Carruthers v Manning - [2001] NSWSC 1130

CITATION: Denise Susan Carruthers v James Ernest Manning [2001] NSWSC 1130

FILE NUMBER(S): SC 4259/2000

HEARING DATE(S): 5/12/01

JUDGMENT DATE:
5 December 2001

PARTIES :

Mrs Denise Susan Carruthers (Plaintiff)
Mr James Ernest Manning (Defendant)

JUDGMENT OF: Einstein J

COUNSEL : Mr R Wilkinson (Plaintiff)
Mr K Lapthorn (Defendant)

SOLICITORS: Joan Pierpoint & Associates (Plaintiff)
Searson Shannon & Co (Defendant)

CATCHWORDS: Equity - de facto relationship - domestic relationship - application for adjustment of interests with respect to property - just and equitable - pooling of resources - contributions to acquisition, conservation or improvement of property - direct financial contributions - non-financial contributions - domestic contributions - claim to constructive trust - claim of common intention - claim of unconscionability - intention to marry - promise to provide financial support and accommodation for life - alleged disposal of real property in reliance upon promises to detriment of plaintiff - equitable estoppel - proprietary estoppel

LEGISLATION CITED: Property (Relationships) Act 1984

CASES CITED: Amalgamated Property Company v Texas Bank [1982] QB 84
Baumgartner v Baumgartner (1987) 164 CLR 137
Bryson v Bryant (1992) 29 NSWLR 188
Crawford and Crawford (1979) FLC 90-647
Grant v Edwards [1986] Ch 638
Greater Pacific Investments Pty Ltd (in liquidation) v Australian National Industries Ltd (1996) NSWLR 143
Green v Green (1989) 17 NSWLR 343
Mallet v Mallet (1984) 156 CLR 605
Miller v Sutherland (1990) 14 Fam LR 416
Muschinski v Dodds (1985) 160 CLR 583
Parij v Parij (1997) 72 SASR 153
Pascoe v Turner [1979] 2 All ER 945
Public Trustee v Kukula (1990) 14 Fam LR 97
Rolfe and Rolfe (1979) FLC 90-629
Stowe v Stowe (1995) 19 Fam LR 409
Wardman and Hudson (1978) FLC 90-466
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

DECISION: Statement of Claim dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
Equity DIVISION

Einstein J

5 December 2001 ex tempore
Revised 11 December 2001

4259/2000 DENISE SUSAN CARRUTHERS V JAMES ERNEST MANNING

JUDGMENT

1 The plaintiff Ms Denise Susan Carruthers claims relief pursuant to the Property (Relationships) Act, 1984 ["the Act"] and/or in the alternative equitable relief based on a constructive trust.

2 The plaintiff was born in 1954. The defendant, Mr James Ernest Manning was born in 1937.

The claim made pursuant to the Act

3 The defendant accepts that the parties lived together on the defendant’s farm property at Pappinbarrra Road, Hollisdale in a de facto relationship for a period of approximately 17 months between July 1997 and November 1998. [defence paragraph 3]

4 The plaintiff asserts that the parties lived together in a de facto relationship and a domestic relationship for a period of less than two years, and claims pursuant to the Act that she made substantial contributions of the kind referred to in section 20(1) (a) or (b) for which the plaintiff would otherwise not be adequately compensated if an order were not made and claims that the failure to make an order would result in serious injustice to her [see section 17(2)]. Essentially the defendant denies that the plaintiff made any of the alleged substantial contributions for which the plaintiff claims she would otherwise not be adequately compensated if an order were not made.

Direct financial contribution

5 The plaintiff’s claim to have made a direct financial contribution to the conservation and improvement of the property of the parties, is put as follows:

· A claim that the plaintiff worked and gave her wages to the defendant by banking them into a bank account in his name [statement of claim paragraph 4 (a)]

[The defendant denies that the plaintiff made any direct financial contribution to the property of the parties but admits that an indirect financial contribution to the living expenses of the parties was made in that when the plaintiff recommenced paid employment in about April 1998 and until September 1998 she is said to have contributed some moneys to the defendant by way of a contribution to their communal living expenses by depositing into his bank account the approximate sum of $4,470.00 by regular payments of differing amounts between 14th May 1998 and 30 September 1998 (defence paragraph 4 (a))]

· A claim that the plaintiff also did housework for the defendant's adult son, Gary, who is said to have paid her for that house work, she alleging that she gave that money to the defendant or spent it on his behalf. [statement of claim paragraph 4 (b)]

[The defendant denies that the plaintiff did housework for the defendant's adult son but admits that the defendant's son paid a contribution of $50 per week by way of board while he lived in the defendant's house. The defendant alleges that the plaintiff received

this

money and denies that the plaintiff gave any of this money to the defendant or spent it on his behalf (defence paragraph 4 (b))]

6 Generally in answer to paragraph 4 of the statement of claim the defendant asserts:

· That all household expenditure on groceries, petrol, clothing and other household items was conducted by way of account payments at Hastings Co-op in Wauchope, all of which payments were made by the defendant out of his bank account on a monthly basis after receipt of the account. [defence paragraph 4 (c)]

· That all other expenses such as rates, petrol, car repairs, social expenses, clothing and all utility bills were paid for by the defendant. [statement of claim paragraph 4 (d)]

Non-financial contribution

7 The plaintiff then claims to have made a non financial contribution towards the improvement and conservation of the property of the parties which claim is put as follows:

· A claim that the plaintiffs picked fireweed on the property of the defendant to improve the pasture. [statement of claim paragraph 5 (a)]

[The defendant asserts that the plaintiff made a minimal non financial contribution towards the improvement and conservation of the property of the parties in that the plaintiff is said on 2 or 3 separate days to have picked fireweed over an area of approximately 2 acres maximum out of the 180 acre property (defence paragraph 5 (a))]

· A claim that the plaintiff assisted with the management of the cattle on the property from which the defendant is said to have derived an income. [statement of claim paragraph 5 (b)]

[The defendant asserts that the plaintiff made a minimal non financial contribution towards the improvement and conservation of the property of the parties by on two or three occasions

only

assisting in caring for two of the poddy calves. Otherwise the defendant denies that the plaintiff assisted with the management of the cattle and asserts that all cattle and land management was conducted by the defendant and his son ( defence paragraph 5 (b))]

· A claim that the plaintiff implemented and maintained a cattle register in which she is said to have recorded sales, purchases, births, deaths, inoculations and descriptions of cattle. [statement of claim paragraph 5 (c)]

[The defendant admits the plaintiff made a minimal non financial contribution towards the improvement and conservation of the property of the parties in that she assisted in the management of the cattle on the property insofar as she wrote up a brief summary of the 23 head of cattle maintained by the defendant (defence paragraph 5 (c))]

8 The plaintiff claims to have made a contribution towards the welfare of the parties by performing almost all of the household chores for the whole of the relationship. [statement of claim paragraph 6 (a)]

[The defendant admits this allegation alleging however that the defendant assisted in washing up and alleging further that the defendant paid all communal bills including food, drink, alcohol, electricity, gas, telephone and other joint expenses and paid all moneys necessary for the repairs, registration and fuel and maintenance of the plaintiffs vehicle and gave the plaintiff money whenever she asked for it (defence paragraph 6)]

9 In consequence the plaintiff claims an order under Part 3, Division 2 of the Act, to adjust interests in property namely an order that the defendant pay to her the sum of $30,000.

[The defendant seeks that the plaintiff’s application pursuant to the Act be dismissed and costs on an indemnity basis]

The claim to a Constructive Trust

10 The plaintiff claims that all material times from the commencement of cohabitation the parties intended to marry and to apply their capacities and skills for work in their respective roles, the plaintiff as a de facto wife and home maker and the defendant as the financial provider, in a joint endeavour, one purpose of which was to provide the parties with permanent financial security and benefits.

[The defendant generally denies the allegations in this paragraph of the statement of claim and alleges that the cohabitation did not commence until such time as the plaintiff had secured a leave of absence without pay from her regular employment in Sydney]

11 In this regard the plaintiff alleges that:

· She contributed her wages and gave them to the defendant. [statement of claim paragraph 8 (i)]

which the defendant alleges having applied the same to communal living expenses]

· She performed housekeeping tasks for the plaintiff and his son. [statement of claim paragraph 8 (ii)

[The defendant admits this allegation]

· She contributed to the conservation and improvement of the defendant's assets. [statement of claim paragraph 8 (iii)]

[The defendant denies this allegation except for the admission that the plaintiff on two or three separate days picked fireweed over an area of approximately 2 acres maximum out of the 180 acre property]

· She helped care for the Defendants cattle. [statement of claim paragraph 8 (iv)]

[The defendant denies this allegation except for the concession that the plaintiff assisted in the management of the cattle on the property in writing up a brief summary of the 23 head of cattle maintained by the defendant]

12 The claim is that pursuant to the joint endeavour the defendant was able to acquire assets and improve his wealth in that the pasture and carrying capacity of the Defendants property were improved. [statement of claim paragraph 9]

(The claim is denied)

13 The plaintiff then alleges that the defendant promised her that he would provide financial support for work for the remainder of her life, the allegation being that he promised:

· That he would always take care of her;

"Would never kick him out of the house and he could live there for the rest of his life"

this conversation taking place when she and Mr Pike were separating.

· That he would always provide a roof over her head;

· That she would always be looked after; and

· That he would make her the beneficiary of certain of his investments.

[statement of claim paragraph 10]

14 The further claim is made that the defendant promised the plaintiff that he would provide accommodation for her for the rest of her life. [paragraph 11]

[The claim is denied]

15 The plaintiff further claims that the defendant held out to her that he would provide financial support for her and that he would provide residential accommodation for her upon the condition that she would dispose of real property which she owned. The claim is that in consequence, she transferred a property in respect of which she was the owner [383 Lake Edge Avenue, Berkeley Vale (folio identifier 215/222242) with a net equity of approximately $191,000, to Mr Arthur Pike for a consideration of $10,000 in September 1997. [statement of claim paragraph 12].

[The claim is denied]

16 The claim is that the plaintiff in divesting herself of that real property expected financial security from the defendant consequent upon the joint endeavour to achieve a reasonable income to meet her day-to-day needs and residential accommodation to be provided by the defendant. [statement of claim paragraph 13]

[The claim is denied]

17 The plaintiff asserts that in reliance on the defendant’s promises made and representations made to her, she acted in accordance with the joint endeavour. [statement of claim paragraph 14]

[The claim is denied]

18 The plaintiff alleges that the defendant’s assets have increased as a result of her efforts and expenditure pursuant to the joint venture in that the pasture and carrying capacity of the defendant’s property are said to have been improved. [statement of claim paragraph 15]

[The claim is denied]

19 The further claims which are pursued are as follows:

· That it is unconscionable for the defendant to retain the benefit of such increase. [statement of claim paragraph 16]

· An alternative claim is to a charge for the benefit of the plaintiff over the Defendants property at 1455 Pappinbarra Road, Hollisdale, New South Wales in respect of an amount of $205,000. [statement of claim paragraph 18]

· An alternative claim to a declaration that the defendant holds all his interest in the Hollisdale property on trust for herself and himself as tenants in common in shares 19.1: 23.9 pursuant to a constructive trust. [statement of claim paragraph 19]

· An alternative claim that the defendant is estopped from denying that the plaintiff has an interest in the Hollisdale property on the ground that she has acted to her detriment. [statement of claim paragraph 20]

[These claims are denied]

20 The defendant also claims that the plaintiff’s claim is statute barred.

The Facts

1982 - 1989

21 The plaintiff’s evidence was that she had lived in a de-facto relationship with Mr Pike from 1982 up to 1989. During that time she was the principal income earner. Mr Pike’s factory had burned down and he was trying to re-establish himself. He was a much older man born in 1930. She had bought the property at Berkeley Vale in 1987 for $94,500 when they were living together and the property had been purchased in her name. She had taken a mortgage for $38,500 from the Westpac bank. At that time she had reverted to using her maiden name Denise, Bradley. The balance of the purchase price in the sum of $60,000.00, as the evidence revealed, had been provided by Mr Pike on an occasion some short time prior to exchange of contracts. Following the purchase, the plaintiff lived with Mr Pike in the Berkeley Vale property.

22 The plaintiff’s evidence was that when Mr Pike and she had separated in July 1989 there had been no formal property settlement. She gave evidence pursuant to leave to supplement her affidavit evidence to the effect that she had said to Mr Pike that she, "Would never kick him out of the house and he could live there for the rest of his life" - this conversation taking place when she and Mr Pike were separating.

1 December 1989

23 The plaintiff had had full-time employment since 1 December 1989 as a clerk of the Commonwealth government.

1994

24 The plaintiff gave evidence that in about 1994 she visited the Berkeley Vale property and had a conversation with Mr Pike's then girlfriend Elaine who said that she had just found out that the house was in the plaintiff's name. Elaine suggested that the plaintiff should transfer the house to Mr Pike. Elaine indicated that she was not prepared to marry Mr Pike because the property was not in his name. The plaintiff's further evidence was that when she returned to her own home she telephoned Mr Pike and had with him a discussion to the following effect: He said, "I want you to give me the house". She said, "I will sell the house and I will have half". He laughed and said, "I don't think so. I will see a solicitor”.

March/April 1997

25 It appears in that in about March or April 1997 the plaintiff renewed a previous acquaintance which she had had with the defendant. Apparently in about June 1997 she visited the defendant at Hollisdale and the parties commenced a sexual relationship at about this time.

Pre-June 1997

26 The defendant's evidence was that before she left Hornsby in about June 1997 she and the defendant spoke about getting married, she having said to him that she would not move up to Pappinbarra without the security of marriage. She recalled that before she had left Hornsby she and the defendant had planned to marry he having said to her that he never thought that he would get married again. Although she could not remember his exact words to her about getting married at the time she left Hornsby she recalled that they had agreed to marry.

July 1997

27 The plaintiff’s evidence was that she commenced to live with the defendant at Hollisdale on a full-time de facto basis in July 1997.

August 1997-April 1998

28 The defendant's evidence was that she took leave without pay from her employment with Centrelink from August 1997 to April 1998.

September 1997

29 Her evidence was that in about September 1997 the defendant received his redundancy payment and was figuring out his financial future and that they had a conversation in which words to the following effect were said:

"I'm going to need more money to live for the next five years. After that I'm going to apply for the pension."

"You won't get the dole."

"Why not?"

"Because I own that house at Berkeley Vale and it will be combined with your assets"

30 On the plaintiff’s evidence, the next day the defendant initiated a discussion with her about her ownership of the property at Berkeley Vale. On her evidence the defendant said to her:

"Why don't you give the house to Arthur (Pike). You don't need to worry about anything you will have a house over your head for the rest of your life. I don't need to have that extra house because I will never get a pension. No matter what happens between us you will always be looked after. You will always have a roof over your head and you will never have to worry. And it's only going to interfere with our lives".

What about my security?"

"Nothing is going to happen between us. And if it does you know that I am a man of my word and you will never have to worry. This will always be your home"

31 On the plaintiff’s evidence the defendant had often said to her that he would marry her and always take care of her.

32 Her evidence was that on the day in September 1997 when the defendant had discussed her ownership of the Berkeley Vale property with her, he had sat down and worked out with her that she had about $10,000 worth of debts and had said to her:

"Why don't you ring Arthur right now and tell him you will transfer the house to him for $10,000".

33 On her evidence on the very same day she telephoned Mr Pike and offered to transfer her ownership of the Berkeley Vale property to him for $10,000 which was a fraction only of its value.

34 The plaintiff’s evidence was that in late 1997 (on the evidence the transfer took place on 13 October 1997) she transferred ownership of her property at Berkeley Vale to Mr Pike for $10,000 and he paid out the mortgage.

15 October 1997

35 On the evidence the defendant retired from his employment with Telstra on 15 October 1997.

22 October 1997

36 On the evidence which I accept as reliable as given by Mr Pike he discharged the balance of the mortgage due to Westpac in the sum of $19,732.72 on 22 October 1997.

8 December 1997

37 Mr Pike sold Berkeley Vale on 8 December 1997.

December 1997 – January 1998

38 She gave evidence that in about December 1997/early January 1998 she and the defendant together attended the offices of the defendant’s financial adviser and in her presence the defendant’s financial adviser, Mr O' Toole, said to the defendant "Who are you making the beneficiary of these investments?". On her evidence the defendant had then said "Denise”. On her evidence, documents were written in her presence apparently confirming those instructions.

39 Mr Pike had had a heart attack and for about six to eight weeks she took leave without pay from work and cared for him and in those weeks she made the mortgage payments, this having been about October/November 1989. He then on sold the Berkeley Vale property by transfer in early December 1997 for $215,000.

13 February 1998

40 It appears that on 13 February 1998 the defendant rolled over his Telstra superannuation into a Managed Accumulation Pension Fund.

April 1998 – 18 January 1999

41 The plaintiff’s evidence was that she had worked full-time from April 1998 up to 6 July 1998. That from 6 July 1998 up until 18 January 1999 she had worked three days per week, her wages being when working full-time, $856.56 per fortnight net. When working part-time, on her evidence, her wages varied in the vicinity of $700 per fortnight net.

42 Her evidence was that she banked her wages into the defendant’s Westpac account No 523974. On her evidence mostly her wages were banked into that account on each second Thursday through the Port Macquarie Westpac branch. Her evidence was that she did not always bank her full wages and sometimes banked only part of them and paid debts. At this stage she did not have a recollection of any precise debts that she had paid other than a joint debt of about $121.00 paid to the Beechwood Hotel on 24 October 1997.

43 Her evidence was that for the whole of the relationship, other than for a two-week period after she had gone back to work full-time, she did all of the housework for the adults in the household, the household comprising herself, the defendant and the defendant’s son Gary, who had been born in December 1974 and who had lived as part of the household until August 1998.

44 The plaintiff’s evidence was that she did all of the driving to town to do the shopping, unpacking, cooking, cleaning, washing, ironing. Her evidence was that she made hot lunches for Gary and cooked dinner for him and made his bed and attended to his laundry and ironed his clothes. She also fed the dogs.

45 The plaintiff’s evidence was that from the time that she was unemployed she worked on the property as follows:

· Between August 1997 and March 1998 she picked fireweed on the property, working at this for a couple of hours most days at the defendant's request. This was picked from the weaners paddock on the property

· She had assisted with the management of the cattle on the property from which the defendant derived an income

· The defendant on a particular occasion had asked her to seed, by hand, half of the front paddock at the front of the house. She worked all day spreading the seed by hand and a few weeks later the defendant remarked to her that it had not seem to come up and that he did not think it would as it had been old seed.

· The plaintiff’s evidence was that she had implemented and maintained a cattle register in which she recorded sales, purchases, births, deaths, inoculations and descriptions of cattle.

· She also gave evidence that she hand reared a calf in about December 1997 for about two weeks and similarly hand reared another calf for two days after it had been rejected by its mother.

· Her evidence was that she helped with the rounding up of cattle approximately one-day each six weeks from 10.00am until 3.00pm on foot and helped tag them, check them, drench them and catch them for sale

46 The plaintiff’s evidence was that the defendant worked full-time at Telstra until October 1997 and often went away. His son worked from 5.00am in the morning and returned home after the hotel closed. On one occasion as a joke she put a picture of Gary on the table to remind herself of his presence and used to say that she was cooking meals for a ghost which meant that when the defendant was away she was left to care for the property and the 27 or so head of cattle on it.

47 The plaintiff’s evidence was that the defendant suffered from sleep apnoea. Her evidence was that at about the end of September 1997 the defendant was still working and was unable to drive as he was falling asleep at the wheel. At his request she accompanied him on his trip to Tamworth and stayed with him for three weeks and went also to another country town where she stayed with him for a week. He was at that stage a linesman for Telecom and was laying co-axial cable.

48 The Plaintiff's evidence was that she arranged the defendant’s medical appointments and purchased his medication. She encouraged and ensured that he took his medication and insisted that he wear a special sleeping mask. She also assisted him when he was poisoned by magic mushrooms, driving him into the hospital and assisting him generally in that regard.

49 Her evidence was that on the first weekend when she moved up to live with the defendant they had a discussion about an engagement ring. She was wearing a ring which was an old-fashioned square set diamond ring set with a diamond chip in a gold and silver setting. She had said to him that he did not need to buy her a ring and that they could use the ring which she had as an ‘engagement ring’ because she loved it. He had said words to the effect "Yeah, if that's what you want". The plaintiff’s evidence was that they were in the bedroom at the property and that the conversation took place in about July 1997. At the time the defendant was having a barbecue for a number of footballers. He was the president of the football club. She had walked out and showed Gary the ring and said to him "Look, do you like my engagement ring". They then said to the whole group of footballers and their wives that she and the defendant were engaged and were congratulated accordingly.

50 The plaintiff’s evidence was that Gary had paid her $50 per week for board. Her evidence was that the arrangement which she had reached with the defendant was that she was to have $50 per week left out of her wages and the money received from Gary as her own money.

July 1998

51 The plaintiff’s evidence was that in about July 1998 they had started to ‘fight’ a lot about the housework. She was getting up at 5.00am and would make Gary's lunch, get ready for work and drive the one-hour which it took for her to reach her workplace. She had started work at 7:30am. She would then finish at 5.00pm and would arrive home at 6.00pm and would then have to cook dinner and carry out all the household chores, including the washing and ironing. When she returned to work the defendant started to hang the washing out for her. He never brought it in although after the first time when she said to him that he could have folded it, he swore at her requiring her to do it herself. Her evidence was that the defendant once cleaned the bathroom. Her evidence was that she carried out washing and ironing for Gary and for his girlfriend and for their baby for about 4 - 6 weeks prior to them obtaining a washing machine. Her evidence was that during the period only that she was working full-time, the defendant carried out shopping she writing out a list for him. Her evidence was that in about April 1998 the defendant complained about meals not being cooked and his clothes not having been ironed. Again her evidence was that he swore at her requiring her to do everything herself again and said to her words to the effect "Why have a dog and bark yourself".

52 On the plaintiff’s evidence in July 1998 she gave up working full-time and went back to working three days a week.

8 August 1998

53 The plaintiff’s evidence was that she and the defendant had decided to be married on 8 August 1998 being a Saturday. That date had been selected because she had married her previous husband on the 9th of September 1989. She recalled the defendant saying to her, when they agreed on the marriage date, words to the effect that it would show that he was really the best man. He was apparently referring to the fact that he had been the best man at the plaintiff’s first marriage to Mr Jeff Carruthers. In about January 1998, she had written to Centrelink referring to “preparation for my wedding in August”.

54 The plaintiff’s evidence was that before she left Hornsby and moved to live with the defendant they had discussions about her working. He had insisted that she not work saying to her that no wife of his had ever worked. He had said to her that he was the breadwinner in the relationship and that she could have anything that she wanted. She recalled this as having been said in the presence of a number of other persons because they began laughing and playing a game saying "can she have…”; and the defendant saying yes; someone saying "can she have a dishwasher” and the defendant saying "no. I'll be the dishwasher”.

55 The plaintiff recalled the defendant saying that she would not need to work and would have enough to do on the farm.

17 October 1998

56 Her evidence was that she and the defendant separated on 17 October 1998 on which date she moved out of the house. On her evidence the defendant had said to her a few weeks before the 17 October 1998 "What did you do today". She had said, (thinking that he meant something important), "nothing". He had then said to her "Well you can fuck off then. I don't need you. I can look after myself". She recalled that she had given the defendant the whole of her fortnight’s pay a day or so before this. She said "I've just given you all my pay. Isn’t that convenient for you". He said "All right, make a list of what you need and I’ll give you enough money to move out". She was allowed to take her clothes, and a CD player that she had bought when she first went to work. On her evidence, a few days later the defendant gave her $1,000 and a little later $400.

57 The plaintiff’s evidence was that she moved into a unit at Wauchope and that the defendant had said to her "You can buy anything you need at the Co-op until you get back on your feet". Her evidence was that she did this and that after the defendant received the first monthly statement he said to her that he had received the bill and she owed him a particular amount (she could not recall how much). On her evidence she borrowed the money and repaid him.

58 On the plaintiff’s evidence at this time she was only working part-time and could not obtain a full-time position until January 1999. She continued to use the defendant’s Co-op account and paid him everything that she booked up to his account. While she was doing this, she was accruing some benefit to his points with the Co-op.

17 October 1998 – January 1999

59 On the plaintiff’s evidence during the period 17 October 1998 until 17 January 1999 the defendant continued to visit her about three or four times a week and they continued to have sexual relations. She also visited him. He asked her to put his name on her car insurance policy so that he would be covered when he drove it which he often did. She did so. On the plaintiff’s evidence, when they had separated in October 1998, the defendant had loaned her $20,000 with which to purchase a car and arranged for her to sign a loan agreement. The agreement states that the loan was $26,000 in that she was to repay it interest-free at the rate of $100 per week. The defendant had said to her: "Interest has to be hidden so that I don't have to declare income for tax".

60 The plaintiff’s evidence was that during the period of their cohabitation she had a Lowes account and gave the defendant a card. On her evidence at the beginning of June 1999, well after their separation and without her authority, the defendant charged $165.20 to her account and never spoke to her about it. She had had to pay this.

Christmas 1997

61 The plaintiff’s evidence was that in about Christmas 1997 the defendant had an argument with Gary and said to her "I don't have to leave him the house" and she said to him "What about me". On her evidence the defendant said to her that his son would not kick her out of her home and that he would leave the money to her.

Evidence of Mr Gary Manning

62 Evidence was also given by the defendant's son Mr Gary Manning. His evidence was that as at mid-1997 he was living with his father and had been living with his father since approximately 1991 when his father had first purchased the property. Shortly after that purchase, Mr Gary Manning had obtained a job at a timber mill and completed his apprenticeship there and continued to work there. The mill was at Boral Herons Creek.

63 On Mr Gary Manning's evidence, he moved out of his father's house into his present address at Beachwood in about December 1998.

64 Mr Gary Manning's evidence was that whilst he lived with his father, he would give his father $50 each week by way of a contribution to bills and food. His evidence was until mid-1997 when the plaintiff moved into the house, the defendant would usually be working away from home during the week and would only return at weekends. At weekends the defendant and his son would do such work with the cattle as would be required. When the property was first purchased in 1991, Mr Gary Manning had carried out a six-month course in animal husbandry and on his evidence, he used to do most of the cattle work and all of the animal work, including such things as cutting the steers, vaccinating and dosing cattle.

65 On Mr Gary Manning's evidence, after the plaintiff moved in, there was no change to the arrangements for the cattle work and they would usually round the cattle up only four to five times a year, once to vaccinate, once to drench and possibly once or twice to cull in order to ship some to market. Rounding the cattle would take approximately two hours. He did recall the plaintiff walking around behind them on one or two occasions when they had to round the cattle up. On his evidence, the cattle, being beef cattle, required very little work other than the processes already referred to and were never fed. On his evidence, they never carried out cattle work during the week unless he was on holidays and on those occasions, they would only work with the cattle possibly once or twice every two months or thereabouts usually on a weekend.

66 Mr Gary Manning could not recall ever having seen the plaintiff picking fireweed on the property or seeding paddocks. However he accepted that he would usually be at work during the week.

67 Mr Gary Manning's evidence was that after the plaintiff moved into the house, he continued to give $50 to his father until his father said to him that he was to give the money to the plaintiff. His evidence was that while he continued to live at the house, the plaintiff shopped for groceries and would usually cook tea and also carried out his own washing. In respect of making lunch for him, his evidence was that he would usually make his own sandwiches when he got up in the morning which was usually before the plaintiff and his father would arise. The only sense in which he could recall the plaintiff ever making his lunch was that she would from time to time put leftovers from tea into a container and say to him words to the effect "Have that for lunch tomorrow."

68 Mr Gary Manning’s evidence was that in about May 1998 he had met his current wife. His evidence was that between approximately August 1998 and December 1998 when he formally moved out of his father's house, he would have returned there only usually to collect clothes and to sleep on two occasions, otherwise staying with his then girlfriend whom I understand to be his present wife. To the best of his recollection, the plaintiff never carried out any washing for his girlfriend or for her child. His evidence was that from approximately July or August 1998 when he was all but living with his present wife, his present wife, Nicole, was carrying out all his washing and ironing.

Evidence of the defendant

69 The defendant’s evidence given in his affidavit of 29 March 2001 was as follows:

“1. I am James Ernest Manning of 1455 Pappinbarra Road, Hollisdale, 2446, retired Telstra employee.

2. I own a farm at Hollisdale, in the hinterland of Port Macquarie, which I bought in three separate lots in or about 1990 or 1991. I paid $95,000.00 for one lot of 60 acres and a house and I paid a further $60,000.00 for a further two lots which are the back two paddocks.

3. ...I have not renovated the house nor have I improved the pastures significantly beyond the date on which I first purchased the farm. The property carried, when I bought it, 23 head of cattle and continues to comfortably carry that amount of cows.

4. The cattle generate some income for me, by sale of excess heifers each year. I would say that the annual income (before expenditure) would be between $1,000.00 or $2,000.00 per annum.

Circumstances of my entering into a de facto relationship with the Plaintiff, Denise Susan Carruthers .

5. I first met the Plaintiff approximately ten years ago. She was then married to someone I knew named Jeffrey Carruthers in Sydney. I did not have any further contact with the Plaintiff for a number of years until I met her again, by virtue of the fact that she was in touch with a good friend of mine, Janice Craig, in early 1997. I believe that I first renewed my acquaintance with her in or about March or April 1997 when I visited Janice Craig’s house in Wyong.

6. I subsequently visited Janice’s house again in, I believe, May 1997 and I went out with the Plaintiff, Janice and her partner to the RSL. I subsequently invited the Plaintiff to visit me and she did so visit me in approximately late June 1997 for a week. During that week, we commenced a sexual relationship.

7. During the week that she visited my house in May 1997, we hit it off and we discussed living together in my house. At that time, the Plaintiff was working as an investigator for either the Australian Taxation Office or Centrelink, I do not recall which, in Hornsby, Sydney. She said to me words to the effect:

“I will go back to Sydney to arrange an indefinite leave of absence without pay so that if our relationship works, I can get a transfer to somewhere in the Mid North Coast area and if it doesn’t work, then I can go back to my job in Hornsby”.

8. The Plaintiff and I did speak generally of marriage if our relationship was successful. We did speak about a possible date and the date of 8th August 1998 was suggested although never finally fixed. The conversation as set out in paragraph 17 of the Plaintiff’s Affidavit sworn 6th March 2001 is accurate.

9. As our relationship developed following her starting to live with me in July 1997, we did not discuss the issue of marriage any further and, indeed, by early 1998, the relationship had deteriorated to the point where, in my mind, marriage was unlikely.

10. Prior to the Plaintiff moving in with me, we had a discussion in relation to financial affairs. I realised that if she took indefinite leave of absence without pay, I would have to support her financially while she lived with me. I was quite willing to support her financially until such time as she decided that she wanted to continue living with me at which time I understood her to intend to transfer her public service position to Port Macquarie or somewhere else convenient on the Mid North Coast.

11. I deny saying to the Plaintiff words to the effect:

“No wife of mine has ever worked”.

I have been married twice before. My second wife, to whom I was married for eleven years, worked on a part time basis, two or three days per week, for much of our marriage.

12. I recall joking with the Plaintiff, Fred Craig and Janice Craig and their neighbours that the Plaintiff could have “anything she wanted”.

13. I deny saying to the Plaintiff words to the effect:

“You won’t need to work, you’ll have enough to do on the farm”.

I had bought the farm in order to occupy myself during my retirement. It was only a small farm having 23 head of cattle and therefore would not generate much work other than sufficient to keep me active and pottering around for a few hours a day.

Commencement of our cohabitation.

14, The Plaintiff arrived with what I understood to be all her worldly goods and belongings at my house in or about July 1997. She arranged for a furniture truck to bring her belongings from Sydney and I paid for it in the amount of $400.00 by Westpac cheque drawn on my account dated 29th July 1997. When she arrived at my house, she had with her mostly clothes, plants, a few small pieces of furniture, a cabinet, a settee but no electrical or white goods.

15. The Plaintiff had her own car, a BMW worth, in my estimation, approximately $3,000.00 or $4,000.00. I also paid the repair and running expenses for this vehicle commencing 26th September 1997 when I paid $299.00 for her green slip and $253.00 for the registration. I subsequently paid on 30th September 1997 a speeding fine for the Plaintiff in the amount of $346.00, on 21st October 1997 approximately $1,700.00 in respect of insurance and mechanical repairs for the BMW, on 27th November 1997 $128.00 for a tyre for the BMW. These and other payments to or for the benefit of the Plaintiff are shown on the schedule to this Affidavit which is marked “A”.

Domestic arrangements during cohabitation.

16. From the date that the Plaintiff moved in, approximately 29th July 1997, until 15th October 1997, I continued to work full time for Telstra. I was a trained operator driving the tractor installing fibre optic cable and I would spend substantial periods of time working away from this area. I would usually travel to location on the Sunday night or Monday morning and return on Friday afternoon to my house at Hollisdale. Sometimes, the Plaintiff would come with me for the week, not because I asked to her to but because she wanted to come with me. We would stay in motels and I would pay all necessary expenses for her while she was away. At other times, she would stay at home while I went away working. Before Denise came to live with me, when I went away working I simply locked up the house and left the cattle to look after themselves.

17. The Plaintiff alleges in paragraph 14 of her Affidavit sworn 6th March 2001 that I was unable to drive to Tamworth in September 1997. I recall the trip to Tamworth. We travelled there in my vehicle, a Hilux four wheel drive manual utility. Denise could not drive a manual car. She wanted to come to Tamworth and so she did. She did not do any driving.

18. On 15th October 1997, I retired from Telstra. Thereafter, the only work which I would perform would be at home on the farm. The property supports and has always supported approximately 23 head of cattle. I run that amount of beef cattle over the property. Although my farm work varies in intensity over the year, I would usually spend, after retirement from Telstra, up to three or four days a week, fencing, slashing, clearing up, tinkering with machinery, restoring equipment, and from time to time working the cattle.

19. As previously mentioned, I run 23 head of cattle on the farm. Being beef cattle, they require little work other than periodic checking, drenching, vaccinating, tagging, and culling for sale. We do not feed them hay or any other dry food. Gary, my son, and I would round them up three or four times a year for drenching, vaccinating, cutting of the bulls and culling once or twice a year in order to send a few of the calves to market. The whole process would probably take five or six hours on a weekend.

20. The Plaintiff did not really assist a great deal with the farm work or the cattle. I recall one occasion when she picked, over a number of days, fireweed over about a 100 square yard area in the weaner paddock. In relation to the allegation in paragraph 12(a) of her Affidavit sworn 6th March 2001 that she picked fireweed for months for a couple of hours most days, I deny same. To the best of my knowledge, she only ever picked fireweed on two days. Prior to my retirement from work on about 15th October 1997, I did not ever return home from being away for work and notice anything different in the paddocks as I would have done had the Plaintiff consistently picked fireweed.

21. I recall another occasion in which the Plaintiff scattered clover seed over approximately a half acre near the shed as I went before her slashing. This was on one day only.

22. The Plaintiff states at paragraph 12 (f) of her Affidavit sworn 6th March 2001 that she helped with rounding up cattle one day each six weeks. The cattle were rounded up at most six times a year in order to drench, vaccinate and cull them. I do not recall her ever assisting with drenching, vaccinating or cutting of the bulls.

23. The Plaintiff also claims in the abovementioned paragraph that she was involved in tagging the cattle on a six weekly basis. The cattle are tagged when purchased and not otherwise except for one occasion when we tagged to renumber because the numbers on the existing tags were fading. At that time, she recorded the numbers in the so-called cattle register.

24. The Plaintiff claims in the aforementioned paragraph of her Affidavit that she assisted on a six weekly basis in drenching the cattle. The cattle are drenched perhaps once every twelve to eighteen months, although the calves are drenched shortly after birth.

25. The Plaintiff claims in paragraph 12 (d) of her Affidavit sworn 6th March 2001 that she created and maintained a cattle register. The Plaintiff did adopt an already existing cattle register of sorts which consisted of an exercise book containing:

(a) approximately 2 pages of details of cattle treatment between 10th November 1997 and September 1998;

approximately 2 pages of entries relating to “problems with calves”; and

(c) 23 pages containing minimal notes as to the appearance of each of the cattle on the property.

Copies of these pages are annexed hereto and marked “B”.

26. The Plaintiff claims at paragraph 12 (e) of her Affidavit sworn 6th March 2001 that she assisted in hand rearing of calves. The Plaintiff from time to time helped look after the poddy calves. I recall one occasion where she looked after a calf, Lucky, for twelve days after its mother had died before the calf itself died. We both fed the calf daily. I would inject it. It was really only a matter of spending five or ten minutes three or four times a day checking on the animal. The other animal she refers to in that paragraph, “Bambi”, was not rejected by its mother. It went down with a tick, and was nursed back to health by both of us and then released back into the field. Again, it was only a matter of spending half an hour a day checking on it, feeding and tending to its needs.

Domestic chores over course of cohabitation.

27. The plaintiff performed all domestic chores such as cooking, washing, shopping and other household chores. My adult son Gary, who is now aged 26, was living with me when the Plaintiff first arrived in July 1997. He was then working at Herons Creek Mill and he paid me $50.00 per week by way of board. He remained there until approximately July 1998. Accordingly, cooking and washing etc was for three people rather than for two. The Plaintiff knew Gary lived with me before she moved in.

28. The Plaintiff alleges in her Affidavit sworn 6th March 2001 that she did all the driving to town for shopping, unpacking, cooking, cleaning, washing, ironing etc. This is true, although she did less and I did more when she went back to work in April 1998.

29. The Plaintiff claims that she made hot lunches for Gary. This is not true. Gary was working at Herons Creek Mill and took his own lunch. He made his own sandwiches.

30. The Plaintiff claims that she cooked dinner for Gary. This is true. She was cooking dinner for me as well.

31. I do not recall ever complaining about what the Plaintiff did or did not do by way of housework. I deny the words attributed to me by paragraph 20 of the Plaintiff’s Affidavit.

32. The Plaintiff claims that she did all usual domestic tasks. I would help her wash up. Feeding the dogs was a matter of giving them the scraps from the table once every couple of days.

33. The Plaintiff claims in her Affidavit sworn 6th March 2001 that she assisted me when I was poisoned by mushrooms by driving me to the hospital, staying with me and taking me home. This is true. It was over a period of one day.

34. The Plaintiff claims in her Affidavit sworn 6th March 2001 that she arranged my medical appointments and purchased my medication and that she insisted that I wear a special sleeping mask for my sleep apnoea. In fact, I made an appointment myself with my own doctor, Dr Khamis at Wauchope, which I subsequently attended on my own. I was subsequently referred to the sleep clinic at Port Macquarie Base Hospital. The Plaintiff drove me to the sleep clinic to stay overnight and collected me the next morning.

35. I returned to the sleep clinic on my own some two to three weeks later after being notified to do so by the hospital and was told that I suffered from sleep apnoea. At that time, I was given pamphlets for machines one of which I subsequently purchased in or about March 1998. I recall saying to the Plaintiff when I returned home that day words to the effect:

“If I don’t get this machine to help me breathe there is a chance I could die”.

36. I commenced using the machine straight away. Within a week, Denise moved out of my bedroom into the spare bedroom saying words to the effect:

“It’s too noisy – I’m sleeping in the other room”.

This, in effect, marked the termination of our sexual relationship. The Plaintiff continued to sleep in the other bedroom until she left my house on or about 17th October 1998. To the best of my recollection, we had sex less than five times between March 1998 and October 1998.

Financial arrangements during cohabitation.

37. When the Plaintiff first came to live with me, the Plaintiff and I did not speak much about our respective financial positions. I knew that she had very little money. This is one of the reasons that I paid for the removalist when she came up from Sydney. I had promised to support her while she lived with me and I did. I paid all bills such as rates, power, telephone and the like. I paid all bills and expenses in respect of my vehicle and her vehicle and I refer to earlier parts of the Affidavit where I have listed payments in respect of the BMW owned by her.

38. I maintained an account at Hastings Co-op in Wauchope and had done for a number of years. All food and household supplies and fuel were put on account so that when the Plaintiff went shopping, she would charge everything to my account. Likewise she would fuel her car at the Co-op petrol station and bill it to my account. She also put clothes and presents on the account.

39. The Plaintiff, while Gary, my son, continued to live with me, retained the $50.00 per week which he paid by way of board. The Plaintiff would ask me for money from time to time. Any time she asked, I gave her whatever she wanted. To the best of my recollection, I would give her $50.00 or $100.00 every couple of weeks. I would also pay for all of our social expenses. I was President of the Beechwood and Hastings Rugby League during this time and we would both go out socialising pretty much every Saturday night and occasionally during the week. she was also interested in football and was and still is Administrator of the local League.

Disillusion (sic) in the relationship.

40. The relationship between the Plaintiff and I started to deteriorate after Christmas 1997. At that time, we were both involved in the local Beechwood and Hastings rugby football league and would go out at least every Saturday night and occasionally during the week usually together. Both of us would drink to excess when we went out. We would also both drink at home, usually everyday. The Plaintiff became very argumentative when drunk and I began not to enjoy her company.

41. The situation further deteriorated after March 1998 when the sexual relationship between us more or less ceased following the use of the sleep machine.

Re-commencement of the Plaintiff’s employment .

42. To the best of my recollection, at some point in or about early 1998, the Plaintiff sought and obtained a transfer of her employment through the public service to Centrelink at Port Macquarie. The Plaintiff alleges in her Affidavit sworn 6th March 2001 that she recommenced full time work in April 1998 for three months until 6th July 1998 whereafter she dropped back to three days a week. I presume that this is the case. To the best of my recollection, in or about July 1998 the Plaintiff said to me words to the effect:

“Full time is too much for me – I’m going back to casual”.

Financial contribution by Plaintiff to household.

43. To the best of my recollection, when the Plaintiff returned to work in or about early 1998, she contributed some of her wages to our mutual living expenses. I have no recollection of her giving me cash at any time but she did bank some money into my Westpac Bank account No 523974 as follows:

Schedule of payments by Plaintiff to my Westpac bank account:

14th May 1998 $700.00
28th May 1998 $600.00
11 June 1998 $570.00
29th June 1998 $600.00
10th July 1998 $600.00
24th July 1998 $400.00
7th August 1998 $500.00
3rd September 1998 $500.00 $4,470.00

44. I have identified the above payments by reference to my bank account statements and to the further and better particulars provided by the Plaintiff. In all cases, I note that by comparison with her own banking records provided, she did not pay to me all of her pay.

45. In relation to the allegation within the further and better particulars provided by the Plaintiff that cash was paid by the Plaintiff to me, I deny same.

46. In relation to the allegation within paragraph 10 of her Affidavit sworn 6th August 2001 that the Plaintiff paid bills with some of her money, I say that I at all times paid the usual recurrent bills. All services were in my name as was the Hastings Co-op account. In respect of the debt to Beechwood Hotel, the Plaintiff used to run up big tabs for cigarettes and drink. I usually paid cash. The most I ever accumulate is $10.00 or $20.00. If the Plaintiff in fact paid a debt of $121.00 it would have been her own debt.

47. In relation to the allegation within the further and better particulars that the $50.00 board paid by my son, Gary to the Plaintiff was substantially returned to me by deposit into my account or by cash, I deny same. I am unable to find any evidence within my bank statements of deposits of $50.00 amounts or deposits by the Plaintiff other than those referred to in preceding paragraphs hereof. I do not recall the Plaintiff ever giving me cash.

Formal termination of relationship; vacation by Plaintiff .

48. By late 1998, both of us had agreed that our relationship was no longer working. In or about September or early October 1998, I said to the Plaintiff using words to the following effect:

“If we keep this up [meaning living together] I’ll have a heart attack. I think we had better separate”.

To the best of my recollection, the Plaintiff said something to the effect:

“Yes you’re right”.

I deny the words attributed to me in paragraph 30 of the Plaintiff’s Affidavit sworn 6th March 2001.

49. By this time, as noted earlier, the Plaintiff had managed to transfer her employment to Port Macquarie. The Plaintiff ultimately moved out 17th October 1998. I recall that I paid by cheque for the bond and the first months rent on her flat by cheque dated 15th October 1998. I subsequently purchased a wardrobe for her costing $400.00 on or about 21st October 1998.

50. The Plaintiff alleges in paragraph 30 of her Affidavit sworn 6th March 2001 that she was allowed only to take her clothes and a CD player. The Plaintiff in fact took everything that she had brought into my house in or about July 1998. The CD player was in fact my CD player which I had bought at Retravision in Wauchope. I gave it to her when she left.

51. I said to the Plaintiff:

“You can use my Co-op account for the time being if you like. That will give you an extra months credit.”

It was understood between us that she would pay me back once I had paid the bill.

52. After the Plaintiff moved out on 17th October 1998, I visited her twice in late October or early November. I stayed overnight with her on one occasion. We shared a bed. She said to me words to the effect:

“Don’t get the idea you are having sex with me, you’re not coming here and using me like that”.

I replied to her using words to the effect:

“If you think that, I’m going home”.

53. After that occasion, I only ever went to her flat in order to put her mail in her mail box. I never went in again.

54. At no time following on separation on 17th October 1998 did I have sex with the Plaintiff. At no time since 17th October 1998 did the Plaintiff return to my house.

Circumstances of $26,000.00 loan to Plaintiff .

55. At about the time the Plaintiff moved out of my house, she was trying to buy a new car. She was then living (and I believe continues to live in a flat in Waugh Street, Wauchope) and was working in Port Macquarie, a distance of approximately 20km each way. The Plaintiff tried to obtain finance for a new car and in fact obtained a new car but the finance deal fell over. The Plaintiff said to me words to the following effect:

“Will you lend me $20,000.00 to pay for the car ?”

I agreed. The Plaintiff and I visited my accountant and my accountant drew up the undated loan agreement which is annexed hereto and marked “C”. In fact, I only advanced to the Plaintiff the sum of $20,000.00. This was at my accountant’s suggestion. However, because I am in receipt of an allocated pension and the farm is regarded as a hobby, I don’t pay tax or even have to put in a return unless my other income exceeds the current tax threshold. The interest on the car loan would be well below that threshold and I have no other income.

56. The Plaintiff has been repaying me over time. As at 1st November 2000, she was approximately three or four weeks behind in repayments.

57. When the Plaintiff purchased her vehicle, she said to me words to the effect:

“I’m going to put you down as a nominated second driver in case you happen to drive the car

”.

In fact, I never drove her car.

58. In relation to the Lowes account referred to by the Plaintiff in paragraph 36 of her Affidavit sworn 6th March 2001, I say that during the course of our co-habitation, I said to the Plaintiff words to the effect:

“I’m going to get a Lowes account”.

She said to me:

“I already have one, why don’t you just use it”.

A second card was subsequently issued on her account. Annexed hereto and marked “D” is a copy of the front and reverse side of the card. I recall using the card on or about 1st June 1999. I assumed the bill would be redirected to me.

My financial circumstances since retirement from Telstra .

59. On or about 15th October 1997, I retired from my position at Telstra where I had worked as a plant operator for approximately 17 years. On retirement, I received the sum of $149,000.00 by way of redundancy/superannuation payout which I remained in Telstra’s rollover fund until February 1998. I subsequently rolled the money over into an allocated pension with Bridges which would provide me $1,030.00 per calendar month until the capital is exhausted. I was born on 17th January 1937 and, as at the date of my retirement, was 60. I am now 63.

60. I have always been aware that the value of my land would preclude me from obtaining any State benefits such as dole or old age pension. When I retired in October 1997, Telstra directed me to fill out applications to the DSS for state benefits. The Plaintiff helped me do this even though I knew that I would not be eligible just by virtue of my own assets. The Plaintiff’s Berkley Vale property was irrelevant to my eligibility or otherwise for State benefits. In due course, the application was submitted and rejected by the DSS.

61. As and when I reach the age of 65 I believe that I will be entitled to a small pension which will enable me to support myself together with the income from my investments.

62. The Plaintiff claims in her Affidavit sworn 6th March 2001 that I made her the beneficiary of my investments. This is true. I did advise my accountant to make her the beneficiary of my investment. However, this was at an early stage in the relationship, being late 1997 or very early in 1998, and I subsequently changed my mind and advised my accountant otherwise after the relationship had ended.

Sale of Plaintiff’s house for $10,000.00 .

63. At some point between commencement of cohabitation in July 1997 and September 1997 I became aware, I presume by reason of something that the Plaintiff said to me, that she had an interest in real property in Berkley Vale. I believe that she also told me that Arthur Pike lived there. I have known Arthur Pike for approximately 38 years. We first came into contact by our respective businesses.

64. Between cohabitation and September 1997, I became aware through information from friends that Arthur Pike had lived with the Plaintiff for a number of years prior to 1986...but for some reason unknown to me the property was in the Plaintiff’s name...To the best of my knowledge, Arthur Pike continued to live in the house and pay the mortgage.

65. In or about September 1997, the Plaintiff said to me words to the effect:

“I need $10,000.00 to pay a credit card bill and some other debts”.

At the time, the Plaintiff appeared to be really upset and then further said:

“I don’t know what I’m going to do Arthur was to pay that bill”

66. This occurred shortly after I became aware of the circumstances which gave rise to her ownership of Arthur Pike’s house. I said to her words to the effect:

“Why don’t you sign the Deeds back to Arthur for $10,000.00 ?”

67. The Plaintiff claims in her Affidavit sworn 6th March 2001 that I suggested that she dispose of the Berkley Vale property for $10,000.00 so that I would be able to apply for the dole and not have to worry about her interest in that property being taken into account. This is not true. She also claims that I encouraged her to execute this transaction by making promises as to her future accommodation and security. This is also not true. I said nothing of the sort.

68. She did not tell me precisely what she had done. However, I did recall her saying on a number of occasions after my suggestion:

“Arthur hasn’t sent me the money yet”.

And then, sometime after that, that:

“I’ve got the money for the credit card”.

I recall no further conversations with her in relation to the matter.”

Mid November 1998 – early January 1999

70 Evidence was also given by Mr Brian Walker of Hollisdale. He is a close friend of the defendant. In about November 1998 his de facto wife and he were having problems in their relationship. His evidence was that he moved to the defendant’s house and resided there from the second week in November 1998 until early January 1999. On his evidence, during that eight weeks or thereabouts he spent every day and night at the defendant's home. He recalled the period clearly because he and the defendant were working together on the mechanical restoration of an old bulldozer, working every day and that he continued carrying out that work even into January 1999. During those periods of time he spent 7.00am to 6.00pm, after his reconciliation, at the defendant’s home and continued to work on the bulldozer which was not completed until early 1999. On his evidence, over the period in which he resided at the defendant’s house, he did not see the plaintiff at all and the only time that he had seen her since the plaintiff and the defendant had separated, was shortly after Christmas 2000 when they saw her driving past the defendant’s house. During the time he had resided at the defendant’s house, he did not recall the defendant going out at all other than to bowls every Wednesday.

Evidence of Mr Pike

71 Evidence was also given by Mr Arthur Pike, who had formed a relationship with the plaintiff, then known as Denise Bradley, in about 1982. They had not lived together initially but moved in together once Mr Pike rented a house in Concord.

72 Mr Pike's evidence was that at one point in his relationship with the plaintiff, he sold his Castle Hill house in order to effect a property settlement with his ex-wife. He had enough money remaining (together with the proceeds of a personal injury settlement) to place a deposit of approximately $60,000 on a new house. He decided to purchase a house at 383 Lake Edge Ave, Berkeley Vale being 15/222242, which purchase took place in about February 1987.

73 Mr Pike's evidence was that prior to his meeting the plaintiff, he had had a business and factory premises at Roselle and that the factory had burned down in about November 1982. Following the fire he had commenced working full-time as a panel beater in Homebush working on a cash basis only. By February 1987 when the property at Lake Edge Avenue had been purchased, he had been working in the cash business for a number of years and had none of the necessary work and financial records which would support an application by him for a mortgage. He did however have approximately $60,000 to contribute towards the purchase and associated expenses and the only way that he could complete the purchase of the house was to arrange for the plaintiff to take out a mortgage for the balance and accordingly the house was put in her name. To the best of his recollection the plaintiff worked casually as a bookkeeper over that period.

74 Mr Pike’s evidence was that he did say to the plaintiff at the time of the purchase words to the effect that when he would die the house would be hers. His evidence was that at the time, he anticipated that she would live with him until he died rather than she leaving him after a few years together. The purchase had taken place in 1986 and he had paid all moneys necessary for the purchase, including the $60,000 deposit and the stamp duty and the legal fees.

75 Mr Pike’s evidence was that he lived in the house from 1987 until about 1997 when it was sold. During the time that he lived in the house, he had made all required payments against the mortgage and in respect of rates, maintenance and the like.

76 His evidence was that in approximately 1989, the plaintiff left him and went to live with Mr Carruthers whom “she subsequently married”. Clearly he believed that she had married Mr Carruthers.

77 His evidence was that he suffered a heart attack in 1990 and recalled the plaintiff coming to stay with him for a period of about three weeks to help look after him. She was then working and he recalled driving her to work towards the end of the three-week period. To the best of his recollection she made no payments towards the mortgage when she was there and all payments were made by him.

78 Mr Pike gave evidence that he remained friendly with the plaintiff but never got around to talking to her about transferring the house into his name. Then in about 1994 or 1995 she said to him that she wanted half of the house (referring to the sum of $100,000). He ignored her demands having obtained legal advice. From time to time thereafter the plaintiff returned to the same subject and lowered the amount which she was asking to $50,000 and then kept lowering the amount until in about 1997 she said to him that she would take $10,000. In that regard in about 1997, he paid her $10,000 and she signed the house over to him. At the same time, he sold the house and moved to his current address, using part of the sale proceeds to discharge the then remaining mortgage of approximately $10,000, and paying the $10,000 to the plaintiff.

79 Mrs Carruthers denied that she had spoken with Mr Pike otherwise than following the discussion with Elaine and on the later occasion in September 1997.

Evidence of Mr Jeffrey Carruthers

80 Evidence was also given by Mr Jeffrey Carruthers who met the plaintiff in the early 1980s when she was single. He was then living in Baulkham Hills in a house owned by himself. In the late 1980’s his relationship with the plaintiff changed and she indicated that she wanted to leave the man with whom she was apparently then living and to go to live with him. A short time after that she did so and lived with him in Baulkham Hills for about six months and about three months into the relationship they were married.

81 Mr Carruthers’ evidence was that after the first six months of the relationship the plaintiff and he moved to Beechwood, he having sold his home in Baulkham Hills and having provided all of the funds for the purchase of a home at Beechwood and they moved to Beechwood. On his evidence after about three months in Beechwood the plaintiff had left him and returned to Sydney.

82 Mr Carruthers’ evidence was that during their relationship he supported her totally except for the occasional food purchases made from her funds. He also gave her jewellery worth about $4,000 and when she had left for Sydney, he gave her about $2000 and invited her to take any furniture she wanted which she did.

83 Mr Carruthers' evidence was that he had heard nothing from the plaintiff until about three years after their separation when she telephoned and said that she wanted $10,000 as her entitlement from the marriage and could probably obtain more. He had asked where she would suggest he could get the money from and she had suggested selling his house and giving it to her. Following his obtaining certain advice he determined not to offer anything to the plaintiff and recalled a later communication probably by telephone in which she asked him whether he could not simply give her $5,000. Ultimately she agreed to orders whereby they retained their respective assets and she received no further payments from him.

Evidence of Mr Michael Reid

84 Evidence was given by Mr Michael Reid a valuer. He gave evidence in relation to the market value as at 22 May 2001 of the property at 1455 Pappinbarra Road, Hollisdale, fee simple in possession of $180,000.

Evidence of Mr Morten

85 Evidence was also given by Mr Morten who is an accountant and financial planner, having the defendant as one of his clients since 1994. He recalled that some time prior to the defendant's resignation in October 1997 the defendant said that he wanted to retire and Mr Morten said that the defendant could not do so as he did not have enough money. He then recalled that the defendant subsequently visited him and said that he was obtaining a redundancy payment from Telstra and asked for advice as to what he should do. Mr Morten referred the defendant to Bridges Personal Investment Services and a financial planner there, Mr Fred O'Toole.

86 Mr Morten gave evidence that the defendant ultimately chose to deal with his superannuation entitlements by rolling them over out of the Telstra Fund into the Portfolio Service Superannuation Fund and thereafter into an Allocated Pension. He recalled having a number of conversations with the defendant in relation to his entitlement or otherwise to a Commonwealth Government aged pension. He recalled on a number of occasions seeing the defendant in the company of the plaintiff and on one occasion, the plaintiff saying words to the effect that she had in the past on an occasion worked for Centrelink and knew that the defendant was not entitled to a pension. He also recalled the plaintiff saying words to the effect that she owned a house on the Central Coast which was not really hers and that when she sold it she would have to give the money back, or words to that effect.

87 Importantly in this regard the plaintiff accepted that she said or may well have said and was certainly not prepared to deny saying to Mr Morten, that she owned a house on the Central Coast which was not really hers. This evidence is very strongly suggestive of her then state of mind and of her state of mind at all material times. It detracts very considerably from the plaintiff's claim to have suffered substantial detriment in transferring the house to Mr Pike for the sum of $10,000. It suggests that there was no detriment in that course and certainly no substantial such detriment.

Credit of witnesses

88 The court accepts as generally reliable the evidence given by Mr Manning and Mr Pike. The plaintiff's evidence is not accepted as reliable to the extent that she believed that she had a substantive or realistic or serious claim to all or a substantial equitable interest in the Berkeley Vale property. The matter is referred to below. It is important in relation to credit to recognize that no challenge to the credit of Mr Garry Manning, Mr Walker, Mr Morten, Mr Carruthers or Mr Reid was mounted, as none of them were required to attend for cross-examination.

89 Notwithstanding that the court accepts generally as reliable the evidence given by Mr Manning and Mr Pike, it is appropriate to refer to the following matters. The plaintiff claims to have picked fire weed on the property of the defendant to improve the pasture and the defendant asserts that the plaintiff made a minimal non-financial contribution in that regard, he asserting in his pleading that on two or three separate days did she picked fire weed over an area of approximately two acres maximum out of the 180 acre property. To my mind, the appropriate finding is that the plaintiff certainly carried out more work by way of the picking of fire weed than the defendant is prepared to admit. Notwithstanding that being the case, the reasons for the court's later holding will appear from the reasons below.

90 Likewise, the defendant appears substantially to discount what seems to me to have been the fact, namely, that the plaintiff carried out the shopping, unpacking, cooking, cleaning, washing, ironing, making lunches for Garry and generally feeding the dogs and carrying out the tasks which she has given evidence of, including hand rearing some calves, maintaining the cattle register, seeding and assisting, from time to time, with the rounding-up of cattle. Insofar as the rounding-up of cattle is concerned, Mr Garry Manning's evidence was that rounding up the cattle would take approximately two hours and he recalled the plaintiff walking around behind them on one or two occasions when they had to round the cattle up. His evidence is generally accepted, he not having been required to be cross-examined on that topic.

Dealing with the issues

The claim made under the Property (Relationships) Act 1984

91 It has to be recalled that one is dealing with an extremely short period in terms of the relationship between the plaintiff and the defendant. On the evidence the relationship lasted in the order of approximately 18 months from beginning to end.

92 In the circumstances where the only period during which the plaintiff took leave without pay was the period between August 1997 and April 1998 and where during the period August 1998 up to January 1999 the plaintiff worked for three days a week rather than full-time, a question becomes whether an order adjusting the interests of the parties in relation to property would be just and equitable having regard:

· to the financial and non financial contributions made directly or indirectly by or on behalf of the plaintiff to the acquisition, conservation or improvement of any of the property of the defendant or to the financial resources of the defendant; and

· to the contributions, including any contributions made in the capacity of home maker or parent, made by the plaintiff to the welfare of the defendant or to the welfare of the defendant’s family including Mr Gary Manning.

Financial Contributions

93 A short summary of the plaintiff’s financial contributions is as follows:

· the contribution of her wages between April 1998 and October 1998 - on the defendant’s evidence and case $4,470.00; on the plaintiff’s evidence and case:

I worked full time from April 1998 – 6/7/1998. From 6/798 to 18/11/999, I worked 3 days per week. My wages were, when working full time, $856.56 p/f net. When working part time, my wages varied in the vicinity of $700.00 p/f net.

10. I banked my wages into the defendant’s Westpac account, BSB 732 589, Account No. 52 3974. Mostly, my wages were banked into the defendant’s account on each second Thursday at lunchtime, through the Port Macquarie branch of Westpac. I did not always bank my full wages. Sometimes I banked only part of them, and paid debts. At this stage, I don’t have a recollection of any precise debts I paid, other than a joint debt of about $121.00 I paid to the Beechwood Hotel on 24/10/1997.”

94 The plaintiff concedes that she retained no vouchers evidencing those contributions which are generally payment by her into the defendant’s bank account of what she says was most of her wages and the defendant says was part only of her wages.

95 A. short summary of the defendant's financial contributions is as follows:

· each of the payments described in paragraph 15 of the defendant’s affidavit of 29 March 2001 and set out in Annexure "A" to the same affidavit which total $5,702.40

· payments of all relevant bills relating to the defendant’s property or their living expenses such as rates, power, telephone; all bills and expenses in respect of the defendant’s vehicle; all bills and expenses in respect of the plaintiff’s vehicle, or food and household supplies and fuel (the expenses in respect of the plaintiff’s vehicle or food and household supplies and fuel, as well as clothes and presents purchased by the plaintiff, generally put on account with the defendant’s account at Hastings Co-op)

96 The defendant’s evidence at paragraph 15 and more particularly paragraphs 37 through 39 of his affidavit sworn 29th March 2001 to the effect that he attended to payment of all living expenses, does not appear to be seriously disputed by the Plaintiff.

Non-Financial Contributions

97 Detail of the plaintiff’s several claims to having made sundry non-financial contributions have already been set out.

98 The plaintiff asserts unquantified financial contributions made by her. Even accepting her evidence in paragraph 9 of her Affidavit sworn 6th March 2001 in its entirety, and accepting further her allegation that the totality of her wages were contributed to the defendant or to the joint enterprise, her financial contributions, on the basis of her evidence as to wages, could have amounted to no more than approximately $10,750.00.

99 Set against that, the plaintiff does not appear to take issue with the defendant’s claim that he attended to all living and other expenses including utility expenses, rate expenses, fuel expenses, food, groceries and household supplies and entertainment in addition to the almost $5,700.00 worth of payments made by the defendant for the benefit of the plaintiff over the period and as set out at annexure “A” to the Defendant’s Affidavit sworn 29th March 2001.

100 Given that the plaintiff was supported by the defendant for the 8 months she had leave from work without pay, and that he paid all general living expenses as well as significant personal expenses of the plaintiff, the appropriate holding is that the financial contributions made by the defendant were much greater than that of the plaintiff and as such the plaintiff could not be said to have made substantial contributions.

101 Whilst had the parties lived together in a domestic relationship for a period of not less than two years, it may have been the case that the non-financial contributions might have received some very minor award which is exceptionally difficult to quantify, it seems to me that in no way has the plaintiff made good the proposition that failure to make an order would result in serious injustice to her [see section 17(2) of the Act]. Hence the plaintiff fails in her claim in this regard.

102 Nor in any event is it established, as it seems to me, that it would be just and equitable within the meaning of s 20 of the Act for an order adjusting the interests of the parties in relation to property to be made, having regard to the matters earlier referred to.

The claim made for a constructive trust to be declared
General Principle

103 The notion of a "constructive trust" has been imposed by courts of equity in a wide variety of circumstances and does not denote a concept of fixed meaning: Greater Pacific Investments Pty Ltd (in liquidation) v Australian National Industries Ltd (1996) NSWLR 143 at 152. Constructive trust relief has been said to be generally appropriate where:

"… a person could not in good conscience retain for himself a benefit, or the proceeds of a benefit, which he has appropriated to himself in breach of his contractual or other legal or equitable obligations to another".

Unconscionability as a guiding principle

104 Whilst the majority of the High Court in Muschinski v Dodds (1985) 160 CLR 583 did not employ a unanimous approach, the reasoning of Deane J was later adopted by the majority of the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137. It is therefore appropriate to examine his reasoning in that case.

105 The de facto couple in Muschinski purchased a property together and contributed different amounts towards its acquisition and improvement. The High Court declared that the parties held their respective legal interests upon trust for each other. In reaching this result, Deane J stated:

“…the constructive trust can be properly described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.”

106 He later added (at 615):

“The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice.”

107 Whilst acknowledging that general notions of fairness and justice are relevant to a determination of what constitutes unconscionable conduct under the principles of modern equity, Deane J at 616 held:

“The mere fact that it would be unjust or unfair in a situation of discord for the owner of a legal estate to assert his ownership against another provides, of itself, no mandate for a judicial declaration that the ownership in whole or in part lies, in equity, in that other.”

108 His honour then expressed the relevant principle of equity in the following terms:

“Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it.

The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do

.”

109 The guiding principle in the determination of whether a constructive trust will be imposed therefore focuses upon unconscionability: Parij v Parij (1997) 72 SASR 153 at 161.

Constructive trust on the ground of pooled resources

110 The parties in Baumgartner had lived in a de facto relationship for a period of about 4 years, in which time they had pooled their incomes for living expenses and fixed commitments. The couple first lived in a unit owned by the man, and later sold, using its proceeds to purchase a house which was placed in his name. The parties’ aggregate earnings were applied towards the payment of the mortgage and other household expenditures. They later separated and the man claimed that the land was his sole property.

111 In finding that it was unconscionable for the man to assert that he had sole beneficial ownership of the property, Mason CJ, Wilson J and Deane J held that a constructive trust may be imposed despite the fact that one party had no intention of holding the property on trust for the other.

112 Their Honours regarded the parties’ pooling of earnings as an arrangement designed to ensure that the earnings could be expended for “the purposes of their joint relationship and for their mutual security and benefit”. They went on to say:

“Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant's assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.”

Non-financial contributions

113 Mason CJ, Wilson J and Deane J in Baumgartner took into account the contributions of the parties, “financial and otherwise”, towards “the acquisition of the land, the building of the house, the purchase of furniture and the making of their home” (at 149; see also Gaudron J at 156). Deane J in Muschinski at 622 referred to:

“a need to take account of a practical equation between direct contributions in money and labour and indirect contributions in other forms such as support, homemaking and family care.”

114 These comments have been considered to establish, in unambiguous terms, that when determining whether it is unconscionable for one party in a de facto relationship to retain the sole beneficial ownership of property acquired in the course of the relationship, regard will be had to the manner in which the parties have conducted their relationships and the financial and non-financial contributions that each have made: Parij v Parij at 163.

115 Kirby P (as he then was) in Bryson v Bryant (1992) 29 NSWLR 188 at 203 referred to the fact that:

“Australian courts have slowly, but with an ever increasing momentum, taken the lead from the observations of Mason CJ, Wilson J and Deane J and of Gaudron J in the High Court in Baumgartner.”

116 It has been said that contributions by one of the claimants as homemaker or parent should not be regarded as inferior: Bryson v Bryant at 203. Gibbs CJ in Mallet v Mallet (1984) 156 CLR 605 stated:

“In some cases, the Family Court, rightly starting with the proposition that the contribution made by the wife as a homemaker and parent should be recognized "not in a token way but in a substantial way" (Rolfe and Rolfe (1979) FLC 90-629, at p.78,273) has gone on to conclude that, at least in ordinary circumstances, such a contribution "ought to be equally equated to the efforts of the husband who is thus freed to pursue his direct outside employment." (Wardman and Hudson (1978) FLC 90-466, at p.77,385; and see Rolfe and Rolfe, at p.78,273 and Crawford and Crawford (1979) FLC 90-647, at pp.78,410-1).”

117 Furthermore, the domestic activities of one partner may be appropriately seen as contributing towards the acquisition of property by the other partner through his or her business activities by freeing that partner from domestic responsibilities so that they can work directly for financial reward: Parij v Parij at 167.

118 On the other hand, the courts have been reluctant to recognise domestic contributions as being sufficient to give rise to a constructive trust where they were made purely for reasons of “love and affection” (ie tasks undertaken as one party’s share of the relationship without regard to whether or not those efforts would entitle one to any equitable share in the property: Bryson v Bryant at 229).

119 However, in a dissenting judgment on this point, Kirby P in Bryson v Bryant at 204 stated:

“Love and affection are all very well. By inference, they existed in this relationship for a very long time. But, in the past, such emotions have often been used as a cloak to hide the proper claims of women upon the assets of men or of the weak of either sex upon the property of the strong.”

Constructive trust on the ground of common intention

120 A constructive trust will not necessarily arise merely because one partner to a marriage or de facto relationship has made express or implied undertakings to the other to provide support and accommodation: Green v Green (1989) 17 NSWLR 343 at 353 or even to give them an interest in the property: Miller v Sutherland (1990) 14 Fam LR 416 at 423.

121 However, where a party seeks to impose a constructive trust based on actual intention, it is necessary for it to establish two matters. First, there must be a common intention between the parties that both should have a beneficial interest. Second, the claimant must have acted to his or her detriment on the basis of that common intention: Grant v Edwards [1986] Ch 638 at 651; Miller v Sutherland at 423.

122 The question of whether the necessary common intention existed between the parties may be demonstrated in various ways based on the conduct of the parties and can be implied by the Court: Miller v Sutherland at 423. Grant v Edwards was applied by Gleeson CJ in Green v Green (at 355) who discussed this notion of common intention and noted:

“…proof of such common intention can be direct, as for example, by evidence of express agreement or the making of admissions, or such common intention can be inferred from the making of contributions to the cost of a property, or meeting expenses in maintaining it. That, however, is merely one of the ways, but not the only way, in which the evidentiary basis for inferring a common intention can be laid…such conduct may also be of considerable factual importance in establishing an acting to detriment, but once again, in that respect its status is evidentiary and is not a matter of legal necessity.”

123 The line of authorities which have imposed a constructive trust in reliance on this reasoning have primarily involved situations where the common intention was expressed at the time of, or shortly following acquisition of the property. However, Nourse LJ in Grant v Edwards (at 651) did add:

“I use the expression “on acquisition” for simplicity. In fact, the event happening between the parties which, if followed by the relevant type of conduct on the part of the claimant, can lead to the creation of an interest in the claimant, may itself occur after acquisition. The beneficial interests may change in the course of the relationship.”

124 As to the question of whether the claimant has acted upon this conduct to his or her detriment, the conduct must be referable to the promise or intention and this will ultimately depend upon the nature of the conduct and of the promise or intention: Grant v Edwards at 652. Nourse LJ in Grant (at 648) held that it must be conduct on which the claimant could not reasonably be expected to embark unless he or she was to have an interest in the house.

125 Evidence of a promise to marry is arguably not capable of giving rise to any inference that the parties intended to pool their financial and non-financial resources for the purposes of their joint relationship: Stowe v Stowe (1995) 19 Fam LR 409 at 414. Repudiation of an executory contract of marriage will not, of itself, be treated as unconscionable conduct for the purposes of the imposition of a constructive trust: Public Trustee v Kukula (1990) 14 Fam LR 97 at 101.

126 As I accept the evidence given by Mr Pike to be generally reliable and as I reject the plaintiff’s evidence that the discussion in relation to the returning of title of the Berkeley Vale house took place in relation to any discussion where the plaintiff had suggested that the defendant would not be eligible for the dole, and as I accept as reliable the defendant's evidence set out in paragraphs 63 - 68 of his main affidavit, it becomes clear that no case for a constructive trust is made good.

127 On the facts proven the defendant's continued contention that after the relationship failed the Hollisdale property remains his sole property to the exclusion of any interest at all on the part of the plaintiff, does not amount to unconscionable conduct such as to attract the intervention of equity and the imposition of a constructive trust in favour of the plaintiff of any part of the property. Having regard to the manner in which both parties conducted their relationship and the financial and non-financial contributions that each have made in the course of that relationship it is not shown that it is unconscionable for the defendant to retain the sole beneficial ownership of the property which was acquired prior to the commencement of what, in the result was, all things being considered, a very short term relationship. I am neither persuaded that there was a common intention between the parties that both should have a beneficial interest in the Hollisdale property nor that the plaintiff acted to her detriment (to an extent as could conceivably justify the imposition of a constructive trust over part of the property) on the basis of any such common intention to any real extent. For the same reasons the claim to a charge for the benefit of the plaintiff over that property must fail.

128 Even had I accepted the plaintiff's evidence that the discussion in relation to the returning of title of the Berkeley Vale house had taken place in relation to a discussion where the plaintiff had suggested that the defendant would not be eligible for the dole, I would not have found that a constructive trust was appropriate or that the defendant's conduct was relevantly unconscionable conduct so as to attract the doctrine of equity and the imposition of a constructive trust in favour of the plaintiff of any part of the property. And this for the reason that, on my findings, the plaintiff at no material time had the anticipation or expectation that she had a serious or substantive interest in the Berkeley Vale property. Hence the consideration for the transfer is not shown to be inadequate and/or to constitute detriment of the type remotely qualifying for constructive trust relief of the nature sought.

129 Nor do the facts establish that the plaintiff has an interest in the property on the basis of a proprietary estoppel. In relation this claim it is appropriate to revisit the underlying principles.

Estoppel in equity

130 Estoppel by representation occurs when a person is prevented by law from acting inconsistently with an earlier representation.

" Equitable estoppel ….does not operate by establishing an assumed state of affairs. Unlike an estoppel in pais, an equitable estoppel is a source of legal obligation. It is not enforceable against the party estopped because a cause of action or ground of defence would arise on an assumed state of affairs; it is the source of a legal obligation arising on an actual state of affairs. An equitable estoppel is binding in conscience on the party estopped, and it is to be satisfied by that party doing or abstaining from doing something in order to prevent detriment to the person raising the estoppel which that party would otherwise suffer by having acted or abstaining from acting in reliance on the assumption or expectation which he has been induced to adopt. Perhaps equitable estoppel is more accurately described as an equity created by estoppel…"

The element which both attracts the jurisdiction of a court of equity and shapes the remedy to be given is unconscionable conduct on the part of the person bound by the equity, and the remedy required to satisfy an equity varies according to the circumstances of the case. As Robert Goff J. said in Amalgamated Property Company v Texas Bank [1982] QB 84 at 103:

"Of all doctrines, equitable estoppel is surely one of the most flexible."

Sometimes it is necessary to decree that a party's expectation be specifically fulfilled by the party bound by the equity; sometimes it is necessary to grant an injunction to restrain the exercise of legal rights either absolutely or on condition; sometimes it is necessary to give an equitable lien on property for the expenditure which a party has made on it… However, in moulding its decree, the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct. What, then, is unconscionable conduct? An exhaustive definition is both impossible and unnecessary, but the minimum elements required to give rise to an equitable estoppel should be stated

…. the familiar categories serve to identify the characteristics of the circumstances which have been hurled to give rise to an equity in the party raising the estoppel. In cases of promissory estoppel, the equity binds the holder of a legal right who induces another to expect that that right will not be exercised against him…. In cases of proprietary estoppel, the entity binds the owner of property who induces another to expect that an interest in the property will be conferred on him... where there has been an imperfect gift of property the equity binds the donor of the property when, after the making of the imperfect gift, he does something to induce the donee to act on the assumption that the imperfect gift is effective or on the expectation that it will be made effective…

It is essential to the existence of an equity created by estoppel that the party who induces the adoption of the assumption or expectation knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation…

The unconscionable conduct which it is the object of equity to prevent is the failure of a party, who has induced the adoption of the assumption or expectation and who knew or intended that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion. The object of the equity is not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon.”

Waltons Stores (Interstate) Ltd v Maher

131 In Waltons Stores, Mason CJ and Wilson J. put the matter as follows:

"One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has 'played such a party in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it'… Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption"

132 Informal arrangements affecting land may of course give rise to various equitable consequences. Sometimes a trust has been imposed, whether express or resulting and in some cases constructive. In other circumstances a contractual licence is recognised which is not revocable in equity except according to its terms and injunctive relief may be granted accordingly.

Proprietary Estoppel

133 Notwithstanding the restatement in Waltons Stores of the doctrine of estoppel, Mason CJ and Wilson J., and Brennan J. merging proprietary and High Trees estoppel into a single principle of equitable estoppel, it is convenient to return to the notion of proprietary estoppel which it is well-established, may give the representee a permanent free interest in real property which can be protected by right of action.

134 There are a number of authorities dealing with the proprietary estoppel principle. In Pascoe v Turner [1979] 2 All ER 945 the plaintiff had told the defendant who had been his mistress, that he had given his house to her, this being untrue. She spent 230 pounds (a quarter of her savings) on improvements, to his knowledge. Later he brought an action for possession and she counterclaimed for relief based on proprietary estoppel. The Court of Appeal ordered the plaintiff to convey the property to the defendant.

135 Cumming Bruce, Orr and Lawton LJJ, held that the principle to be applied was that the Court should consider all the circumstances. The defendant (counter claimant mistress), having at law no perfect gift or licence other than a licence revocable at will, the court had to decide what was the minimum equity to do justice to her, having regard to the way in which she had changed her position for the worse by reason of the acquiescence and encouragement of the legal owner. The defendant had submitted that the only appropriate way in which the equity could there be satisfied was by perfecting the imperfect gift.

136 Counsel for the plaintiff on instructions had throughout submitted that the plaintiff was entitled to possession. He had made no submission on the way the equity, if there was an equity, should be satisfied save to submit that the Court should not, in any view, grant a remedy more beneficial to the defendant than a licence to occupy the house for her lifetime.

137 Their Lordships held that the main consideration pointing to a licence for her lifetime was that she did not by her case at the hearing, seek to establish that she had spent more money or done more work on the house then she would have done had she believed that she had only a licence to live there for her lifetime. Ultimately the holding was that the equity could not be satisfied without granting a remedy which assured to the defendant security of tenure, quiet enjoyment and freedom of action in respect of repairs and improvements without interference from the plaintiff. The Court held that the equity to which the facts in that case gave rise, could only be satisfied by compelling the plaintiff to give effect to his promise and to her expectations. The holding was that the plaintiff had so acted that he was required to now perfect the gift.

138 There is no basis for any claim to proprietary estoppel established on the evidence. The matter is resolved by the circumstances proven. The rejection of the plaintiffs claim that she transferred her title to the Berkeley Vale property to Mr Pike induced so to do on the basis of the defendant's promises to look after her for as long as he lived and to provide financial support for her for the remainder of her life and otherwise as set out in paragraphs 10, 11 and 12 of the statement of claim, means that the claim to proprietary estoppel fails. The plaintiff’s action in transferring the property to Mr Pike is explained by reference to her belief that her claim to retain title to that property was tenuous in the extreme as is evidenced by her several attempts, on my findings, to obtain progressively small sums of money in her negotiations with Mr Pike in relation to transferring the title back to him.

139 In those circumstances, the plaintiff's claims to relief are without foundation and require to be dismissed. I order that the Statement of Claim be dismissed.

I certify that paragraphs 1 – 139
are a true copy of the reasons
for judgment herein of the
Hon. Justice Einstein
given on 5 December 2001 ex tempore
revised 11 December 2001

Susan Piggott

Associate

11 December 2001

Last Modified: 12/19/2001

CITATION:	Denise Susan Carruthers v James Ernest Manning [2001] NSWSC 1130
FILE NUMBER(S):	SC 4259/2000
HEARING DATE(S):	5/12/01
JUDGMENT DATE:	5 December 2001
PARTIES :	Mrs Denise Susan Carruthers (Plaintiff) Mr James Ernest Manning (Defendant)
JUDGMENT OF:	Einstein J

COUNSEL :	Mr R Wilkinson (Plaintiff) Mr K Lapthorn (Defendant)
SOLICITORS:	Joan Pierpoint & Associates (Plaintiff) Searson Shannon & Co (Defendant)
CATCHWORDS:	Equity - de facto relationship - domestic relationship - application for adjustment of interests with respect to property - just and equitable - pooling of resources - contributions to acquisition, conservation or improvement of property - direct financial contributions - non-financial contributions - domestic contributions - claim to constructive trust - claim of common intention - claim of unconscionability - intention to marry - promise to provide financial support and accommodation for life - alleged disposal of real property in reliance upon promises to detriment of plaintiff - equitable estoppel - proprietary estoppel
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Amalgamated Property Company v Texas Bank [1982] QB 84 Baumgartner v Baumgartner (1987) 164 CLR 137 Bryson v Bryant (1992) 29 NSWLR 188 Crawford and Crawford (1979) FLC 90-647 Grant v Edwards [1986] Ch 638 Greater Pacific Investments Pty Ltd (in liquidation) v Australian National Industries Ltd (1996) NSWLR 143 Green v Green (1989) 17 NSWLR 343 Mallet v Mallet (1984) 156 CLR 605 Miller v Sutherland (1990) 14 Fam LR 416 Muschinski v Dodds (1985) 160 CLR 583 Parij v Parij (1997) 72 SASR 153 Pascoe v Turner [1979] 2 All ER 945 Public Trustee v Kukula (1990) 14 Fam LR 97 Rolfe and Rolfe (1979) FLC 90-629 Stowe v Stowe (1995) 19 Fam LR 409 Wardman and Hudson (1978) FLC 90-466 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
DECISION:	Statement of Claim dismissed