credit finding and that just because a witness has lied about one thing does not mean they have necessarily lied about something else.
Notwithstanding those matters, I am unable to accept Marea as a generally reliable witness. Her pattern of deception was deliberate and lasted over many years. Most importantly, it goes to the heart of the central issue in these proceedings and cannot be dismissed as a minor deception over peripheral or irrelevant matters. Unfortunate as it may be for Marea, she has left herself in the position of the Court being left with her contradictory positions – what she told various authorities (and including not honouring her agreement about Isabel’s name) or what she now says. For these reasons, the Court will not accept Marea’s evidence unless it is inherently probable, against interest, or corroborated by reliable, independent contemporaneous evidence, whether written or oral.

Findings as to credit - John

It was submitted for John that while preference should be given to contemporaneous records, John’s evidence should be accepted. That submission does not survive the analysis of his evidence provided on behalf of Marea and which is largely adopted by the Court in what follows. The adverse view the Court has formed of John as a witness is based on the accumulation of a number of matters.
For example, in 1997 John issued Marea with a rental receipt from Mammal for living at the Property. The receipt was issued for the period 9 September to 9 October 1997 for the amount of $525. The receipt was signed by John. It seems inevitable that John understood Marea required the receipt for her false Centrelink claim. However the issue for present purposes is that when confronted with this evidence, John vigorously denied producing such a receipt for Marea. However, during cross-examination, John conceded the signature used to sign the receipt “looks similar to my signature.”
Furthermore, John’s 1995 tax return listed his accommodation as the Cammeray Duplex. In his testimony, John strongly denied that he ever lived at this address. Moreover, in the same tax return, John listed Marea as being his spouse, despite his claim that he was not in a relationship with Marea at this time, or indeed at any time. When asked to explain how this was listed on his tax return, John stated, “The accountant may have [done it].”
Similarly, when refinancing their home loan with ANZ in 2007, the Court is satisfied John described Marea as his spouse or de facto partner to the ANZ. The refinancing application was filled out by Mr Matthew Clayton, who worked for ANZ at the time and was called to give evidence. Mr Clayton was a completely independent witness who was obviously doing his best to give truthful evidence about what was for him an unremarkable episode many years before. The Court accepts his evidence. He testified that he filled out the application form in accordance with the instructions from both parties, as was his usual practice in relation to signing such application forms in 2007. This application was then reviewed by John and Marea and later signed by both parties.
Mr Clayton gave evidence as to the importance of determining the relationship status of parties when submitting the application. The Court finds that he would have been careful when taking instructions from both John and Marea in relation to this point. However, John steadfastly resisted accepting that he would have instructed Mr Clayton that Marea was his (John’s) spouse or de facto.
John was also not entirely frank as to the purpose of refinancing the home loan. John stated the loan was to be used for renovations to the Property. This was at least in part incorrect. In reality, the loan was to be used to pay for the litigation costs John incurred in the District Court in the Iota case.
Furthermore, when completing the ANZ loan application in 2007, John stated his personal income was $10,833 per month. John’s tax return for this same financial year was for just $4,800. John was unable to explain the large difference between the monthly figure provided to the bank, and the annual figure provided for tax purposes.
In the 1995 application John filed with the South Sydney Council for the construction on the Property, John listed the Property as being a private residence. This was despite John admitting he was hoping to use the Property as a commercial music studio.
Attached to John’s 2009 tax return was a rental property schedule. In this, John listed the Property as a form of income, and declared the date the Property first earned income was 1 July 2009. This was incorrect. The Property had been leased out since July 2004, and income has been derived since then. This error of claiming the Property did not earn income from 2004 was repeated on John’s 2010 tax return.
Similarly, John’s individual tax returns for 2005, 2006, 2007 and 2008 all failed to list any rental income from the Property.
Furthermore, John’s individual tax return for 2010 claimed interest deductions of $26,416 for the home loan. This was the entirety of the interest expense of the home loan, but John failed to make any apportionment for the residential area. This is also despite the fact that on his evidence John was living in the studio, and was therefore not entitled to make such a deduction.
Similar errors of fact and questionable deductions can be found in John’s business ledger. John’s 2007-2008 business ledger listed various forms of business expenses. Included in this ledger were personal expenses such as medical costs, veterinary fees and dog grooming expenses. These personal expenses were put run through the Mammal general ledger and subsequently claimed as tax deductions, despite failing to have any nexus to his income.
While giving his evidence, John made baseless claims. For example, John claimed that Marea withdrew $10,000 from his account. John stated this left him unable to afford a barrister during the time of the Iota litigation. During cross-examination, John was taken through his personal finances and it was shown he did not have $10,000 set aside for a barrister. Despite the evidence revealing that John did not have that money set aside, he refused to accept that conclusion.
Additionally, John’s recollection of events on numerous matters was poor or non-existent. On over sixty occasions during his evidence, John answered questions by saying “I do not recall” or “I do not remember”. He said he did not remember occasions which it seems most unlikely he would have forgotten, such as Marea’s 50th birthday party. There was evidence from third party witnesses that John had not only attended, but also spoke at, that party. I gained the clear impression that John’s poor memory was more likely to be deliberate evasion. In any event, if he honestly did not remember those things, then that also cast real doubt on his reliability as a witness.
Alternatively, on other issues, John had a very precise and detailed memory. This often smacked of convenience. For example, John claimed to remember having very specific conversations with Marea at the time of purchasing the Property. These conversations were in relation to purchasing the Property as co-owners, and the Co-Ownership Agreement originally alleged in his cross-claim. There was simply no evidence of any kind to corroborate his evidence on this point and his maintenance of that case during the hearing reflects very poorly on his credit. The abandonment of that case, while forensically understandable, did nothing to give the Court any confidence about John’s credibility.

In her cross-examination Ms Young highlighted various discrepancies between John’s affidavit for the proceedings in the FCC and his affidavit evidence in this Court. When challenged on these discrepancies, John was unable to explain the variations within his version of events. The most significant and unexplained variation concerned the alleged oral Co-Ownership Agreement. Notwithstanding this was the basis of his cross-claim (until abandoned) in this Court, John’s evidence in the FCC made no mention of such an agreement. John’s explanation that this was because those proceedings were focussed on other issues and he was in the hands of his lawyers was just not credible.
Finally, I quickly gained the impression that John was so determined to resist Marea’s claim that his entire evidence was coloured by that determination and he would not admit of any possibility that might suggest they were – at any time – in any kind of legally significant relationship.
It is the accumulation of matters such as those to which I have referred in the preceding paragraphs that informs my conclusion that John is not a witness whose uncorroborated evidence can be relied upon. My overall impression was that he was determined to say only what he thought helped his case rather than to tell the truth. As with Marea, the Court will not accept John’s evidence unless it is inherently probable, against interest, or corroborated by reliable, independent contemporaneous evidence, whether written or oral.

Findings as to credit - Isabel

While giving her evidence Isabel was clearly upset at times, showing her strong feelings of affection towards both her mother and father. I accept her evidence that she loved both her parents. It was clear that she was very unhappy about having to give evidence as between them. Nevertheless, I formed the view that she was, as she said (T375:31) “trying to do what’s right and tell the truth”. I accept her evidence.
In reaching this conclusion I have taken into account the determined attack on Isabel’s credit during her cross-examination and all of the matters raised in Marea’s submissions as to why the Court should not believe Isabel. I will deal specifically with what I consider to have been potentially the three most damaging matters for Isabel’s credit had they been made good.
First, Isabel was criticised for not having given evidence in the FCC Proceedings, notwithstanding she was 18 at the time of that hearing. Isabel accepted that she could have given evidence at that time. Her explanation was (T376-377) “Well, I suppose it’s gotten to a point where it’s just gone so far. I felt like it was time for me to step in…To be honest I wanted to [give evidence in the FCC], but I thought it was best not to at that time…Because it felt wrong ‘cause it’s a hard thing to do…Because I don’t want to hurt anybody, but I also want it to be fair for what actually happened and I like to think that I have the most amount of knowledge with the least amount of [transcribed as “fires”] here, and I just want, I just wanted to do what’s right.” I accept her explanation. In any event, I do not think it follows that just because she did not give evidence in the FCC her evidence in this Court is not reliable.
Second, it was put to Isabel that her motive for giving evidence for her father was to protect the Property in which they were currently living. She replied (T377:50) “It would have something to do with it, yes”. I took that to be indicative of her candour and not, without more, a basis to conclude that her evidence was biased or unreliable.
Third, Isabel was born on 16 February 1995. She was criticised for her affidavit evidence that “my mother and I slept together in the same bed almost every night between 1997 and 2006, until I was about 11 years old” on the basis that she would not remember that far back. Her evidence was that she had an actual recollection from when she was about three of her mother and her sharing a bed. She also said she had a recollection (T370:42) “for as long as I can remember that we slept in the same bed”. I do not consider that evidence to be implausible. Furthermore, to her credit, Isabel readily conceded when it was put to her that it was possible that, once she was asleep, Marea might have slipped out to sleep with John. But when it was put to her that there was a king size bed in which her parents slept “for many years” she maintained that was not the case.
Finally, I am unable to reconcile the suggestion that Isabel was biased against John when Isabel originally left the Property to live with Marea after Marea had left John. Marea was living with Matt out of Sydney and I accept Isabel’s explanation that she later returned to the Property to be able to finish school where she had been going at Newtown and to attend Sydney University. There was no evidence on which the Court could conclude that Isabel left Marea and returned to the Property because of animus against her mother and a preference for her father.
It follows that I accept Isabel’s evidence and, in reliance on it, find:

From 1998 (she turned three in February 1998) until 2006, Isabel and Marea slept together almost every night;

In around 2006 (when Isabel turned 11) she and Marea slept in two different rooms in the house part of the Property;

During the period from 1998 to around 2008, John lived in the studio and slept on a sofa bed in the main part of the studio. In about 2008 he bought a fold away bed and slept on it in the small upstairs part of the studio.

In about 2006 she and Marea moved into the downstairs part of the studio (other evidence makes clear this is when the main house was rented out).

From 2006 John and Marea were not on friendly terms and generally avoided each other (Isabel was not cross-examined on this part of her evidence).

The parties’ other witnesses

Each side called evidence from people who might be referred to as third party witnesses and, as I have noted in paragraph [18] above, neither side required the other party’s third party witnesses for cross-examination.
I will first briefly summarise what I have taken into account from the evidence of those witnesses called in Marea’s interest.
Mary McNamara – She lived in the other duplex to the Cammeray Duplex. She records observing John and Marea behaving as she would expect of a couple living at the Cammeray Duplex with John running his music recording business from the bottom level, including when Isabel was born. She also says “I do not have any direct recollections of seeing them holding hands or other public displays of affection but I do not ever recall them being involved with any other partner or talking of any other partner. They both seemed to me to be focused on their new baby and their music business.”
Marea’s younger sister, Catherine Titmarsh – Marea reported to Catherine having many arguments with John over the years about money or John’s drug use. Catherine had never known Marea to have more than one sexual relationship at a time. Marea described John as her (Marea’s) partner. Catherine never stayed overnight at the Cammeray Duplex, but attended social functions there put on by Marea and John. John and Marea spoke about their plans for Mammal. She does not recall John ever holding Marea’s hand but did see him give Marea the “occasional affectionate kiss”. She saw Marea prepare meals for John. John came to various family events. Marea and John both expressed pleasure to her that they were going to be parents. She gives evidence of visiting John and Marea at both Cammeray and at the Property. She recalls attending Marea’s 50th birthday party in the studio at the Property and John thanking Marea for the contributions she had made to their family life. She also records (and I regard as significant) “Marea had organised much of the party herself but I understood from her that she sought John’s permission to do so before issuing the invitations particularly given the party was held in the studio”. She gives evidence about Marea reporting abuse by John and John behaving very inappropriately at Marea’s father’s funeral. She attaches some photos of family events.
David Titmarsh, Catherine’s husband – David generally corroborates Catherine’s evidence. He says that neither John nor Marea were openly affectionate people “and I do not recall either of them ever holding hands or kissing each other”. He once saw John put his hand on Marea’s knee and recalls them exchanging affectionate looks or hugs on occasions. He gives evidence of being shown around the Property and seeing living arrangements inconsistent with John’s assertion that he lived in the studio.
Monica Burton, Marea’s mother – She gives evidence of seeing male clothes in the bathroom and around the Cammeray Duplex with only the main bedroom apparently being slept in. She never visited the Property. She recalls John, Marea and Isabel visiting at Port Macquarie, and receiving cards signed from the three of them. John and Marea slept in the same bed on those visits. Neither of them ever told her they were not living together as a couple.
Anna Messariti, a friend of Marea’s – She recalls Marea introducing John in the early 1990s as her partner, with no disagreement from John. She records Marea as saying she (Marea) was happy to have found a partner and, when she was pregnant, describing her relationship with John as “a true love match”. She gives other evidence of observing John and Marea appearing to behave as a couple, and with Isabel as a family.
Vanessa Harris – Vanessa is slightly younger than Marea and came to know her through a friendship between Marea and Vanessa’s mother. Marea introduced Vanessa to John and described him, without his objection, as her (Marea’s) boyfriend. She records observing physical affection between John and Marea such as holding hands and kissing in 1991 and 1992. She visited John and Marea at the Cammeray Duplex after Isabel was born and says they presented “as a happy young family”. Vanessa helped with colour consulting and landscaping for the Property and recalls Marea describing the larger bedroom as “John and her bedroom”. She attended the Property during the first couple of weeks after John, Marea and Isabel had moved in and saw John sleeping in the main bedroom during the day “as he would often sleep during the day. He would often not get up until after midday.” (I have particularly noted, however, that she does not record observing John and Marea sleeping there together.) She recalls John and Marea attending her (Vanessa’s) 40th birthday with Isabel and having a nice time together. She remembers John making a speech (but not the contents) at Marea’s 50th birthday party.
Sandra Chick – Sandra was originally a singer. She knew John as a colleague in the music industry. She first met Marea with John at a club in 1991 or 1992. Over a two or three year period she attended the Cammeray Duplex and recorded background vocals and saw John and Marea working in the Mammal business together. She would often arrive and find John there just having woken up. After a break in seeing them, she also made recordings in the studio at the Property in 1997 and saw a couch in the studio, but no evidence that John was sleeping there. Sandra never stayed overnight at the Property.
Vanessa’s mother - Margaret Harris: She has been a friend of Marea’s since Marea was 19. In the early 1990s Marea introduced John to Margaret as her (Marea’s) boyfriend without demur from John. Vanessa visited the Cammeray Duplex on “numerous occasions” during the day and “often” John was asleep in the double bed in the main bedroom. She observed John’s clothes scattered around the Cammeray Duplex. She observed John and Marea cuddle and kiss “as if a couple” on many occasions. She records an occasion when having told the assembled group that they were expecting a baby, when they were asked if they were going to get married “Marea and John then looked at each other, laughed and then said, ‘No’”’. She was at the Cammeray Duplex for 8 days after Isabel was born and John slept there with Marea during that time and helped care for her and Isabel. Margaret also stayed at the Property while her daughter was helping with colour consulting and landscaping and she would “sometimes” stay overnight. Her evidence is that Isabel’s room had two single beds and that she (Margaret) saw John and Marea sleeping in the double bed in the main bedroom with John’s clothes being all over the floor and in the main bathroom. She records John and Marea introducing themselves to other people as the other’s partner without correction by the other. She records when the whole family moved into the studio and rented the main part of the Property out. She recalls John making a speech about Marea at Marea’s 50th birthday party and then kissing Marea at the end of the speech.
For his part, John called his mother, Sonia, who at the time of hearing was nearly 85 years old. Her evidence went to two issues. First, she said that John lived in the downstairs apartment at the Mosman property from 1989 until he moved to the Property in 1997. Second, she acknowledged that Marea came to various family events with John and Isabel. One those occasions her evidence was that John and Marea did not display any obvious affection to each other: “I observed that both treated each other with what I consider to be impersonal courtesy but that both appeared to be concerned for the welfare of Isabel”.

Living at the Cammeray Duplex - 1993 to 1997

For understandable reasons, the parties primarily addressed their submissions to John and Marea’s life at the Property. Nevertheless, what occurred before they moved to the Property is at the very least an important piece of background. I will first set out my findings and then give my reasons for them.
The Court finds that in the period until John, Marea and Isabel moved into the Property in about July 1997:

John and Marea started something more than a casual or friendly relationship in the early 1990s while John was living at the Mosman Property;

Marea moved to the Cammeray Duplex in May 1992;

In September 1992 John moved his studio equipment into the ground floor of the Cammeray Duplex;

Thereafter John attended the Cammeray Duplex regularly, if not daily, for the purpose of his business and Marea worked with him in that business;

During the period in question he would more often than not spend the night at the Cammeray Duplex but did not completely stop staying at the Mosman Property from time to time until he moved to the Property;

John and Marea had a sexual relationship which resulted in the birth of Isabel;

John was there for the birth of Isabel and stayed at the Cammeray Duplex non-stop after Isabel was born for a period of time (at least some weeks) helping to look after Marea and Isabel, doing the shopping and the like, but he did not permanently “move in” thereafter and at some point returned to also spending nights at the Mosman Property.

John and Marea presented as “a couple” on social occasions.

Marea’s and John’s evidence was completely opposed, with John maintaining that he never lived with Marea at the Cammeray Duplex and that while he rented the downstairs for his studio, he continued to live at Mosman. However, while Marea painted the opposite picture, her evidence was not always consistent. Thus in one affidavit (sworn 3 February 2016, paragraph 31) she says that while they lived at the Cammeray Duplex they pooled their funds and jointly contributed to expenses such as electricity, telephone and water, in another affidavit (sworn 21 July 2016, paragraph 27) she says that such expenses were paid for by John or Mammal.
Similarly, the third party evidence does not paint a completely consistent picture, even on something as potentially fundamental as whether John and Marea were publicly affectionate to each other. Nevertheless, I am also satisfied that the third party evidence is sufficiently reliable, when taken with the inherent probabilities, to provide the foundation for the findings I have made in paragraph [172] above. I make the following additional comments:

As to paragraph [172(4)], this accords with the inherent likelihood arising from the fact that his business was there and the evidence of some of the third parties.

As to paragraph [172(5)], the evidence does not permit a finding as to the exact split. As his business was there and the third party evidence is that he often worked late, I am satisfied it would have been more often than not. Also, he (or Mammal) came to pay the entire rent. The third party evidence is also to some extent corroborative of Marea’s affidavit evidence that by the time John moved his equipment in to the Cammeray Duplex, he was sleeping most nights at the Cammeray Duplex. Nevertheless, I have also given weight to the fact that during this period John completed forms showing his home address as one of the Cammeray Duplex and the Mosman Property (see paragraphs [56] and [58] above). I also give some weight to John’s mother’s evidence that John lived at the Mosman Property until he moved to the Property, but that untested evidence must be understood in the context of the weight of the other evidence that John spent many nights at the Cammeray Duplex. In addition to paying rent for the entirety of the residence, John also paid for a cleaner to attend the residence. The cleaner was paid to clean the entire residence, not just the area John has claimed he used for the purposes of his music ventures.

As to paragraph [172(6)], once assertions by Marea and John are put to one side, the evidence does not permit a finding as to the frequency of their sexual relationship. Human relationships, including those involving sex, are infinitely various and there is no proper basis for the Court even to essay a finding based on common experience or inherent probability. Nor is the Court assisted in this regard by the evidence that neither John nor Marea had any relationships with any other person during the course of their time together.

As to paragraph [172(7)], the findings concerning the period around Isabel’s birth are based on both the inherent probabilities of what a new father might be expected to do and acceptance that Margaret Harris had no reason not to be truthful in her description of this period (see paragraph [169] above).

Financial arrangements made with Robert

An essential question for determination in this case is who is liable to Robert (or his estate) for the loans made by Robert? The parties to an agreement are to be “determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract”: Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299 at [28] per Allsop P and Handley AJA; Hodgson JA agreeing. Because of the view I have taken about Marea and John’s credit, this question falls for determination by reference to the contemporaneous documents. I have not overlooked some third party evidence touching on this issue. While not objected to, it is nevertheless hearsay and, as such, I give it no weight.
Robert provided two notes to John, advising him of the loans he had provided, and the terms of such loans.
The first loan was for $20,000. This loan was for purchasing a new car. Following this loan, Robert sent John a letter, dated 11 November 1994, set out in paragraph [39] above. This letter was addressed to John, and only to John. It is precise in its terms, setting out the amount each monthly instalment was to be repaid, and to which account each monthly instalment was to be paid. As it was only addressed to John and only refers to John, it clearly evidences Robert’s intent to enter a loan agreement with only John and the Court finds accordingly.

From 1992-2010, Marea made non-financial contributions for the benefit of both parties, and their daughter. These contributions included domestic activities, such as cleaning and washing, garden maintenance, helping design the home, being the primary carer of Isabel, and managing household expenses. It would be fair and equitable to consider these non-financial contributions.

If Marea is not entitled to 50% of the proceeds of the sale of the Property, this would be unconscionable. As such, Marea submitted that John holds his interest in the Property subject to a constructive trust in her favour, representing her contribution to the joint endeavour.

John’s submissions can be summarised as follows:

Where Marea made little or no financial contribution to the Property, no constructive trust could arise in favour of the plaintiff. Marea has not paid any of the mortgage repayments, nor has she made any financial contribution to the maintenance of the Property.

Similarly, Marea did not make any non-financial contributions to the Property. Both John and Marea resided separately in the Property, so even if Marea made non-financial contributions, those contributions did not benefit John, or the Property.

Constructive trust - resolution

It is important to recall that equity will not intervene simply to overcome what might be thought to be an “unfair” result. As noted by Campbell J (as his Honour then was) and cited by Ward J in paragraph [265] above, the basis for the intervention of equity 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. That conclusion may be based on direct evidence (e.g. one party telling the other that the property would be theirs) or is inferred by the Court “not to give effect to the actual and specific intention of the parties, but on the basis of a pooling of resources for the purposes of a joint relationship which has come to an end”: Green v Green (1989) 17 NSWLR 343 at 354 (per Gleeson CJ, Priestley JA agreeing). An affirmative conclusion establishes the unconscionability which attracts the intervention of equity by the imposition of a constructive trust.
As framed by Marea’s alternative case, the question for determination becomes whether it is unconscionable for John to assert a greater interest in the Property than 50%? Marea bears the onus of satisfying the Court that equity should intervene.
Whether or not there was a joint relationship between John and Marea must be informed by the Court’s conclusion that Marea has failed to satisfy the Court that she and John were living together “as a couple” for any significant period of time. However, that does not eliminate the possibility of a joint relationship, the breakdown of which could attract a constructive trust. The issue in the present case turns on the word “joint”, which conveys the idea of a mutual endeavour for mutual benefit. For the reasons which inform my earlier conclusion that they were not living together as a couple, I am not satisfied that they were engaged in a “joint” relationship of that kind. Curiously, neither of them gives any evidence of discussions at or around the time of the purchase of the Property (or even earlier) how the financial aspects of their relation would operate. However, I am well satisfied by all of the persuasive evidence that they were engaged in an endeavour to ensure that each had the benefit of being involved in raising Isabel under the one roof. An important fact upon which I rely is that, whatever the state of their earlier intentions, the quest for a home of their own really only got going in earnest after Marea fell pregnant. Contrary to Marea’s submission, I am not satisfied this was a relationship for the mutual benefit and enrichment of each of Marea and John, and then later Isabel.
The conclusion I have reached may be susceptible to semantic argument about whether it is a “joint relationship” of the requisite kind because it involves an endeavour by them to raise Isabel in the one home. In the end, resolution of this argument does not matter, because whatever the answer, I am not satisfied that it is not unconscionable for John to claim more than 50% (but, conformably with the Court’s earlier findings, not more than 84.03%). The reasons for this are as follows:

“The scope of the joint venture” (see paragraph [159] in Austin quoted in paragraph [265] above) as I infer it from the objectively ascertainable facts of what occurred and giving the weight to Isabel’s evidence which I consider it warrants, was to provide a home where they could all reside so that each of John and Marea could be involved in raising Isabel. Each would bring to the venture what they could, including their willingness to be liable on the mortgage as joint tenants in order to secure the finance to buy the Property. To the extent they “pooled resources” it was for the purposes I have identified and not for the mutual benefit and advancement of each other.

There were no representations from John to Marea about what interest she would have in the Property nor any discussion between them about such matters.

As the Court has found, they contributed to the purchase price 84.03% (John) and 15.97% (Marea).

On the agreed figures in Exhibit 16D, from the taking out of any mortgage until February 2018 John has paid $506,059.70 in mortgage repayments (whereas Marea has paid only $4,846) and has continued to pay the repayments after Marea left the Property; John has paid $29,171 for improvements to the Property; John has paid $57,977.42 for council rates, water rates and utility bills (whereas Marea has paid $22,319.51).

Doing the best I can from the material provided by the parties, much of their living expenses (as well as John’s litigation costs) was funded by refinancing the Property and from the rent obtained by leasing out part of the Property (for which rent on any final adjustment John must account to Marea for her 15.97% share, but she equally having to account to him for the extent that she has not contributed 15.97% of the mortgage repayments). In this regard I note Ms Young’s submission “In terms of the acquisition, conservation and maintenance of the Property, the financial contributions of both Mr Prior and Ms Burton, once you factor in the private rental of the Terrace, are relatively equal” (emphasis added). The difficulty with this submission is that it assumes an equal interest in the rental income, which begs the essential question in the proceedings.

Further, assuming they applied their incomes equally over the life of their relationship to the benefit of the relationship, no adjustment would be warranted. Setting aside the $61,565.27 which Marea obtained in benefits (which, given it was obtained by Marea’s lies to the authorities, equity would decline to take into account), the parties’ tax records for YE 30 June 1992 to YE 30 June 2010 disclose Marea earned $248,478 in total and John earned $262,368 in total. I have noted that virtually all of Marea’s income was earned in the last 5 years of that period, during which time she earned considerably more than John. Those same records show that overall Mammal made very significant losses.

The only basis to make any adjustment to reduce John’s interest would be to allow for Marea’s non-financial contributions, but (unlike in many cases of this kind where a child has been raised) I am not satisfied equity should intervene in this case because:

There is very little reliable independent evidence that Marea did as much of the domestic tasks as she said she did. However, I have assumed in her favour for the purpose of this analysis that she did the majority of them at least until she recommenced employment in 2005-2006 (her first financial year of significant income) and Isabel was 10.

I have found the “scope of the venture” (see paragraph [271(1)] above) was that each would bring to the task of raising Isabel what they could. Each of Marea and John did that. For his part, John has paid virtually all of the mortgage repayments on the Property.

Even to the extent John may have benefited from Marea’s performance of domestic tasks, they were tasks done because of Isabel rather than directed to the benefit of John as her partner in life.

I am not satisfied this is a case where, as is sometimes said in constructive trust cases, the party which made the greater financial contribution to the Property was “enabled” to do so by the other party’s domestic contributions. A material part of their expenses seem to have been met out of advances secured against the Property, and mortgage payments met from rental income since 2004. Furthermore, Marea continued to have a role working in Mammal presumably to generate income for much of the time she was also (on my assumption) doing most of the work caring for Isabel.

Marea’s application under s 66G of the CA

Marea seeks the appointment of trustees for sale of the Property pursuant to s 66G of the CA. There was no dispute between the parties that the law is that while an order under s 66G of the Act is discretionary, as noted by White J (as his Honour then was) in Tory v Tory [2007] NSWSC 1078 at [42], it is granted ‘almost as of right’ unless on settled principles it would be inequitable to allow the application.
In paragraph 24 of his defence to Marea’s amended consolidated statement of claim, John pleaded that he “does not oppose the sale of the Property, but relies on the Cross-Claim”. John’s original answer to Marea’s application was to allege the Co-Ownership Agreement which he has now abandoned. His further amended statement of cross-claim now asserts the respective equitable interests to which I have already referred to the intention that the proceeds of sale should be divided in accordance with those interests.
Subject to John’s submission that he should be given a chance to buy out Marea’s share of the Property (which I reject in paragraph [286] below), it is clear that an order for the sale of the Property should be made. It must be noted that pursuant to s 66G, the Court does not have general discretion to take such a course of action as proposed by John. However John is welcome to bid for the Property upon its sale.

Occupation rent?

It is common ground that since 22 February 1995 John and Marea have been co-owners of the Property and that Marea left the Property on 18 February 2010. There can be no doubt that whatever relationship Marea had with John, it had come to an end by that date.
Marea submits that, as a co-owner of the Property, she is entitled to the benefit of an occupation rent from John to compensate her for the fact that she was not able to enjoy her right of occupation of the Property as a co-owner. John submitted that because there had been no ouster of Marea, she was not entitled to an occupation rent. The Court accepts Marea’s response that John’s submissions fail to engage with more recent developments of the law which uphold an entitlement to occupation rent where one party to a relationship has left the relevant property because of the end of that relationship.
In my respectful view, the current state of the law has been well summarised by Robb J in William Bkassini v Sonya Sarkis [2017] NSWSC 1487 in a passage which I respectfully adopt:

“Principles governing entitlement of one co-owner to an occupation fee
130. The Court of Appeal in Callow v Rupchev [2009] NSWCA 148, in a joint judgment of Beazley and Basten JJA and Handley AJA, set out the traditional basis upon which an occupying co-owner may be ordered to pay an occupation fee to a co-owner not in possession in the following terms:
[31] The traditional grounds for charging an occupying co-owner with an occupation rent, for the benefit of a co-owner who was not in possession, were an actual ouster by the occupying co-owner which prevented the other co-owner from exercising his or her right to possession, a constructive ouster by denial of title, and a claim by the occupying co-owner to be recouped for his expenditure on permanent improvements which had increased the value of the property. The relevant principles, and the decisions on which they are based, were reviewed in Luke v Luke (1936) 36 SR (NSW) 310.

131. Their Honours added:
[46] Under the traditional principles an actual ouster by the occupying co-owner involved a civil wrong, either a trespass to the person by assault or battery, or a physical obstruction which prevented the absent co-owner from exercising his right to occupy the property: Jacobs v Seward (1872) LR 5 HL 464 at 472–3…

132. The principles had earlier been set out somewhat more fully by Beazley JA (as her Honour then was), with whom Stein JA agreed, in Biviano v Natoli (1998) 43 NSWLR 695 at 700, in the following terms:
“A tenant in common is entitled to exercise acts of ownership over the whole of the common property without liability to be called upon to account in respect thereof: Luke v Luke (1936) 36 SR (NSW) 310. This general rule will be displaced, however, where a tenant in common has wrongfully excluded a co-tenant from exercising the right to occupation. At common law a co-tenant so excluded could sue for ejectment and for mesne profits: Goodtitle v Tombs (1770) 3 Wils KB 118; 95 ER 965, and could also bring a partition suit to charge the occupying co-tenant with an occupation rent: Pascoe v Swan (1859) 27 Beav 508; 54 ER 201. Long Innes CJ in Eq in Luke v Luke said at 314: “by excluding [a] co-owner from the exercise of his legal rights the tenant in common who so excluded his co-owner had committed a legal wrong".”
Long Innes CJ in Eq rejected the proposition that a co-owner who remained in occupation of property was, by that circumstance alone, subject to an occupation fee. An entitlement to an occupation fee only arose where there was conduct sufficient for the court to infer a denial of the claimant's title: see Chieco v Evans (1990) 5 BPR 11,297; Jones v Jones at 441 per Lord Denning MR. In Forgeard v Shanahan (1994) 35 NSWLR 206 Meagher JA reiterated the principles which govern the right to claim an occupation fee. His Honour stated at 223:
... Turning to the liability of a co-owner in occupation to pay an occupation fee, the position at law is fairly clear. He was not liable unless he excluded his co-owner, in which case he rendered himself liable in ejectment and for mesne profits, or if he constituted himself a bailiff, in which event he would be liable in an action of account, like any other bailiff: Re Tolman's Estate (1928) 23 Tas LR 29 at 31; Rees v Rees [1931] SASR 78 at 80-81. Indeed, the whole bias of the law against making a co-owner in occupation liable to account is precisely based on the rationale that if such a liability were to exist a co-owner could, by abstaining from entering into occupation, turn his co-owner into an involuntary bailiff. As far as equity is concerned, an occupation fee will be exacted in at least two circumstances: first, in a partition suit (or related litigation): if there has been an exclusion, the tenant in occupation will be charged with an occupation fee (see, eg, Pascoe v Swan (1859) 27 Beav 508; 54 ER 201); this is an example of equity following the law; and secondly, if the owner in occupation claims an allowance in respect of improvements effected by him, equity will permit such an allowance only on terms that he is accountable for an occupation fee - this is an example of he who comes to equity having to do equity: see Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476.

There was no real dispute as to the correctness of these principles.

133. The Court of Appeal in Callow v Rupchev observed at [32] and [33] that the traditional grounds for determining when an occupation fee was payable became established in cases between siblings and other relatives, decided before significant changes in the law and cultural changes concerning home co-ownership between domestic couples, whether married or otherwise, after the Second World War. Their Honours then considered at [35] to [61] what they described as “‘new’ principles, based on cases dating from the 1970s” that “have established that a forceful ouster is not necessary where the domestic relationship has broken down and one co-owner, for practical reasons, can no longer live in the property with the other, and leaves”.
134. The Court of Appeal concluded the following:
[59] In McKay v McKay [2008] NSWSC 177, Brereton J reviewed a number of the authorities discussed above and concluded at [51]:
I, therefore, agree with Purchas J in Dennis v McDonald and Beazley JA in Biviano v Natoli, that the basic principle that a tenant in common is not liable to pay an occupation rent by virtue merely of his being in sole occupation of the property does not apply in the case where a matrimonial or similar relationship has broken down and one party is, for practical purposes, excluded from the family home. Upon breakdown of a domestic relationship, if it becomes no longer reasonable or practicably sensible to expect the partners to co-occupy the one property, the one who remains in possession may be taken to do so to the exclusion of the other, and to be liable to pay an occupation fee. At present, however, Biviano would seem to restrict that to a case in which the exclusion was not authorised by a court order — whether under matrimonial legislation or an [apprehended personal violence order].

[60] This statement of principle may be accepted, subject to the qualification that, viewed in the context of the broader authorities, Biviano should not be seen as restricting the allowance of a notional occupation fee to those cases where the exclusion was not required or authorised by a court order. That conclusion accords with the statement of the law set out by K Gray and SF Gray, Elements of Land Law (5th ed, OUP, 2009) at [7.4.44] in the following terms:
To this basic common law principle of rent-immunity between co-tenants there emerged, over the years, a number of overlapping exceptions, most of which involved some trauma in the personal or family relationship of the co-owners. It came to be accepted, for instance, that an occupation rent is payable by a co-tenant whose sole occupation was achieved by the intentional ouster or violent exclusion of another co-tenant or where termination of a personal relationship made it “unreasonable” to expect continued joint occupation. Likewise a co-tenant who claimed credit for improvements, repairs or mortgage outgoings paid on the co-owned land was normally required to give credit for a notional rent to be assessed in respect of any sole occupation which he had enjoyed.

135.   The development in the law that recognises an entitlement in a co-owner in a domestic context to receive an occupation fee when forced to leave because of the breakdown in the relationship with the co-owner, and without the need to establish forceful ouster, reflects the reasonable expectation of the co-owners to enjoy equal and complete occupation of the property and the real loss and cost to the excluded co-owner from the fact of exclusion from the enjoyment of the expectation. …
…
143   The present case should be determined by applying the traditional principles, but having regard to the reality that No 95 has always been William’s home, and none of the other beneficiaries of the deceased’s will, including Sonya, have had any genuine need or desire to occupy the property with William.
144.   In my view the court is entitled to look closely at the real circumstances of the co-ownership.
…
Assessment of amount of occupation fee
152.   It is also necessary to consider the principles that govern the assessment of the appropriate occupation fee where it is established that one co-owner has wrongly excluded the other from enjoyment of the common property.
153.   In Biviano v Natoli, Beazley JA made the following observations concerning how the amount of any occupation fee should be calculated (at 704):

It is surprising that there is not more authority on this question. In my opinion, the starting point for the determination of the question is first, the principle that a co-tenant is entitled to the use and occupation of the whole of the premises and secondly, that the entitlement of the ousted tenant is to an occupation fee. The occupation fee is in fact mesne profits arising from the occupying co-tenant's wrongful ouster. Mesne profits are not rent: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 39. They are calculated on the open market value of the premises: see Rock Bottom Fashion Market Pty Ltd (In liq) v H R & C E Griffiths Pty Ltd (unreported, Queensland Court of Appeal, 6 March 1998 per Dowsett J at 10-12). "The measure... is a reasonable sum in the nature of rent": see Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 at 252 per Somervell LJ. This is often proved in fact by relying on the amount or rental payable under an existing lease: see Atkin's Court Forms (2nd Ed) Vol 24 at para22; Halsburys Laws of England (4th Ed) Vol 27 para 255; Rock Bottom Fashion Market Pty Ltd (In liq) v H R & C E Griffiths Pty Ltd.
Notwithstanding that a co-tenant has a right to occupy the whole property, I do not consider that it is appropriate to merely take the rental value for the whole of the property. It would be inequitable to do so because an actual letting of the property where there is already a co-tenant in occupation would not attract a market rental based on full occupation. It may not even attract 50% of the market rental.
The onus of establishing the quantum of the occupation fee falls upon the party claiming it - namely, the ousted co-tenant. The respondent proved the rental value of the property based on there being no other person already in occupation. He did not prove the rental value on the basis that the appellant and her daughter also occupied the property, as they were entitled to do. Notwithstanding that, I am of the opinion that as the appellant did not seek to assert any lesser figure than 50%, that is the appropriate percentage to apply…

154. In-so-far as Beazley JA referred to the proof of the reasonable amount payable by relying on the amount of rental payable under an existing lease, by reference for example to the decision of the Queensland Court of Appeal in Rock Bottom Fashion Market Pty Ltd (in liq) v HR & CE Griffiths Pty Ltd [1998] QCA 033; [1998] ANZ Conv R 549, her Honour appears to be referring to cases where the plaintiff is solely entitled to possession of the whole of the property which is occupied by the defendant in circumstances that make the defendant a trespasser, such as when a lessee continues to occupy demised premises after the termination of the lease. It is natural in such a case that the occupation fee should equate to the rental value of the property.
155. Beazley JA seems to say that when the property is owned in co-ownership and one co-owner excludes the other, any occupation fee should be calculated having regard to the fact that the excluded owner has only lost the right to use the property equally with the excluding owner. It is, with respect, entirely logical to conclude that in the usual case a third party would not be prepared to pay 50% of the market rent, if the third party’s entitlement to enjoy the property had to be fully shared with the excluding owner. If that is correct, then I would suggest, with respect, that the observation by Brereton J at [54] in McKay v McKay, made in reliance upon Beazley JA’s judgment, that: “The proper measure of an occupation fee would seem to be half the market rent of the property for the period of the exclusion”, will not always be correct.
156. In Biviano v Natoli at 704, Beazley JA said that the onus of establishing the quantum of the occupation fee falls upon the claimant, in this case Sonya. If that is the case, then the claimant should be required to lead evidence of the market rent for the lease of the claimant’s interest as co-owner, on the basis that the other co-owner will retain all of his or her rights in respect of the common property. The question is what Beazley JA meant when she said “that as the appellant did not seek to assert any lesser figure than 50 per cent, that is the appropriate percentage to apply”. I have taken her Honour to mean that, at the trial in that case, the appellant did not contest the appropriateness of the occupation fee being simply 50% of the market rent for the freehold. I have not taken her Honour to mean that the court will countenance the claimant putting forward an inappropriate proof (being the value of the market rent on the assumption of exclusive possession) so that the occupation fee will be calculated on that basis unless the other co-tenant puts forward positive evidence for some lower amount that takes into account the continuing entitlement of that co-tenant. In the present case William did not accept that the basis upon which Sonya calculated the amount of the occupation free was a proper way to do so.”

The Court accepts by reason of the principle summarised in paragraph [135] of Robb J’s judgment that Marea is entitled to an allowance reflecting an occupation fee. However, John submitted for various reasons that even in that situation Marea’s entitlement would be “nominal”. That is not something the Court can determine at this stage because the Court has deferred the quantification of any occupation fee. However, because the parties did engage in their submissions as to how any fee should be assessed, I will express my conclusions on that issue.
John relied on Beazley JA’s analysis in Biviano (set out in paragraph [153] of the extract from Robb J’s judgment above) to submit that any occupation fee would have to take into account John’s right to occupation of the Property including with Isabel. Marea submitted that was to misconstrue what her Honour had said, which was no more than that where two parties are co-owners in equal shares, then the fee is generally one half of the market rent.
I do not accept Marea’s submission. I understand the effect of Biviano on this point to be as Robb J did in paragraphs [155]-[156] of his judgment, in particular that “any occupation fee should be calculated having regard to the fact that the excluded owner has only lost the right to use the property equally with the excluding owner”. Furthermore, there may be an issue not yet addressed by the parties whether Marea will have to do equity in relation to any occupation fee just as, for example, the parties have agreed there will have to be a proportional adjustment in relation to the rent John has received. Accordingly, given the Court’s findings as to their respective equities in the Property, would Marea only be entitled to 15.97% of any occupation fee?
By way of summary, if Marea exercises her entitlement to claim an occupation fee, there will have to be a further directions hearing to determine how the occupation fee can be determined in a way most consistent with the just, quick and cheap resolution of that aspect of the dispute. The valuation will have to be done for the period since 18 February 2010 by reference to at least the following:

To value the market value of the rental of a right to co-occupy the Property with John where John is, prima facie, entitled to use and occupy the whole of the Property;

What other facts are to be assumed by the valuer as a result of a close look “at the real circumstances of the co-ownership”. This is a retrospective fact based (non-hypothetical) task which would have to take into account the practical physical arrangements at the Property, the periods when Isabel was also in occupation and any other relevant matters. The need to take into account the real circumstances during the valuation period is demonstrated, for example, by the fact that had the premises been uninhabitable for some reason, Marea would not be entitled to occupation rent for that period.

Conclusion

It is unfortunate that the conclusions reached in this judgment do not provide the parties with an immediate and final answer to resolve the entirety of the dispute between them. A number of issues remain for their consideration. These include:

They will have to calculate the accounting between them in relation to the agreed amounts set out in Exhibit 16D;

Marea will have to decide whether she wishes to press for the determination of the amount of occupation rent to which the Court has found she is entitled;

The question of the costs of the proceedings to date may not be straightforward. I do not express any opinion on the ultimate outcome. However, it must be acknowledged that, on one view, while it might be said that John has succeeded, he has only done so in respect of a case which was the subject of a formal amendment allowed on the last day of the hearing and after him abandoning the case based on the Co-Ownership Agreement. On the other hand, it will be submitted that Marea has had a measure of success by satisfying the Court that she is entitled to an occupation rent and orders for the appointment of trustees for sale. Furthermore, the factual overlaps between the various claims will need to be considered.

The Court will give the parties an opportunity to consider these reasons and discuss how they wish to proceed. In that regard I will make four final observations.
First, I urge the parties to attempt to settle their differences either by court-annexed mediation or with the assistance of a private mediator. They can do so informed by this judgment and before more money is spent on legal fees and the expenses associated with valuation of any occupation rent and a sale of the Property by trustees for sale. On the next occasion I will want to hear from the parties as to why I should not order them to go to mediation.
Second, if Marea does wish to press for occupation rent, my preliminary view and subject to hearing from the parties, is for that to be done by reference out to an expert valuer, including leaving to that valuer the finding of any facts (additional to those found by the Court in these reasons) which the parties may wish to contend are relevant to the valuation task. The question of whether Marea has to account to John for 84.03% of any occupation rent (if the parties do not agree one way or the other) could be argued at the time the valuer’s report is presented for adoption by the Court.
Third, the Court is satisfied that Marea is entitled to an order under s 66G of the CA and that order will be made unless in the meantime the parties agree otherwise. I do not accept John’s submission that there should be a formal hiatus to enable him to buy out Marea’s interest. In practical terms there will be some delay in any event before orders are made, and in that time John is at liberty to put whatever offer he wants to her. After that, he will be entitled to bid at any auction or seek to persuade the trustees for sale to accept any pre-auction offer he may want to make.
Fourth, the parties will need to consider and, in default of agreement, make submissions about whether the sale of the Property should abide the determination of any occupation rent payable to Marea if she decides to pursue that claim.

*********

Amendments

18 October 2019 - Paragraph 19 - first sentence, change "it does mean" to "it does not mean" before the words "that the Court must accept that evidence".

Decision last updated: 18 October 2019

Medium Neutral Citation:	Burton v Prior [2019] NSWSC 518
Hearing dates:	12, 13, 14, 15, 16 February 2018; 19 March 2018
Decision date:	08 May 2019
Jurisdiction:	Equity
Before:	Kunc J
Decision:	Property held on resulting trust in proportions of contributions to purchase price; Plaintiff entitled to occupation rent
Catchwords:	EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Family and domestic relationships FAMILY LAW — Property — De facto relationship — Adjustment of property interests — Property (Relationships) Act 1984 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Family Law Act 1975 (Cth) Limitations Act 1969 (NSW) Property (Relationships) Act 1984 (NSW) Real Property Act 1900 (NSW)
Cases Cited:	Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299 Austin v Hornby [2011] NSWSC 1059 Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044 Baumgartner v Baumgartner (1987) 164 CLR 137 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 Crown Estate Commissioners v Dorset County Council [1990] Ch 297 Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Fulton v Fulton [2014] NSWSC 619 Green v Green (1989) 17 NSWLR 343 Jonah v White [2011] FamCA 221; (2011) 258 FLR 236 Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964 Piras v Egan [2008] NSWCA 59 Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492 Short v Crawley (No. 30) [2007] NSWSC 1322 Steinberg v Federal Commissioner of Taxation [1975] HCA 63; (1975) 134 CLR 640 Temiha v Sadebarth (NSWCA; 13 May 1997; unreported) Tory v Tory [2007] NSWSC 1078 Warner v Hung, In the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 William Bkassini v Sonya Sarkis [2017] NSWSC 1487
Texts Cited:	Spencer, Bower and Handley, Res Judicata, 4th edn, LexisNexis 2009
Category:	Principal judgment
Parties:	Marea Therese Burton (Plaintiff) John David Prior (Defendant)
Representation:	Counsel: K J Young (Plaintiff) A Power (Defendant) Solicitors: Dormer Stanhope (Plaintiff) C J Boyd Solicitors (Defendant)
File Number(s):	2014/267512
Publication restriction:	No